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It is not about "preservation" but "abandonware" as those "abandonware" sites can be made to remove copyrighted content with a cease and desist order plus the OP wants free games not preservation.
No longer been sold does not remove the copyright nor relates to preservation.
Not much a matter of legality, but a matter of digital ethics.
Even if "preservation" of software was found to be illegal in the upcoming trial, it's not stopping anybody, but it's only making things harder, and fuelling a community that strangles out the free market and indie developers. If that is what you want, at the cost of "copyright enforcement", that's on you.
Would those "digital ethics" include ignoring:
1) abandonware is not legal
2) copyright infringement of protected products.
3) developer, publisher rights as owners of the games.
4) software supplied "as is" at the time of release.
etc and the OP not wanting to buy games but wanting them for free as they classify ALL games not just "resolutions" when they used the wording.
The Witcher 3 should be free because it not longer receives updates?
What about Mass Effect 1,2, 3, the original versions?
Dragon Age 1, 2, 3?
And you need to own the copyright to determine the status of "preservation" not simply because you believe "not been sold" equates to preservation.
As stated NOT been sold does NOT remove the copyright nor give you rights over a game after all you own a licence to download, install and play a game only and not to determine it's fate and that licence you own grants not rights of ownership in any form.
https://store.steampowered.com/eula/292030_eula_0
2. WHAT YOU GET WITH THE GAME
We (meaning CD PROJEKT RED) give you the personal right (called a 'licence' legally) to download, install and play The Witcher 3: Wild Hunt on your personal computer as long as you follow these Rules. This licence is for your personal use only (so you can't give a sublicense to someone else) and doesn't give you ownership rights.
At all times we continue to own all of The Witcher 3: Wild Hunt, all in-game content, any updates or additional content for them, manuals or other materials about them and the intellectual property rights in them, including all copyright, trademarks, patents and legal things like that (all of this together we call the ‘Game’).
You're only looking at a fraction of this equation, the legal fraction of it. The bigger picture is that it's going to sting if Archive loses the legal dispute, because with something that large, and that many users disappearing from popularity, something worse is going to take it's place. Something illegal, something harming the gaming industry, something that will have those pieces of software, and attract the people that are now completely out of a legitimate option.
The guidelines need to be set at something other than "copyright holder always gets the last say", or there'll be hell to pay in this industry, because people will be far less inclined to spend any money on the industry if they're forced to go to an illegal and cost-free part of it just to get a retro game. Like it, or love it, the copyright laws will, eventually, be it now or later, burn this entire industry to the ground. They're making videos of their games illegal (Nintendo), they're making distribution of non-marketed software illegal, they're fuelling and entire illegal market doing it.
Abandonware can be seen as "free" in the sense that the rights holders do nothing with the software to re-release or remaster it on modern platforms.
But it legally most certainly isn't "free".
While I currently stand on the moderate side of this argument, I can feel that the latter has more merit and leeway in finding a solution to this issue than the former.
Need For Speed Porsche, Black & White, Vietcong and numerous other great abandoned games would like to have a word with you.
Because updating them to run on modern systems and resolutions is some work and if they actually get to that they can just sell it as a "remaster".
Isn't that what Night Dive are doing?
Although some games are in "rights hell", e.g. No One Lives Forever - that game is disputed between more parties.