First of all, I’m not sure if this is the right place to post my question. If you think my post should be moved elsewhere, please feel free to do so.
I just discovered that I still have the Malinche Entertainment games I bought back in 2005 in my email. Specifically, I have the full versions of Azteca, Endgame, Pentari: First Light, Greystone, and The First Mile.
I am aware that none of these games are particularly loved by the community, but I also believe that they are “historically important” as they were one of the last attempts by an interactive fiction company to commercially sell text adventures.
I have also noticed that none of these games are in any interactive fiction archive that I know of, and that they have not been commercially available anywhere for almost two decades.
I think it’s important that we have an archive of these games to protect the history of our hobby, but on the other hand, I’m aware that there is no explicit permission from the author (and considering Howard Sherman’s relationship with the community, it seems unlikely that this will ever be obtained).
My question, therefore, is: what is usually done in these cases? What is the correct course of action when the original author’s wishes conflict with the need for preservation?
Even if they’re not especially beloved games here, I’m glad someone still has them around! I know people were trying to track down the full version of Pentari First Light a few years ago with no success.
There is a legalistic answer, in that whoever is the copyright holder has the definitive word on what happens with their games. This may be the game author or publisher, or anyone who picked up the publisher assets if the publisher went bust. I am not aware of the history of these games and/or author (which sounds potentially troubled). If you create a copy of the game assets without the copyright holder’s permission, you have infringed the copyright. Depending on jurisdiction, copyright may last differing amounts of time, but usually the lifetime of the author plus 50/70 years or so, so it’s almost certainly still in force.
In some cases, publishers have waived copyright/handed things over to the community, or participated in schemes to archive or reissue games. These are reasonable steps to take, but they are not at all mandatory on copyright holders. There is a larger debate on how to preserve computer games, and a general consensus that this would be a good thing to do, but this has not to my knowledge yet translated into any legislative action.
I would say that you can take any reasonable steps to preserve your own software for yourself, but you can potentially fall foul of highly punitive laws on circumventing protection on software. In practice … I would say not likely that you would be both found out and charged with anything for doing things to preserve your own games, but I wouldn’t advertise this either.
Different jurisdictions may have different provisions but, by and large, you won’t have any particular protection if you make games available to other people without the permission of the copyright holder, even if the game is old or commercially unavailable. So do so at your own risk, but this may also put the archive sites at risk, so generally I would say do not do that without permission.
In short … there is no satisfactory answer to your question that I am aware of, unfortunately.
(source: I am a patent attorney - copyright is not my speciality however, and I have no US qualifications, and that is probably the territory of most interest for Internet-hosted things)
All that said, there are some countries that you may have noticed generally stick up two fingers at the law of copyright, and you could maybe host things there, but I would not endorse that course of action (treat others as you would like to be treated yourself, and all that).
One possible option is to upload to the Internet Archive… as an archive, they are generally pretty happy to preserve even copyrighted works, there’s already a large body of games and other software preserved there, and they’ve fought for things like a DMCA exemption for old games.
I think if they got a serious complaint at worst they might take it down, so you may also want to preserve it in some other way. But probably you’re fine!
Having looked into it a little more closely, there is a DMCA exemption seemingly allowing the Internet Archive to host certain things, but that does not mean that you have a right to download them. That will depend on your local jurisdiction, apart from anything else. There was a 2023 case involving ebooks that did not go in favour of the Archive, and I would say the situation is not settled. Offering to remove copyrighted materials on request is the minimum you would expect people to do, but it is not a defence against copyright infringement, so much as a remedy if infringement is found to have occurred.
In practical terms: yeah, give that a go, I guess.
To put that another way that is hopefully of service to someone: if you knowingly host copyrighted content without permission, a disclaimer saying ‘if you don’t like me hosting this copyrighted content, just let me know and I’ll take it down’ can potentially get you into more, rather than less, trouble.
What we need is a renegade IF archive run by somebody with nothing to lose, doesn’t care, or is based somewhere with lax copyright laws (or some combination).
Alternatively you could promise to upload them to the IF Archive in your old age when copyright expires! Or have your descendants do it 
I think if they got a serious complaint at worst they might take it down, so you may also want to preserve it in some other way. But probably you’re fine!
You can also contact Archive.org to ask for an “archive only” arrangement, which would allow them to open it up publicly once copyright expired … though I’m not sure that ~5 games would be a significant enough collection for them to do that.
We could do this at the IF Archive also.
Asking permission from the copyright holder seems the most reasonable and polite thing to do as an initial step.
Um. You dropped a little context in your quoting there.
I quoted what was relevant to the point; his relationship with the community isn’t relevant to the legal position.
Perhaps the relationship would be improved by asking for permission to archive his work so more people can play the games.
I think this would be a pretty reasonable first thing to do in any case. Is it ok if I send them to you in private?
I don’t think there’s even a way to contact that guy anymore. The old Malinche emails don’t work at this moment.
Please send us email at info@ifarchive.org and we’ll discuss it. Thanks!
Sent!
If you want to ask permission (as you should), Howard Sherman can be found on Facebook.
On 18 March 2022, he announced that Malinche Entertainment is officially back at http://www.malinche.xyz, but that site is now dead.
Here’s a list of the Malinche games from a screen grab he provided:
Prior to that, there was http://www.malinche.net and https://www.excaliber.club, also both dead. I think it was on the latter where he was offering his adventures for free, but you had to sign up and something about it felt a bit dodgy, so I didn’t sign up.
If anyone with Facebook could ask for his permission, it would be great! (I don’t have Facebook myself.)
The games have been archived in a private section of if-archive for now.
the malinche "IF"s IMVHO aren’t precisely at the top of my preservation list (according to the reviews I read, was at the best, indifferent IF, with an abundance of bugs.) but in the end, my position on the preservation being thant only the works of a certain austrian corporal turned chancellor are to be burned to the last copy, and this is not the case of malinche’s works.
So, I reckon its “closed-doors” preservation.
Best regards from Italy,
dott. Piergiorgio.