Software authors are under no obligation to release their software as freeware or release it to the public domain. A clever software company rewards its fans and gets free PR and loyalty by releasing games as freeware when they are no longer profitable, which never occurs with the most popular games. Namco has released Pac-man, among others, in classics collections on almost every console ever released.
Obviously it would be unethical to profit from someone else's work, but what about distributing it for free?
As far as the law is concerned, it's usually necessary to demonstrate damages before you can file a civil suit. In the case of a game for, say, the NES, the copyright holder of any game no longer sells or profits from it, and the hardware that plays the game is no longer sold. You couldn't buy a new copy of the game if you wanted to, so the copyright holder suffers no monetary loss if you elect to download the game from the internet. "No harm, no foul", right? However, Nintendo is planning to sell every console game they've ever released for the upcoming Nintendo Revolution, so they will be able to demonstrate that they are hurt by the distribution of NES ROMs. Any other copyright holder could easily claim that they intend to sell the game again in the future, whether they plan to or not. How much damage they could actually prove in court is mere speculation, but most people couldn't afford the legal expense of fighting them.
Note that programs for the PC, including DOS, are not in the same situation as console games because every PC ever made is backwards compatible with the original IBM XT by virtue of using the 80x86 instruction set. Modern operating systems may render older programs unusable, but your system is still entirely capable of running operating systems that could run the software. Utilities clearly exist to overcome problems of clock speed and incompatibility. "No harm, no foul" could be claimed on the grounds that a program is no longer sold but, unlike the situation with obsolete consoles, the copyright holder could begin selling the program again and most people would be able to locate software that would make it playable, or the copyright holder could provide it.
A civil suit is probably unlikely because the damages would be minimal for an old game that is no longer sold. That may be part of the reason why the criminal justice system allows such harsh penalties for piracy: you can still be punished with large fines and jail time even if a copyright holder has suffered no damages. In theory, even though Microsoft would suffer no damages if you distributed DOS 1.0 because it is not a competitor of any current operating system and is no longer sold, you could still be held criminally responsible for distributing copyrighted material and face jail time.
The question of whether or not software should become legally distributable is an easier question in my opinion. Obviously it's disappointing, even unfair, when a copyright holder refuses to sell or give away a game one of its games. No one wins in that scenario.
Even so, the patent and copyright systems were invented as a contract between owners, government, and the public. When you patent an idea or produce an original work, the government promises to protect your rights to that invention, in exchange for it eventually being given back to the world. No one owns the works of Shakespeare, nor should they. They belong to everyone now. Within Shakespeare's lifetime, he had every right to the protection of his work, had copyright law existed at the time.
I believe this system is important to the rights of authors, and also to the creation of new games. Modern games can be extremely expensive to produce, but any company's cost-benefit analysis will include the possibility of a small amount of revenue for years after a game is no longer sold in stores, such as a re-release in a classics collection. Many games, and movies, and other media, take a loss during their initial run. Even so, they have a lifetime to make the money back through sales and rentals on existing media, and again years or even decades later when new media replace them. (Is everybody ready to switch to blue laser, high definition DVD?) If my game takes a loss on the PS2, maybe we'll get some of it back when we sell it again on the PS3. PC game took a loss? Well, at least we can sell it again in 10 years as a Collector's Edition. Games that are re-released as a special boxed set sometimes sell for more than they did when they were new. If a copyright holder was obliged to continue selling a game in order to maintain their rights to it, this would influence their decisions in how much they spent on development, or even whether or not they create a new game. A software developer has to decide if they will be able to make enough money in the initial run of a game to make back the money they invested in it. If the company can't afford to take a loss, or is unsure of how a game will be received, they make elect not to make that game or sequel that someone would have surely enjoyed. What if an innovative game is ahead of its time and won't really start to sell for years?
I believe that every company has the right to retain their rights to a game that they are no longer selling. I just think that they're foolish to stop distributing it at that point. If you can't convince anyone to pay even a few dollars to download it off your site, at least earn some PR and fan loyalty by making it freeware. I'm not happy with companies that act that way, but I defend their right to be jerks if they choose to. Any release of freeware, or of a copyrighted material to the public domain, must be voluntary. If I had written a popular game, I would want to be protected by the law for as long as I felt like it.
My advice is to continue to encourage fans to contact software companies and ask them to make their games available. Businesses know that people are lazy. For every one person who is ticked off enough to write an email, only 1/10th as many people will care enough to phone, and only 1/100th will care enough to write a letter. (Not exact data, but it went something like that in my business courses in college). That means that a written letter carries more weight than an email. If you want to get an abandoned game released as freeware, why don't you try writing a polite and professional letter and see if they respond. They probably will at least give you the time of day, even if they don't or can't give you what you want.
In the meantime, I have a small number of petitions going at
www.classicdosgames.com/petitions.html. I selected shareware games because shareware authors tend to be the most grateful to their fans and often give back to the community be releasing their games as freeware. The exception is Zork, and you can read about the reasons for that petition in this other thread:
http://www.dosgames.com/forum/viewtopic.php?t=6128.
I hope that answers the question!
