Video Game Libraries Denied DMCA Exemption for Remote Access to Classic Games

The US Copyright Office has announced that it is denying a request from video game archivists to create a legal DMCA exemption for sharing Internet-accessible emulated versions of their physical game collections with researchers. This decision forces researchers to travel to far-flung collections for access to the often-rare physical copies of the games they’re seeking.

The Register of Copyrights sided with the Entertainment Software Association and others who argued that the proposed remote access could serve as a legal loophole for a free-to-access “online arcade” that could harm the market for classic gaming re-releases. Despite a study by the Video Game History Foundation that found 87% of older game titles are currently out of print, the Copyright Office felt that the proposed safeguards were not specific enough to prevent market harms.

The decision notes that a DMCA exemption already exists for non-video-game computer software that is merely “functional.” However, the fair use arguments that allow for that sharing do not apply to video games because they are “often highly expressive in nature.”

The Video Game History Foundation has called out “lobbying efforts by rightsholder groups” that “continue to hold back progress” for researchers. The organization argues that the status quo limiting remote access “forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable.”

Although the decision was disappointing, the Video Game History Foundation is proud of the work they’ve done and the impact it has had. The organization will continue to advocate for access to video game history and preservation.

The Copyright Office will consider arguments for and against the exemption again in 2027 as part of its triennial rulemaking process.