The Video Game History Foundation (VGHF) and the Software Preservation Network faced a major setback in their ongoing campaign to preserve and grant research access to out-of-print video games.

The U.S. Copyright Office has formally rejected an exemption proposal to the Digital Millennium Copyright Act (DMCA) that would have enabled libraries and archives to share digital versions of older games remotely, GamesIndustry.biz reported.

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This decision directly impacts the Foundation's ability to make rare, inaccessible games available to researchers and historians, leaving thousands of games at risk of becoming "critically endangered."

A Legal Hurdle For Game Preservation Efforts

Since 2021, the VGHF has advocated for an amendment to Section 1201 of the DMCA that would permit these organizations to "break copy protection on games in order to make them remotely accessible to researchers."

Currently, strict anti-circumvention laws make it illegal to bypass digital rights management (DRM), effectively blocking historians and archivists from granting digital access to a vast trove of historical games.

Shira Perlmutter, register of copyrights and director of the U.S. Copyrights Office, said that the proposal did not satisfy requirements to ensure fair use for "multiple simultaneous use" of software.

She also added that "the proponents have not met their burden of showing that the proposed off-premises uses in the video game class are likely to be fair," adding that the exemption request did not sufficiently address technologies or issues related to emulation.

The Game Industry's Opposition

Meanwhile, the Entertainment Software Association (ESA) voiced strong opposition, suggesting that the VGHF’s proposal did not clearly identify user requirements or justify the purpose of accessing older games.

In a statement, the ESA argued that the VGHF’s plans for off-premises access lack sufficient security measures to prevent misuse. According to the VGHF, the ESA “declared [it] would never support remote game access for research purposes under any conditions."

This decision is not the first clash between the ESA and preservationists. In 2018, the ESA similarly opposed a DMCA change to enable the preservation of abandoned online games, reinforcing the game industry's reluctance to support modifications to DRM laws.

A Dire Future For Game Preservation?

In July, the VGHF published a report saying that 87% of video games are now "critically endangered," with most out-of-print titles effectively lost to time without intervention

"The game industry's absolutist position," wrote the VGHF in response to the latest decision, "forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable."

"We will continue our advocacy for greater access and legal allowance for video game preservation and [will work] with members of the game industry to increase internal awareness around these issues," the Foundation stated.

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