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Is downloading Windows 95 and running it just because I'm curious about it legal?

  1. Purpose and character of the use: it's noncommercial, and I am doing it to learn about the software, but I'm not sure it's really "educational" because there is little or no practical value anymore in knowing how to use Windows 95.
  2. Nature of the copyrighted work: It is certainly not just a fact or idea, and I don't think it's substantially beneficial to the public for it to be in the public domain (although a case could be made that it is, because it is bringing exactly zero benefit to Microsoft and would have at least some benefit to others if it was in the public domain)
  3. Amount and substantiality: I would be using the entire OS.
  4. Effect upon work's value: None, Microsoft doesn't sell Windows 95 anymore and it could not reasonably be considered a substitute for modern Windows versions.

One of the four considerations does indicate fair use, one indicates non-fair use, and two are questionable.

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  • 5
    Side note 1: did you check whether MS offers trial versions of win 95? Side note 2 from EU: over here, it's perfectly legal to re-sell software licenses you own. Just checked, and found Win 95 installation media with proper license for about 10 €. Aug 1 at 13:08
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    Your question has an oxymoron. You cannot pirate abandonware by the mere definition of it being abandonware. Im not sure any version of Windows is abandonware though.
    – Neil Meyer
    Aug 2 at 10:13
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    "I'm not sure it's really "educational" because there is little or no practical value" - does there need to be practical value for it to be "educational" - schools were teaching Latin for years after it fell out of use, but you'd still call it educational...
    – komodosp
    Aug 2 at 10:21
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    @NeilMeyer Why would you have trouble running a 32-bit OS on 64-bit hardware? Running a 64-bit OS on a 32-bit CPU would certainly be a problem, but running a 32-bit OS on a 64-bit CPU is not only possible, but was actually the recommended approach for running Windows XP in its later years. The vast majority of XP installations on 64-bit hardware were 32-bit XP, not 64-bit XP. They only recommended 64-bit XP for people who needed the extra address space (which was mostly just very high-end machines back then.) It wasn't until Vista that running a 64-bit OS became normal.
    – reirab
    Aug 2 at 11:42
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    @NeilMeyer - regardless of whether an old release of Windows could even properly be considered abandonware (since there are current releases), an old program being abandoned by a company doesn't suddenly remove all IP considerations, or make them fair game (as a practical matter a company may not choose to enforce those rights, but that's not a legal requirement). Aug 2 at 17:01

2 Answers 2

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Downloading commercial software without permission would be infringement, unless an exception to copyright (probably fair use in the US) applied. That the maker and copyright owner no longer supports or sells this software would not change that. The first-pass fair use analysis in the question is reasonable, and a court might find this to be fair use, but it is far from assured that it would be so found. US statutory damages could be as high as $150,000 or as low as $750 if Microsoft sued and won.

However, as you say, there is no current or plausible future market for Windows 95, and there are lots of copies on CDs and other media floating around, easily available if anyone wanted a copy. I suspect that Microsoft would not choose to take such a matter to court, even if they became aware of it. If Microsoft does not choose to sue, there is no enforcement action by anyone. Of course they could choose to sue, it is their right to sue.

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No, but you can find a runnable library copy of much of the most important abandonware legally at the Internet Archive, and in particular, its Software Library archive and Internet Arcade.

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  • So their copy is legal, but downloading and running it is illegal?
    – Someone
    Aug 1 at 20:25
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    @Someone My understanding is that they are legally authorized to distribute the abandonware in the archive. I know that some of their books are available only by “check-out,” to a single user at a time, as they are considered a library.
    – Davislor
    Aug 1 at 20:31
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    @Someone If I remember correctly, they applied for and received a special DMCA exemption as a legally recognized library.
    – ssokolow
    Aug 2 at 3:16

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