But I wish someone who had the legal knowledge would weigh in and defend the attorney folk in this particular area.
The answer is easy.
First let's talk about adverse possession, or, if you will, the neighbor-shitting-on-your-lawn problem.
This, like most of our laws, comes from colonial britain. And it makes sense.
For one, it discourages wasted land. Someone has property. It's valuable property, but it's just sitting there, not being used. This is wasteful.
For another, someone can't just shit on your land. It has to be hostile, it has to be actual, it has to be open and it has to be notorious. This means that someone must be on your land, knowing it isn't your land, for the statutory period (usually along the lines of 14-20 years), without hiding that he is there, and without your permission.
How often do you think this actually happens? Even that time frame alone is discouraging.
As for IP protection, it's again a bit of a necessity. The easiest example is Mickey Mouse, so we'll start there. Technically, under the old laws, and IP protection Disney had should have expired years ago. But Disney is basically built on the Mickey brand. What would happen if Mickey became public property? Every jackass would be profitting by creating legal Mickey merch. You'd have porn with Mickey. Legally. What would that do to Disney? To the brand? To the company?
Disney would be ruined. Jobs would be lost. It's not like they're sitting on the IP, wasting it, they're actively using and capitalizing on it. It would be unfair to them to give it to the public. It would have discouraged their building him as far as they did.
Take it to videogames now. What if the same thing were to happen to Mario? Suddenly the shelves are full of games starring Mario. These are all legal, unlicensed games thrown together by the makers of Bible Quest. Some feature nudity, some feature scripture, none feature fun.
Mario sales die. Mario is no longer a sign of a good game, usually quite the opposite. Look what five years of crappy games did to Sonic or Lara Croft.
Yes, giving a game for free is different, but the concept and the laws are the same. What, did you expect that they laws would have magically changed in 2000? Of course not. None of this was relevant 15 years ago because, like movies, old games still sold as well as new games. Technology started moving quicker and old games became dated faster. Syndicate would no longer sell well, partially because it's almost painful on your eyes the first 10 minutes, partially because you have to jump through hoops to get it to run.
But this is a recent problem.
Laws haven't adapted because there's been no need. Congress is wasting enough time on baseball steroids, do you really want them to focus on letting you play games now?
Don't blame the lawyers. The laws are good. Blame the corporations for blindly hiding behind them. Nothing says EA can't start giving it's old games away if they wanted to. It's the executives that think it will damage them somehow. I'm not sure how, seems pretty obvious that making a formerly great game free will only renew interest in the IP, but I'm sure they have their rationale.