Preserving Pixels: The DMCA and the Quest to Preserve Video Gaming's Legacy

Abstract

Video games have fundamentally transformed how humans learn, play, and connect, becoming essential cultural artifacts that warrant careful preservation for present and future study. Yet, video game preservation has emerged as a critical challenge for cultural institutions as the medium rapidly evolves and early works become inaccessible due to technological obsolescence and legal barriers. Without immediate action to address the limitations of current Digital Millennium Copyright Act ("DMCA") exemptions for video game preservation, libraries, archives, and museums risk permanently losing access to historically significant games, with studies showing 87% of pre-2010 video games are already inaccessible. Congress should amend the DMCA to establish broader exemptions for video game preservation by cultural institutions that recognize emulation as a necessary and cost-effective preservation tool, while implementing reasonable access controls that protect copyright holders' legitimate market interest. While scholars have extensively documented the technical challenges of video game preservation, and others have analyzed the DMCA's impact on digital preservation generally, existing literature has not comprehensively examined how the triennial rulemaking process specifically impedes institutional efforts to preserve video games in their playable state. This Note analyzes eight years of DMCA rulemaking proceedings to demonstrate how the temporary nature and narrow scope of current exemptions create unnecessary barriers for institutions, especially those using emulation as a preservation solution, while proposing both expanded temporary exemptions and broader statutory reforms that would enable preservation without undermining the commercial reissue market. By examining the technological necessity of emulation alongside the development of DMCA exemptions, this Note provides the first detailed analysis of how misalignment between preservation needs, technological solutions, and regulatory frameworks threatens both the historical record of video games and scholarly access to this culturally significant medium.

Headnote

Video games have fundamentally transformed how humans learn, play, and connect, becoming essential cultural artifacts that warrant careful preservation for present and future study. Yet, video game preservation has emerged as a critical challenge for cultural institutions as the medium rapidly evolves and early works become inaccessible due to technological obsolescence and legal barriers. Without immediate action to address the limitations of current Digital Millennium Copyright Act ("DMCA") exemptions for video game preservation, libraries, archives, and museums risk permanently losing access to historically significant games, with studies showing 87% of pre-2010 video games are already inaccessible. Congress should amend the DMCA to establish broader exemptions for video game preservation by cultural institutions that recognize emulation as a necessary and cost-effective preservation tool, while implementing reasonable access controls that protect copyright holders' legitimate market interest. While scholars have extensively documented the technical challenges of video game preservation, and others have analyzed the DMCA's impact on digital preservation generally, existing literature has not comprehensively examined how the triennial rulemaking process specifically impedes institutional efforts to preserve video games in their playable state.

This Note analyzes eight years of DMCA rulemaking proceedings to demonstrate how the temporary nature and narrow scope of current exemptions create unnecessary barriers for institutions, especially those using emulation as a preservation solution, while proposing both expanded temporary exemptions and broader statutory reforms that would enable preservation without undermining the commercial reissue market. By examining the technological necessity of emulation alongside the development of DMCA exemptions, this Note provides the first detailed analysis of how misalignment between preservation needs, technological solutions, and regulatory frameworks threatens both the historical record of video games and scholarly access to this culturally significant medium.

Introduction

Imagine if the only way to watch Titanic was to find a used VHS tape, and maintain your own vintage equipment so that you could still watch it. And what if no library, not even the Library of Congress, could do any better-they could keep and digitize that VHS of

Titanic, but you'd have to go all the way there to watch it. It sounds crazy, but that's the reality we live in with video games, a $180 billion industry, while the games and their history disappear.

Kelsey Lewin1

With the dawn of our digital age, there is a growing concern that society may lose digital information over time, and digital games (a.k.a. video games)2 are particularly at risk of loss. A recent study by the Video Game History Foundation and the Software Preservation Network ("SPN") determined only 13% of video games released before 2010 are still commercially available-a figure comparable to the survival rate of pre-World War II audio and American silent-era films-two other significant "at-risk" entertainment mediums.3

Widespread interest in out-of-market video games has fueled the continued growth and success of the commercial video game remake and reissue market.4 However, the commercial market alone cannot adequately preserve video games in the long-term.5 Consequently, almost 90% of all "historic"6 video game releases are inaccessible to both researchers and recreational gamers alike.7

This dire need for preservation calls for immediate action, specifically from cultural institutions such as libraries, archives, and museums ("LAMs"), which play an important role in preserving our cultural heritage for future generations-many of which already seek to preserve video games.8 For example, the Museum of Modern Art ("MoMA") in New York City has acquired video games for over a decade with the goal of studying, preserving, and exhibiting video games as part of its "Architecture and Design collection."9 As of November 2023, MoMA has thirty-six games in its collection and an exhibit showcasing "outstanding examples of interaction design," featuring playable video games such as Passage, as well as interactive demonstrations for longer games and emulations of games that are no longer playable on their original hardware.10 Other notable institutions preserving video games include the

Strong Museum of Play, the Video Game History Foundation, and the Stanford University Library-all of which employ a variety of preservation approaches.11

Despite LAMs demonstrated interest, these cultural institutions face many challenges in their video game preservation efforts.12 SPN points out video game scholarship is a "growing interdisciplinary field that faces impediments unlike those of any other discipline."13 As complex digital and physical objects, video game preservation presents a myriad of technical and practical challenges.14 However, preservationists can surmount these barriers using innovative technical solutions such as emulators,15 which simulate the environment of out-of-date computing hardware-although emulation itself raises additional legal questions.16

Beyond these practical challenges, LAMs face regulatory barriers, particularly under the Digital Millennium Copyright Act ("DMCA"),17 which present a significant hurdle for institutions preserving video games for current and future study.18 At the time of writing this Note, the language of the DMCA limits the ability of LAMs to provide remote access to video games in their collections, and further limits on-premises access of preserved games to one user at a time.19 These limitations under the DMCA's current temporary exemptions create a serious impediment to video game scholarship and reveal an inconsistency in the treatment of video games and other preserved materials.20

This Note addresses the crucial gaps in the literature regarding the practical difficulties of video game preservation for LAMs under the current DMCA scheme. The focus is primarily on the DMCA, although video games, as complex copyright-protected works, and their preservation raise a variety of legal issues.21 The rationale behind this targeted approach is driven primarily by two key factors: (1) Video game preservation and affiliated preservation tools such as emulation often implicate the anti-circumvention provisions of the DMCA;22 and (2) when implicated, the DMCA might otherwise prevent institutions from exercising their right to fair use.23

Part I discusses the value of video games as cultural heritage, and the public's interest in preservation. Part II first provides a background of video games as a rapidly evolving medium, and next considers practical preservation challenges. Part II finally explores emulation as the current best option for video game preservationists. Part III first situates video games within copyright law, and next considers emulation as a "noninfringing use" under the fair use doctrine. Part IV discusses key provisions of the DMCA and its affiliation with video game preservation. Part V begins with an evaluation of the temporary exemptions as they exist at the time of writing this Note,24 as well as the practical implications for LAMs under the current framework. Part V also critically analyzes past exemption proceedings. Finally, Part VI walks through some potential solutions that would facilitate preservation without impeding on the commercial reissue market.

I. The Importance of Video Game Preservation

This Part first presents evidence that video games are cultural heritage, and next evaluates public interest in video game preservation by looking at both the commercial reissue market and community-driven preservation efforts.

A. Video Games as Cultural Heritage

Video games as a medium have burgeoned into a multifaceted industry with profound economic, cultural, and academic importance. Economically, the video game industry has outpaced other traditional entertainment sectors, generating billions in revenue, fostering technological innovation, and creating a myriad of job opportunities ranging from game design to e-sports management.25 The e-sports market alone-which refers to "regional or international video gaming events in which professional and amateur players compete against one another"-generated over $1 billion in 2022, and is projected to increase to almost $2 billion by 2025.26

Culturally, video games have evolved into a potent medium of expression, weaving intricate narratives that reflect societal values, challenge conventions, and offer immersive experiences which bridge global communities.27 They have become platforms for social commentary, artistic experimentation, and cross-cultural exchange.28

Academically, video games positively contribute to a host of disciplines and fields, and offer scholars unique opportunities for interdisciplinary study.29 Generally, games have been integral to the human experience for at least five thousand years,30 and academics valued game studies and game collection long before video games were even invented.31 Video games specifically offer interesting and unique opportunities to discover and learn about the human experience, enhance education, and act as immersive learning tools.32 Notwithstanding common skepticism regarding video games,33 some academics have even suggested video game study is necessary to fundamentally understand human life and civilization.34

B. Public Interest in Video Game Preservation

Video games play an important role in society, largely because people love to play them, and the public continues to demonstrate interest in video game preservation. Legacy servers35 and cult-classic36 games demonstrate a public need for additional preservation efforts. Dedicated fans operate legacy servers as a means of providing access to older versions of games no longer supported by their original publishers.37 These platforms serve not only as a repository for nostalgic experiences, but also as critical archives for the preservation of gaming history.38 This interest also underlines a broader public desire to revisit and preserve gaming experiences that shaped the industry and its culture.39

Cult-classic games are games that foster a dedicated fanbase for years following their release.40 Although many of these titles did not achieve mainstream success upon initial release, they achieved recognition over time for their innovative contributions to the gaming landscape.41 The popularity of such games highlights the public's interest in maintaining a diverse archive of video game history, beyond just the commercially successful titles.

Similarly, the trend towards remastering and re-releasing classic games is a testament to the private sector's recognition and capitalization on nostalgia and demonstrates the importance of documenting and preserving historical games.42 Public reception to these games also demonstrates the commercial incentive of thorough preservation.43 Unfortunately, the commercial reissue market alone is insufficient to ensure long-term preservation, as the reissue market's focus on profitability often excludes historically significant games.44

Community-driven preservation efforts remain vital for maintaining access to legacy video games, especially those no longer supported by their original developers. Projects like Multiple Arcade Machine Emulator ("MAME") and emulation servers for games like Star Wars Galaxies highlight fans' dedication to keeping these games playable.45 While these initiatives often face legal copyright challenges, they underscore the significant role grassroot movements play in video game preservation.46

Moreover, public reliance on piracy to fill the gaps left by the commercial market highlights the pressing need for systemic preservation solutions.47 While piracy is a contentious issue, its role in video game preservation cannot be entirely overlooked.48 Some even argue, in certain cases, pirated versions of games have served as unofficial archives for titles that would otherwise be inaccessible, pointing to a complex relationship between copyright infringement and preservation efforts.

II. The Challenges of Long-Term Video Game Preservation

This Part discusses the challenges of preserving video games for future generations' access, study, and enjoyment. It begins with a discussion of the unique characteristics of video games, specifically their rapidly evolving nature. Next, it evaluates the practical challenges of video game preservation and finally, introduces emulators as a tool for preservation and emulation's associated legal challenges.

A. Video Games as a Rapidly Evolving Medium

This subpart first provides a brief history of video games as a medium and their rapid technological advances. Next, it discusses modern video games and the associated preservation challenges resulting from such technological developments.

1. Rapid Technological Advancements

Video game history illuminates the extraordinary technological advancements that transformed the medium into a dynamic and evolving form of entertainment and art.49 From the early days of pixelated graphics and simple gameplay, the industry experienced several revolutions, each marked by significant technological leaps. Interestingly, the early days of video games began in scientists' research labs.50 In 1958, William Higinbotham introduced what is often recognized as the first video game as part of an exhibit demonstrating his lab's instrumentation.51 As mainframe computers became more commonplace in governments, businesses, and universities, more people began creating computer games.52

Throughout the 1970s, the video game industry flourished in arcades, introducing the world to iconic games like Pac-Man and Super Mario Bros.53 These games, though dated by today's standards, laid the foundation for future storytelling and gameplay innovation.54 During the 1970s and '80s, the Atari 2600 and the Nintendo Entertainment System ("NES") pioneered the concept of home gaming consoles, kicking off the "second generation of video game consoles,"55 which brought legendary games like Space Invaders, Super Mario Bros., and The Legend of Zelda into players' homes.56

Toward the end of the 1980s, arcade popularity decreased while home-consoles gained traction, widely increasing video game popularity and accessibility.57 During this period, developers created the first online games, and role-playing games-games where users "create a character and move through different worlds"-gained a following shortly after.58

The 1990s and 2000s heralded the era of three-dimensional ("3D") gaming, with titles like Super Mario 64 and The Legend of Zelda: Ocarina of Time redefining spatial and movement dynamics in video games.59 Video games further integrated with the internet, significantly impacting the social dynamics of gaming through online multiplayer experiences in games like EverQuest and World of Warcraft.60 Additionally, the world saw the introduction of handheld and portable gaming devices with the release of Nintendo's Game Boy in 1989.61 Handheld game systems grew in popularity throughout the 2000s and were largely succeeded by the massively successful modern mobile gaming market.62 Gaming on personal computers ("PCs") also saw a rise in popularity throughout the 1990s.63 PCs had superior processing power compared to consoles, and therefore could create intricate worlds and complex gameplay not seen before on consoles of the era.64 PC gaming also attracted historic numbers of female players with the release of Will Wright's The Sims-a life simulation game-which became the best-selling computer game of its time and the most popular game with female players.65

Since the 1990s, the modern gaming industry experienced rapid progress in video game technology, spurred by competition between massively successful video game publishers.66 Nintendo consistently targeted a family-oriented market, with their Wii and Switch attracting entirely new audiences to video games.67 Conversely, Microsoft and Sony focused on advancing the technological capabilities of their consoles, and PC gaming became increasingly more accessible through digital game distribution.68

2. Next-Gen Games and Server-Dependent Gaming

Modern gaming introduced high-definition visuals, immersive world-building, and sophisticated gameplay mechanics, blending entertainment with experiences akin to cinematic storytelling.69 Competition within the industry resulted in higher performance capabilities and "nearly photorealistic" graphics.™ As mentioned, Sony's PlayStation and Microsoft's Xbox have been at the forefront of this competition, continually pushing the boundaries of hardware capabilities and gaming experiences.71 Nintendo, often takes a different approach, focusing more on innovative gameplay over raw hardware power.72

Additionally, digital gaming distribution platforms such as Steam-which allow users to download games to their devices without purchasing a physical copy of the game-have become increasingly popular, making PC gaming more convenient.73 The reduced cost of digital distribution facilitated the growth of independent gaming studios, and independently released games (indie games) gained significant traction globally, thanks to their creative and unique gaming experiences.74

Online gaming has grown to dominate the video game market.75 Since 2010, the rise of casual social gaming led to the development of many different genres of online video games, and the online gaming industry continues to gain popularity.76 These games rely heavily on networking technology, requiring players to connect via local or wide-area networks, often via the internet.77 Massively multiplayer online games ("MMOs")78 historically used a subscription model for monetization which created additional challenges for developers, such as costs of server maintenance and online security, and continuous content updates to keep players engaged.79

Consequently, more online multiplayer games shifted toward the "live service model" which offers studios greater flexibility and profitability through alternate monetization options such as in-game purchases or battle passes that encourage players to invest real-world currency in the game to receive perks or customizations.80 As a result of these market and technological developments, games have "slowly turned from a good into a service" directly affecting the availability of games and increasing preservation challenges.81

B. Practical Challenges of Video Game Preservation

This subpart explores the practical challenges of video game preservation, including the challenges of hardware and software obsolescence, the long-term unsustainability of physical preservation, the increasing shift toward digital distribution and online gaming, and loss of source code and ambiguity of rightsholders.

The rapid pace of technological advancement renders hardware and software obsolete at an accelerated rate, making preservation efforts "a race against time."82 Games are inherently tied to the platforms they were developed for, and reissuing games for new hardware is complicated by unique system architectures, software requirements, and hardware features of the original platforms.83 This poses a significant challenge for both commercial reissues and video game preservationists, as older games are often incompatible with contemporary systems.84

For example, when Doom released in 1993, it needed to be reworked for each console it was ported to, highlighting the non-trivial nature of making games playable outside of their native platforms.85 Since Doom was an "exceptionally popular game," the studio justified the time and resources expended to release it across different platforms; however, less commercially successful games may not receive the same treatment.86

As technology advances, older hardware platforms and their affiliated proprietary software become obsolete, making it increasingly difficult to access and play both vintage games and games that are only a few years old.87 This issue is compounded as games are typically designed for specific hardware with unique peripherals, and therefore need to be manually ported or modified for play on modern systems.88 Consequently, as hardware ages and fails, and as software dependencies become outdated or incompatible with new operating systems, the ability to experience games as originally intended diminishes.89

Similarly, physically preserving objects containing digital information presents special challenges.90 Many LAMs "physically preserve" video games by collecting physical copies of games, as well as the hardware and components required for usability, such as consoles and game controllers.91 Over time, these devices physically deteriorate due to issues such as bit rot, corrosion of electrical contacts, and deterioration of magnetic storage.92

Physical preservation also does not ensure playability, as the necessary hardware to run these games may no longer be operational or available.93 Additionally, physical preservation of online games and multiplayer games is almost impossible as player data is typically stored on publisher or developer-operated servers, putting player data at risk of loss.94 Furthermore, acquiring physical copies of legacy games and hardware on the second-hand market can be "prohibitively expensive."95 Therefore, cultural heritage institutions focused on preserving items for centuries must contend with the fact that the lifespans of these physical materials are inherently limited and potentially cost-prohibitive.96

Preserving games in their "playable states" introduces additional challenges, especially for multiplayer and online games which-beyond the game's initial release-often include added content that evolves over time through patches, expansions, and downloadable content ("DLC").97 Preserving these elements requires conserving game code, as well as the associated online infrastructure which becomes increasingly challenging as original servers are decommissioned.98 Moreover, preserving social experiences presents its own challenge-and as many online and multiplayer games center around social experiences-it is especially challenging to meaningfully preserve these games.99

The shift to selling games on digital marketplaces further complicates preservation, as often no physical game copies exist, and the potential for digital stores' closures leaves games without a reissue platform.100 Likewise, digital platforms themselves are subject to obsolescence and degradation, as evidenced by the Nintendo 3DS and Wii U storefront closures in March of 2023 which removed 2,431 digital titles from commercial circulation.101

Finally, perhaps one of the most critical issues in the field of video game preservation is the frequent loss of source code102 by developers and production companies.103 Source code is comparable to film negatives, as it contains "the raw data that can be used to recreate the game without the need to reproduce the original hardware environment."104 Losing code significantly impedes efforts to emulate, migrate, or otherwise preserve games.105 The loss of source code not only affects the playability of games but also erases a significant part of video game history and development culture.106

Emulators are software applications designed to replicate the functionality of one computer system on another computer system.107 In the context of video games, emulators replicate the operating conditions of out-of-date hardware (i.e., a vintage game console or arcade machine) on a modern computer system (i.e., a PC browser), thereby facilitating play of obsolete games on new platforms.108 These emulated "environments"109 can mimic both the hardware and the peripherals of the original gaming system.110 The goal of emulators is to "replicate the exact operation of another hardware and software environment."111 For example, if a game needs access to a specific feature of the NES, the emulator will translate and emulate that feature on the host device.112

Emulation offers LAMs a solution to the practical preservation challenges around obsolescence and physical degradation, as LAMs can create digital copies of games that preserve both the underlying code and the playable game experience.113 Consequently, institutions can preserve playable games long after the original hardware ceases to function or becomes unavailable.114 LAMs use emulators when transitioning game data from outdated technology to more enduring formats, but also to preserve outdated software environments necessary for accessing other items in its collections.115 Importantly for LAMs, emulation is the "easiest and most cost-effective way to reissue games," which is crucial given LAMs often have limited budgets.116 As a result, some scholars argue emulators are not just the most viable option for preservation, but rather that they are the only sustainable option for long-term preservation.117 Emulators' preservation value is highlighted in several ways: (1) access to classic games;118 (2) preservation of games from defunct companies;119 and (3) enhancing game functionality.120

Despite its importance in digital preservation, emulation faces many legal challenges. The legal landscape around emulation is nuanced, but courts have held emulators are noninfringing under copyright's fair use doctrine.121 The primary issue stems from the legal status of the underlying content preservationists use to create emulated environments.122 While emulation software itself is explicitly allowed under the DMCA through the reverse engineering provision,123 methods of obtaining and using game files to create an emulated game environment can raise additional DMCA issues if it involves unauthorized copying or distribution of copyrighted content.124 The video game industry argues emulators facilitate piracy, and video game publishers increasingly utilize DMCA takedown notices to prevent access to commercial emulators.125 Part III.B further discusses the DMCAs implication on emulation.

III. Overview of U.S. Copyright Law

The legal challenges LAMs face surrounding video game preservation and using emulation as a preservation tool begin with copyright and fair use protections. This Part first provides a foundation of U.S. copyright law and situates video games within the broader legal framework as copyright-protected works. Next, this Part discusses the principles of fair use, the doctrine's applicability to emulators, and limitations on invoking fair use under the DMCA.

A. Legal Background and Video Games as Copyright-Protected Works

As the legal challenges for video game preservation are inherently rooted in copyright protections and fair use questions, this subpart provides background into U.S. copyright law and video games as copyright-protected works. Title 17 of the U.S. Code, based on the Copyright Act of 1976,126 establishes the bedrock principles of American copyright law, safeguarding "original works of authorship fixed in any tangible medium of expression."127 This protection spans a wide spectrum of creations, from literary texts to audiovisual works.128

Video games-as complex multimedia digital and physical creations made up of various elements such as graphics, sound, text, and code129-have long been recognized as "original works of authorship"130 under U.S. copyright law.131 Each of these elements alone are eligible for copyright protection, but when combined, they create an interactive work that is protectable as a whole.132 Video games therefore are categorized similarly to other creative audiovisual works such as film, music, and books, granting copyright holders comprehensive copyright protections under the law.133

At its core, Title 17 seeks to balance creators' interests in protecting their original works with the public's interest in accessing and using these works.134 This legal framework grants authors exclusive rights to their creations, while also establishing exceptions and limitations to these rights to facilitate certain beneficial societal uses.135 The public includes "current and future generations of creators, . . . scholars and students who need access to culture as part of their research and teaching; and the librarians, archivists, and curators who collect and preserve culture for current and future study."136

B. Limitations on Exclusive Rights: Fair Use

While there are several limitations on copyright holders' exclusive rights,137 the doctrine of fair use138 is a critical exception to copyright law's grant of exclusive rights.139 Fair use allows for use and distribution of copyrighted materials without the owner's permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.140 Fair use is purpose-driven, and determining whether a particular use qualifies involves a case-by-case analysis guided by four factors.141

"The 'right of fair use' ... is grounded in the First Amendment," and has long enabled LAMs engaged in preservation work to copy and distribute copyrighted works without permission-provided these actions contribute to a positive purpose such as preserving, maintaining, and making accessible cultural artifacts for present and future study.142 Fair use is flexible, consistent, and predictable, and therefore holds great value for LAMs engaged in preservation.143

Emulation may fall under fair use protections in specific circumstances, particularly in the context of software preservation and academic research.144 In Sony Computer Entertainment, Inc. v. Connectix Corp.,145 the Ninth Circuit found Connectix's use of Sony's BIOS to create a new platform for PlayStation games was "modestly transformative" and thus favored fair use.146 Additionally, software preservation is largely protected by fair use.147 However, while fair use principles provide protection for preservation and emulation generally, the DMCA introduces specific limitations that affect how these principles apply, which can make it difficult for LAMs using emulation as a preservation tool to assert their right to fair use.148

IV. Understanding the DMCA

The DMCA emerged at the cusp of the digital age, at a time when the internet and digital technologies reshaped content creation, distribution, and consumption.149 Prior to the DMCA's enactment in 1998, the ease of copying, modifying, and distributing digital works on a massive scale-often without authorization-proved challenging for copyright holders.150 Traditional copyright enforcement mechanisms seemed ill-equipped to address these novel challenges, prompting Congress's reevaluation of the legal framework.151

Congress enacted the DMCA in response to copyright holders concerns, providing three additional protections beyond the Copyright Act.152 First, the DMCA established protections for online service providers, known as "safe harbor provisions," which ensure providers are not held liable in certain scenarios where users commit copyright infringement.153 Central to this protection is the notice-and-take down system-a mechanism for copyright holders to notify service providers of infringing content, prompting removal.154 Second, the DMCA grants copyright owners' legal shields against users' circumvention of technical protective measures ("TPMs") to encourage digital dissemination of copyrighted works.155 Lastly, the DMCA criminalizes false representation and unauthorized alteration or removal of information, in an attempt to ensure accurate attribution in digital contexts.156 Collectively, these measures aim to "strike a balance," ensuring robust copyright protection in the digital realm while fostering innovation and growth in online platforms and services.157

A. Key Provisions of the DMCA for Software and Digital

Media

Section 1201 of the DMCA contains three protections for TPMs. First, it prohibits circumvention of TPMs employed by copyright owners to protect access to their work (also known as access controls or DRM).158 Second, the statute prohibits trafficking in devices or services designed to circumvent access controls.159 Third, it prohibits trafficking services or devices designed to circumvent TPMs that protect copyrights and the owner of such copyrights (also known as copy controls).160 Circumventing TPMs is often required for video game preservation and creating emulated video game environments, thereby implicating the DMCA.161

B. The DMCA and Video Game Preservation

The DMCA's anti-circumvention provisions prohibit bypassing TPMs that protect copyrighted content.162 Video games-especially modern ones-often employ TPMs to prevent unauthorized copying or modification and protect against piracy.163 While the DMCA does provide certain permanent exceptions, including some for archival purposes,164 the broad sweep of its anticircumvention rules create challenges for LAMs preserving video games for historical, scholarly, or research purposes.165 Additionally, the DMCA also may implicate emulation-although making copies of legally owned game files does not violate the DMCA-distributing copied game files to others, including through online emulators, does violate the DMCA.166 Thus, any comprehensive analysis of video game preservation must grapple with the constraints and nuances the DMCA introduces.

C. Exemptions to the DMCA's Anticircumvention Prohibition

While the DMCA broadly protects copyright holders from unsavory anticircumvention practices, its scope is somewhat limited. Recognizing some "legitimate activities" and circumstances may require TPM circumvention, Congress provided exceptions (a.k.a. exemptions) to the DMCA's general rule against circumvention, attempting to balance copyright holders' protections against piracy167 with the public's interest in carrying out such legitimate activities.168

There are two kinds of exemptions under the DMCA: (1) permanent exemptions169 and (2) temporary exemptions.170 The permanent exemptions are narrowly prescribed, covering only a specific set of circumstances.171 Although one permanent exception specifically protects nonprofit libraries, archives, and educational institutions, the specific circumstances are too narrow to protect LAMs interested in preserving video games.172 Therefore, preservationists rely on Section 1201(a)(B)-(D), which authorizes the Librarian of Congress ("Librarian") to reevaluate and adopt temporary exemptions to Section 120l's anticircumvention prohibitions every three years.173

D. Overview of the Triennial Rulemaking Process

Since 2000, pursuant to Section 1201, the Librarian reassesses temporary exemptions every three years via a public rulemaking process.174 The purpose of this rulemaking process-which takes a little over a year to complete-is to grant exemptions for users of "particular classes" of copyrighted works who are, or are likely to, experience adverse effects from Section 1201's anticircumvention prohibition.175

Each triennial cycle kicks off with an official Notice of Proposed Rulemaking from the U.S. Copyright Office ("Copyright Office" or the "Office").176 Once the Office issues the Notice, the rulemaking process consists of the following phases: (1) the petition phase; (2) the public comments phase (three rounds); and (3) the public hearings phase.177 Once complete, the Register of Copyright ("Register") consults with the National Telecommunications and Information Administration ("NTIA"), and then reviews the public proceedings before presenting her recommendation to the Librarian.178 The Librarian reviews the Register's recommendation before issuing exemptions.179

During the petition phase, parties seeking a new exemption ("petitioners") submit the basic elements of their proposed new exemption.180 Once submitted, the public comment phase begins, and parties express their support or opposition for the proposed exemptions ("proponents or opponents").181 The public comments phase is split into three rounds.182 In the first round, supporters put forward legal and evidentiary submissions, and neutral parties share pertinent information about a specific proposal.183 Crucially, proponents bear the burden of establishing the exemption requirements have been satisfied, and therefore are encouraged to present their entire case in this round.184

The second round is dedicated to parties opposing a proposed exemption, ("opponents") and opponents may submit documentary evidence to support their argument.185 In the third round, proponents are limited to addressing the evidence and arguments raised by opponents in the second round.186 After all the phases are complete, the Librarian reviews the Register's recommendation and issues any exemptions as a Final Rule in the Federal Register.187

1. Requirements for Granting an Exemption

A proponent of new or expanded DMCA exemption must show the following four requirements during the rulemaking process described above to receive an exemption.188

First, the exemption must relate to work protected by copyright.189 Therefore, proponents must not propose exemptions for uncopyrightable works such as facts, ideas, works only in the public domain, and the like.190

Second, the uses of the works must be "noninfringing," as defined in the Copyright Act and relevant court decisions.191 Thus, proponents must demonstrate the specific use(s) the proposed exemption would protect is noninfringing under current copyright law.192 The Register evaluates whether the use is likely noninfringing.193 The Office also provides proponents with a non-exhaustive list of noninfringing uses, including fair use,194 reproductions by libraries and archives,195 or reproduction for people with disabilities.196

Third, users must demonstrate they are currently experiencing, or will experience, adverse effects in their ability to make noninfringing uses.197 Proponents must provide evidence that shows distinct, verifiable, and measurable impacts beyond mere inconvenience.198

Fourth, and finally, the TPM must be the cause of the adverse effects.199 These demonstrated adverse effects must be directly attributable to the TPM, rather than indirectly through other factors like market trends or general technological developments.200 In assessing such adverse effects, the Office conducts a balancing test for each proposed exemption, weighing the five statutory factors set forth in Section 1201.201 No single factor is determinative, and often some factors do not apply at all.202

2. 2024 Rulemaking Proceedings

At the time of writing this Note, the Copyright Office has initiated the Ninth Triennial Rulemaking proceeding.203 The Office continued using the streamlined procedure for renewing exemptions granted in the last rulemaking cycle.204 Written petitions to renew previously granted exemptions were due July 7, 2023.205

The Office initiated a notice of proposed rulemaking on October 19, 2023.206 After evaluating petitions, the Office announced seven classes of allegedly affected works.207 Relevant to this Note is Class 6(a), representing computer programs, except video games, for preservation,208 and Class 6(b), representing video games, as computer programs, for preservation.209 At the time of writing, the Ninth Triennial Rulemaking is in the public comments phase, and the first round of comments "seeking legal and evidentiary submissions from parties proposing new or expanded exemptions" concluded on December 22, 2023.210 Responses opposing new or expanded exemptions were due February 20, 2024, and reply comments were due March 19, 2024.211

V. The DMCA Preservation Dilemma

Video game users have been seeking temporary DMCA exemptions for video games since the very first triennial rulemaking cycle.212 Evaluating current213 and previously granted exemptions for video game preservation is critical in understanding LAMs' progress in petitioning for more tailored DMCA exemptions that account for the evolving digital landscape, and for understanding the practical challenges of institutional video game preservation under the current legal framework.

A. Temporary DMCA Exemptions for Video Games

This subpart examines the temporary exemptions currently in place for video game preservation under the most recent triennial rulemaking proceeding. It also analyzes previous exemptions for video games in prior proceedings. This subpart critically examines these exemptions, highlighting their legal nuances and implications for the future of video game preservation and accessibility.

1. Current Temporary Exemptions for Video Games

At the time of writing this Note, current exemptions for video game preservation were enacted on October 28, 2021, during the Eighth Triennial Rulemaking Cycle.214 The first DMCA exemption for video game preservation covers video games no longer supported by external servers.215 This provision is a direct response to the prevalence of "orphaned works" (a.k.a. abandonware).216 The DMCA allows individuals and LAMs to circumvent TPMs in cases where the copyright owner has ceased to provide necessary server access.217 This exemption is noteworthy as it enables LAMs to preserve games in their playable forms-solely for personal, local gameplay on PCs or consoles, under strict conditions of non-commercial advantage and non-distribution outside its premises.218

The second exemption applies exclusively to eligible LAMs, solely for the purpose of preserving out-of-market video games that do not require access to an external computer server in its "playable form."219 Like the first exemption, this includes a strict set of conditions-LAMs must not receive any commercial advantage from preservation efforts, and preserved games may not be distributed outside the physical premises of the eligible institution.220

The third exemption also applies exclusively to eligible institutions seeking to preserve video games. However, this exemption allows LAMs to circumvent TPMs so it can operate video game consoles, solely for the purpose of preservation.221

The fourth and final exemption provides for TPM circumvention in video games-in the form of computer games- for the purpose of accommodating a person with a physical disability to use alternate software or input methods, provided the circumvented game is operated exclusively on a personal computer.222

2. Unequal Treatment for Legacy Software

The Eighth Triennial Rulemaking process marked a significant shift in the way DMCA temporary exemptions treat out-of-date computer software ("legacy software").223 Historically, the DMCA also prevented LAMs from providing remote access to preserved legacy software, restricting access to the physical premises of the institution.224 This requirement was ostensibly designed to control access and prevent unauthorized distribution.225 However, the Eighth Triennial Rulemaking proceeding split computer programs into two sub-classes, separating legacy software from video games, and further removing the on-premises requirement for legacy software- provided LAMs implement "reasonable digital security measures"-a change which had profound implications for accessibility of these preserved works.226

LAMs have long utilized emulators as a means of accessing digital collections that require legacy software.227 Emulators- which ironically were initially developed to access and play out-of-market video games on modern hardware228-now enable access to a wide range of software, illustrating the blurred lines between video games and other digital software preservation.229 Emulators can host environments for a diverse array of software without distinction, from classic video games like Super Mario 64 to productivity tools such as Word Perfect 2003.230 At first, emulations' biggest challenge was scalability and complexity.231 However, new developments in the technology make emulation a cost-friendly and scalable option for LAMs preserving digital objects and software.232

Continuing to impose the onsite requirement for video games, in light of this technological reality, appears increasingly incongruent. The argument for removing the on-premises requirement for video games is compelling, as institutions have demonstrated capacity to meaningfully regulate users' remote access to emulated legacy software.233 This undermines the rationale for maintaining a more restrictive approach for video games, especially since distinguishing legacy software from video games can be practically challenging.234

Moreover, the flexibility emulation technology offers presents a lower-risk option for institutions engaged in video game preservation.235 Unlike other digital preservation methods,236 in the event of a DMCA takedown notice, LAMs need not dismantle the entire emulated environment-a costly and potentially culturally damaging proposition-but can instead simply remove access to the specific video game environment in question.237

However, the Entertainment Software Association ("ESA") often emphasizes the commercial viability of old video games as compared to other legacy software, as an argument against removing the on-premises requirement for preserving video games under the DMCA.238 The ESA contends the substantial market demand for legacy games is evidence that remote access to preserved games would cause a risk of market harm, as games that are no longer commercially available could always be reintroduced into the market.239

Nonetheless, this perspective may overlook the broader cultural and educational value of preserving digital media, as well as the larger goals of copyright law.240 LAMs aim not only to collect preserved works, but also facilitate public access to digital heritage, suggesting the balance between copyright protection and public access requires careful reconsideration.

The challenge lies in developing exemptions that recognize the intrinsic value of all digital artifacts, without overemphasizing the potential for commercial viability.241

B. Review of Past Exemption Proceedings

Examining previously proposed DMCA exemption proceedings provides important historical insight for future proponents seeking to expand exemptions for video game preservation. This subpart delves into exemptions proposed in the past for video game preservation, synthesizing the arguments for and against these exemptions, and critically analyzes the Register's recommendations.

In 2021, during the Eighth Triennial Rulemaking proceeding, proponents argued for removing the "on-premises" limitation for LAMs preserving video games.242 Proponents contended removing the on-premises requirement was essential for the preservation and accessibility of digital history and culture embedded in video games.243 They emphasized the existing on-premises limitation significantly hinders researchers' and educators' ability to access preserved games, especially in light of the increasing demand for remote access facilitated by technological advancements and underscored by the COVID-19 pandemic.244 Supporters posited the proposed exemptions aligned with the fair use doctrine and other statutory provisions favoring noninfringing uses for teaching, scholarship, and research.245 They also highlighted these exemptions would not adversely affect the market for commercial video game reissues, thus maintaining a balance between copyright protection and public interest.246 Finally, the proponents of the modification argued the statutory factors favored granting the remote exemption.247

Opponents, including industry stakeholders such as the ESA, contended the proposed exemptions were unnecessarily broad and could facilitate unauthorized access for purposes beyond preservation, such as entertainment.248 They argued the current framework adequately supports preservation efforts without compromising copyright owners' rights or market interests.249 The ESA also raised concerns that the proposed exemption lacked mechanisms to ensure circumvention of TPMs would be strictly limited to noncommercial, educational, or research purposes.250 They feared the proposed exemptions could lead to widespread distribution and access to copyrighted video games, thereby harming the copyright owners' potential revenue streams and undermining copyright protections.251

The Register's analysis acknowledged LAMs' evolving needs and the communities they serve.252 It also agreed technological advancements and changing circumstances, such as the COVID-19 pandemic, highlighted the limitations of the on-premises requirement.253 It further acknowledged this requirement potentially hindered researchers' and educators' access to important cultural and historical resources encapsulated in preserved video games.254

The Register also contemplated the ESA's concerns, particularly the potential for piracy and market harm.255 In balancing these considerations, the Register paid particular care to ensure any broadened exemption would not harm the copyright owners' exclusive rights more than necessary to achieve the goal of preservation and access for research and teaching.256

Given the competing interests at stake, the Register recommended a cautious approach to modifying the on-premises requirement.257 It recommended granting an expanded exemption for legacy software but recommended against granting remote access for preserved video games.258 The Register stated it "appreciated that [LAMs] may have [a] legitimate interest in making commercially unavailable video games available offsite ... in appropriate circumstances," however, it noted concern that the exemption "as proposed, does not contain appropriately tailored [access] restrictions."259 Although an initial win for the opposition, this decision leaves the door open to future exemptions allowing remote access, provided such an exemption contained sufficient access restrictions.260 Notably, the NTIA supported removing the on-premises requirement for both legacy software and video games, signaling continuing viability for a future remote access exemption.261

C. Challenges for Institutions Preserving Video Games Under

Current Exemptions

LAMs preserving video games face many practical challenges under the DMCA. The broadest issue is that the exemptions allowing for such preservation activities are temporary.262 This creates uncertainty and inconsistency for institutions doing this work, even with the streamlined process for previously granted exemptions.263 Looking at the history of the temporary exemptions for video game preservation demonstrates their instability.264 Additionally, new or expanded petitions for video game preservation are consistently subject to strong opposition.265

As discussed in this subpart, the specific requirements in current exemptions do not fully accommodate the needs of institutions dedicated to preserving video games. Specifically, LAMs face four major challenges under the current DMCA exemptions: (1) the on-premises requirement; (2) limitation to single users; (3) difficulty in obtaining source code; and (4) the complete games requirement, each discussed below.

1. On-Premises Requirement

The on-premises requirement creates significant challenges for video game preservation as it limits access to preserved games to physical locations.266 This requirement creates logistical and financial obstacles for researchers, educators, and students who wish to study or utilize these video games for academic or research purposes.267 The SPN and Library Copyright Alliance highlighted several key issues that underscore the impracticality and inefficiency of the on-premises requirement.268

First, the on-premises requirement hinders the academic and educational use of preserved video games since it limits access to those who can physically travel to the institutions holding these collections.269 This creates a barrier to research and learning, particularly for those who do not have the financial resources or ability to travel.270 Video game scholarship, which is an interdisciplinary field, is significantly constrained under the current exemption framework.271

Scholars and educators are forced to structure their research and syllabi around the limited titles they can physically access, rather than focusing on the works most relevant to their studies.272 This limitation not only affects the depth and breadth of academic inquiry but also restricts the development of the field itself.273

Next, the requirement places undue pressure on the physical and staffing resources of the preserving institutions.274 Maintaining on-premises access requires significant space for the hardware necessary to play these games as well as staff time to supervise and facilitate access.275 Institutions like the Strong Museum of Play and Stanford University Libraries, which strive to support extensive research use of their collections, face challenges in accommodating large groups or classes, further highlighting the unsustainability of on-premises access for educational purposes.276

Additionally, the need to preserve the physical integrity of aging and delicate hardware, such as floppy disks and vintage gaming consoles, makes on-premises access less desirable.277 Digital access through emulation, a solution that could alleviate many of these issues, remains underutilized due to the restrictions imposed by the on-premises requirement.278

Furthermore, the on-premises requirement fails to acknowledge the global and distributed nature of contemporary scholarship.279 In an era where digital access to resources has become a standard expectation in academic research, requiring physical presence is anachronistic.280 It limits the potential for collaborative research and international scholarship, constraining the academic community's ability to fully engage with and study video game history and culture.281

Therefore, the on-premises requirement for accessing preserved video games represents a significant obstacle for educational and research institutions.282 It not only limits academic access and inquiry, but also places unnecessary strain on institutional resources.283 Removing or modifying this requirement would enable a more inclusive, efficient, and comprehensive approach to video game preservation, benefiting scholars, educators, students-and the broader public- interested in the cultural and historical significance of video games.284

2. Limitation to Single Users

The DMCA's temporary exemptions are also narrowly tailored so that LAMs can only provide access to preserved games to one user at a time. Therefore, while LAMs can preserve multiplayer games, they cannot allow researchers to access preserved multiplayer games in their playable state.285 Multiplayer games-which constitute a significant portion of modern gaming culture and history-involve interactions between multiple players in a shared environment, both on and offline.286 This limitation disregards the social and interactive aspects of gaming, which are crucial to understanding the evolution and impact of video games, and studying player interaction.287 Excluding online and multiplayer games from preservation exemptions under the DMCA results in a significant gap in the historical record of the gaming industry and its cultural significance.288

3. Difficulty in Obtaining Source Code

Another significant challenge LAMs face is the difficulty in obtaining source code from private game companies.289 Source code is essential for preservation because it allows for the future restoration and emulation of games, ensuring they remain playable as technology evolves.290 However, production companies, motivated by proprietary interests and intellectual property concerns, are often reluctant to release their source code to institutions for preservation.291 The DMCA does not provide a clear pathway for LAMs to access or use source code for preservation without potentially infringing on copyright, leading to a precarious legal situation that discourages industry cooperation with archival efforts.292

4. The Complete Games Requirements

The DMCA exemptions specify LAMs can only preserve "complete games," which could cause difficulty for preserving video games with additional DLC, or patches that update, fix, or modify games post-release.293 This definition fails to acknowledge the dynamic nature of modern video games, which are often designed to be expanded post-release.294 This evolving aspect of video games is essential to their nature and historical value, yet the DMCA's narrow view on what constitutes a complete game limits the scope of preservation and creates potential confusion for LAMs.295

VI. Proposed Solutions

The Supreme Court recognized "[fjrom its beginning, the law of copyright has developed in response to significant changes in technology."296 Even before enacting the Copyright Act of 1909,297 the Court understood "any protection given to copyright holders is wholly statutory[,] and copyright infringement remedies are only those prescribed by Congress."298 Consequently, Congress should reevaluate whether the DMCA sufficiently balances copyright holders' interests with society's interest in video game preservation.299

A. Broaden DMCA Exemptions for Video Games in Future

Cycles

The preservation challenges LAMs face under the DMCA underscores a significant gap within the statute's current framework. Despite incremental progress in previous exemption cycles, persistent constraints highlight an urgent need to create exemptions specifically tailored for video game preservation. This necessity is not only fundamental to advancing academic research and public knowledge, but also aligns with the DMCA's goal of balancing copyright protections with public access and facilitating fair use.

A broader exemption that (1) removes the on-premises requirement, (2) allows multiple players, and (3) modifies the meaning of "complete games" to contemplate additional content (such as DLC) would better facilitate LAMs' ability to preserve video games.300

SPN's recent public comment vividly illustrates the pressing need for expanded exemptions.301 LAMs are tasked with preserving video games as crucial artifacts of modern culture, yet they are stymied by legal barriers that restrict access to materials essential for research. The limited scope of current exemptions forces researchers and educators to navigate a precarious legal landscape and creates impractical and exclusionary restrictions on the ability to study, teach, and preserve video games.302

Concerns over potential market harm historically influenced the narrow tailoring of DMCA exemptions.303 However, empirical evidence presented by these cultural and academic bodies demonstrates broadening exemptions for video game preservation is unlikely to result in significant market harm.304 The majority of video games are out of commercial circulation, with many titles no longer accessible or playable on modern hardware.305 Additionally, the academic use of such games is inherently noncommercial and transformative, aiming to analyze, learn, and iterate rather than to entertain or replace the original market purpose of these games.306

SPN's proposed framework for an expanded exemption incorporates safeguards that mitigate potential market impacts, effectively addressing the Register's concerns from the Eighth Triennial Rulemaking.307 Implementing access controls, user vetting processes, and purpose-limited use (e.g., for research, teaching, or scholarship), would allow LAMs to ensure preserved games are used in a manner that respects copyright holders' interests while fulfilling the public benefit of cultural preservation and academic inquiry.

Moreover, providing researchers remote access to preserved video games arguably does not threaten the commercial market to the extent the Register anticipated in 2021.308 The existence of pirated copies of games has not deterred consumers from purchasing commercial remasters and reissues, as evidenced by the continued profitability and success of these games.309 These reissues provide consumers with a new or enhanced experience that outdated emulated versions cannot, and do not, compete with.310 The audience for commercial remasters typically includes both new players and nostalgic older gamers seeking an enhanced experience of their favorite games on contemporary hardware.311 Thus, the preservation of video games, especially through emulation, serves more as a cultural and historical archive than a competitor to the commercial video game reissue market.

Byexpanding these exemptions, the Copyright Office would not only address the immediate needs of cultural heritage institutions, but also affirm its commitment to copyright law's fundamental goals: promoting innovation, protecting public access to cultural artifacts, and supporting educational endeavors that benefit society.312

The arguments presented by SPN and other stakeholders make a persuasive case for broadening DMCA exemptions to include remote access of preserved video games for both single and multiple users. The proposed expanded exemption would address critical preservation challenges LAMs face, promote academic research and education, and ensure the longevity of video games as essential cultural artifacts.313

B. Amending the DMCA

Given the unique nature of video games as complex digital objects and the impracticality, uncertainty, and resource expenditure required to reevaluate temporary exemptions every three years, amending the DMCA to include permanent exemptions for cultural institutions seeking to preserve video games and legacy software using emulation would be a critical step forward. Such an amendment would alleviate current burdens while ensuring preserved software and games are used solely for research purposes.

Video games differ significantly from other forms of media due to their interactive, dynamic nature, and reliance on specific hardware and software environments.314 Consequently, LAMs must go beyond physical preservation to ensure games remain playable, which often requires emulating obsolete systems and TPM circumvention.315 This complexity emphasizes the need for permanent exemptions tailored to the unique challenges of video game preservation.

Additionally, the current DMCA triennial review process places a significant burden on institutions.316 LAMs must repeatedly justify the need for exemptions-a process that consumes considerable time and resources. This recurring requirement hampers long-term preservation strategies and creates an environment of uncertainty around the legal status of preservation activities.317 Establishing permanent exemptions for video game preservation would provide much needed stability and consistency, allowing institutions to plan and execute preservation efforts without the looming deadline of exemption expiration.318

Of course, amending the DMCA to establish permanent exemptions for LAMs seeking to preserve video games and legacy software should involve clear guidelines. These guidelines would, at a minimum, limit access to preserved games and software for research purposes, thereby addressing concerns regarding potential misuse. While some may argue permanent exemptions could undermine copyright holders' rights, the specificity of such exemptions-limited to noncommercial, research-oriented use for qualifying institutions-significantly minimizes this risk.319 Moreover, LAMs already enforce access controls for other valuable materials, demonstrating their capability to manage such exemptions responsibly.320

Incorporating permanent exemptions into the DMCA for both video game and software preservation acknowledges the unique challenges associated with these digital objects and eliminates the impractical cycle of triennial reevaluation.321 By establishing clear guidelines for access and use, this permanent exemption would ensure preservation activities do not harm the market while also contributing to academic research and cultural heritage.322 Other legislative fixes should also be considered, but exceed the scope of this Note.323

Conclusion

The intricate dance between the DMCA's protective provisions and the imperative of video game preservation underscores a modern legal challenge in the digital era. The DMCA, while foundational in safeguarding copyrights in a modern world, inadvertently casts shadows over cultural heritage institutions' efforts to preserve video games for study and research. The pressing need for expanded exemptions is evident, not merely as a legal necessity, but as a cultural responsibility to protect video gaming's legacy. To navigate this complex terrain, a collaborative approach is paramount. The legal community, the video game industry, and preservationists must converge, pooling their expertise and insights. Together, they can craft a new legal framework that respects copyright integrity while ensuring video gaming's rich history remains accessible and celebrated for future generations.

Footnote

* J.D. Candidate, Class of 2025, Washington and Lee University School of Law; B.A., University of Texas at Austin, Class of 2019. I am deeply grateful to Professor Allison Wexler Weiss for her invaluable guidance as my Note Advisor, and for her thoughtful feedback and mentorship which extends far beyond this Note. Thank you to the Washington and Lee Law Review Editorial Board for their hard work in getting this note to publication, particularly Martin Flores, Annelise Burgess, Trinity Chhay, and Jack Kellerman. Special thanks to my Executive Editor, Teressa Calhoun, for helping me develop this topic. This Note benefitted immensely from conversations with Phil Salvador, Andrew Borman, Kendra Albert, and Paula Kiser, who shared their firsthand experiences with video game and digital preservation and helped ground this academic work in practical reality. Finally, I would like to thank my family and my fiance, Parker Michel, whose love and support made this work possible-this Note stands as one small testament to their endless love and faith in me.

1. Kelsey Lewin, 87% Missing: The Disappearance of Classic Video Games, Video Game Hist. Found. (July 10, 2023), https://perma.cc/2RNZ-RNKB.

2. The terms "video game," "digital game," and "computer game," are often used interchangeably, although each term may have slightly different meanings depending on the context. Laurie N. Taylor & Zach Whalen, Preface to Playing the Past: History and Nostalgia in Video Games vh-viii (Zach Walen & Laurie N. Taylor eds., 2008). This Note uses the term "video game" which refers broadly to " [interactive software used for entertainment, role playing, and simulation," which users play on a personal computer, mobile device, or "specialized gaming console" (i.e., a PlayStation or Xbox). Encyclopedia: Video Game, PC Mag., https://perma.cc/W6QC-Z6X5 (last visited Jan. 24, 2025).

3. See Phil Salvador, Video Game Hist. Found. & Software Pres. Network, Survey of the Video Game Reissue Market in the United States 1-2 (2023) [hereinafter VIDEO GAME REISSUE MARKET SURVEY], https://perma.cc/AA2S-B5Q6 (PDF) (finding only 13% of all games released pre-2010-4.5% of Commodore 64 games, 5.87% of Game Boy family games, and 12% of PlayStation 2 games-are still commercially available, even though the PlayStation 2 is still part of a "commercially active ecosystem").

4. See infra Part LB for further discussion on the commercial reissue market.

5. See Video Game Reissue Market Survey, supra note 3, at 1-2 (determining the commercial market does not preempt the need for institutional preservation efforts, as the video game industry is unlikely to re-release games with "low commercial value," and increasing dependence on impermanent digital game distribution creates additional risk of loss for reissued games).

6. See id. at 39 (defining "historic" video games as "gamefs] originally produced for a platform or operating system that is no longer in production or being supported" and limiting the survey to games released before 2010).

7. See id. at 34 (highlighting the commercial market collectively only re-released one-fifth of all historical video games, leaving researchers with extremely limited legal or cost-prohibitive options).

8. See id. at 3 (noting the substantial gap between the commercial marketplace's interests and researchers' needs, and that cultural heritage institutions can help close that gap).

9. See Paola Antonelli & Paul Galloway, When Video Games Came to the Museum, Museum of Mod. Art (Nov. 3, 2023), https://perma.cc/2MRP-XF7L (discussing MoMA's goal of building an exhibit showcasing a selection of carefully curated video games which demonstrate specific design traits such as behavior, aesthetics, space and time through their visual quality, elegant code, and impact on players behavior).

10. See id. (explaining MoMA's selection criteria and announcing MoMA is adding additional video games to their collection, including Space Invaders (Taito et al. 1978), Asteroids (Atari et al. 1979), andMinecraft (Mojang Studios et al. 2011)). See also infra Part II.C for further discussion of emulation and its role in video game preservation.

11. For a comprehensive list of other institutions with video game preservation initiatives and related conference talks, see Game Preservation Initiatives, U. Mich., https://perma.cc/TQ22-NAMN (last updated Jan. 22, 2025). Notably, other LAMs preserving video games take a variety of approaches when it comes to video game preservation. Compare ESL Digital Worlds: Level Up, The Strong Museum of Play, https://perma.cc/2MN3-B9SH (last visited Jan. 25, 2025) (describing one of the Strong Museum of Play's video game exhibits, where museum attendees can play different video games organized into five "zones" based on the action of the game), with Videogame Videos, The Internet Archive, https://perma.cc/945T-A7BS (last visited Jan. 25, 2025) (providing a collection of "rare and difficult to source video files relating to video games," including collections of recorded "speed runs" where individuals try to complete a video game in the shortest amount of time possible). Additionally, preservation efforts may go beyond the game itself to include preservation of affiliated objects such as development materials, raw art, or video game promotional media. Projects, VIDEO GAME HlST. FOUND., https://perma.cc/AYK3-9SLJ (last visited Jan. 25, 2025).

12. See Biranna Dym et al., The Internet Is Not Forever: Challenges and Sustainability in Video Game Archiving and Preservation, 1 J. Elec. Gaming & ESPORTS 1, 3 (2023) (describing technical challenges such as reverse engineering game code or issues arising from degradation of ROM cartridges); see also Video Game Reissue Market Survey, supra note 3, at 7-13 (explaining game availability obstacles include technical, licensing and ownership challenges). For further discussion of the practical challenges of video game preservation, see infra Parts II.B-C on using emulation as a preservation tool.

13. Kendra Albert et al., Software Pres. Network & Libr. Copyright All., Long Comment Regarding a Proposed Exemption Under 17 U.S.C. § 1201, at 4 (2023) [hereinafter 2023 INITIAL PUBLIC COMMENT], https://perma.cc/7929-EVGG (PDF).

14. See supra note 12 and accompanying text.

15. Emulators provide access to classic games that are no longer in production or are hard to find. What Is a Video Game Emulator"? Complete

Guide, Veloce Network, https://perma.cc/XU47-VM3Y (last visited Jan. 25, 2025). This is particularly important for games from old consoles that are not available on modern systems. Noelle Warner, Pirating Metroid Aside, Emulators Play an Important Role in Games Preservation, DESTRUCTOID (Oct. 19, 2021), https://perma.cc/KHU2-T8UL. See also infra Part II.C for further discussion.

16. 2023 Initial Public Comment, supra note 13, at 5. See also infra Part II.C.

17. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended at 17 U.S.C. § 1201). The DMCA prevents the circumvention of technical protection measures, and such circumvention is commonly required for video games. See infra Part IV; see also KENDRA Albert et al., Long Comment Regarding a Proposed Exemption Under 17 U.S.C. § 1201, at 5 (2017) [hereinafter 2017 INITIAL PUBLIC COMMENT], https://perma.cc/HM89-PZ4E (PDF) (explaining circumvention of technical protection measures-such as product keys, passwords, and time restrictions-is often required for accessing and preserving computer software, including video games).

18. See Patricia Aufderheide et. al., Ass'n Rsch. Lib., The Copyright Permissions Culture in Software Preservation and Its Implications for the Cultural Record 13 (2016), https://perma.cc/5BWB-ZWFH (PDF) (noting a common concern with software preservation is violating the DMCA).

19. See Video Game Reissue Market Survey, supra note 3, at 14 n.69 ("The language in this exemption prohibits [LAMs] from providing remote access to video games in their collections if that would require circumventing digital rights management protections, which are widely and commonly used by the game industry."). Limitations of DMCA temporary exemptions are further discussed infra Part V.C.I-4. For an update of the current status of temporary exemptions at the time of publication (2025) see infra notes 211, 213-214, 309 and accompanying text.

20. See 2023 Initial Public Comment, supra note 13, at 5 (comparing rare video games to "traditional special collections" of books and manuscripts, as they are "one-of-a-kind" pieces of history and sometimes accessible only at one institution worldwide). However, unlike traditional collections which are digitally accessible, rare video games are inaccessible to anyone who cannot travel to the LAM housing the preserved game. Id.

21. See AUFDERHEIDE ET. AL., supra note 18, at 2 (noting one of the most persistent challenges to software preservation is legal uncertainty, and that " [a]lmost every step in a typical preservation workflow is potentially regulated by copyright").

22. See supra note 19 and accompanying text.

23. See infra Part III.B (discussing limitations on fair use).

24. The author wrote this Note prior to the completion of the Ninth Triennial Rulemaking Cycle in 2023-2024. At the time of publication (2025), the cycle is complete. See infra notes 211, 213-214, 309 and accompanying text.

25. See Video Game Reissue Market Survey, supra note 3, at 4 (noting the video game industry has grown to $180 billion, with $90.2 billion in the United States alone, surpassing both the film and American sports industries); see also Video Games-Worldwide, Statista, https://perma.cc/7CPJ-7PWW (last updated Nov. 2023) (projecting the video game market to reach a revenue of $522.50 billion in 2025). For clarity, "video game market" refers to the entire industry including a wide range of products-such as gaming consoles, PC games, and online games-as well as a variety of human roles, such as video game creation, development, and publishing. Id.

26. See Statista, ESports Worldwide 3-4 (2022), https://perma.cc/R8GZ-KVZE (PDF) (stating in 2022, "the global eSports market was valued at over 1.38 billion U.S. dollars" and forecasting e-sports revenue to grow to 1.87 billion by 2025).

27. See Univ. of Minn., Understanding Media and Culture: An Introduction to Mass Communication 507 (2016) (explaining the phenomena of "gamer culture" that develops around specific video games, and the permeation of video game characters like Pac-Man and Mario into other forms of entertainment such as cartoons or movies).

28. See id. (describing the recognition of video games as art).

29. See Stevens E. Jones, The Meaning of Video Games: Gaming and TEXTUAL STRATEGIES 1 (2008) (describing video games as "a pervasive and significant form of expression" that offer meaning and are worthy of study in their own right, beyond mere "sociological or economic or cultural evidence"). See generally Elliott M. Avedon & Brian Sutton-Smith, The Study of GAMES (1971) (cataloging academic research on video gaming's impact on a variety of fields such as recreation and sports, military training, education, psychology, psychotherapy, general medicine, economics, and other social sciences).

30. See Songyee Yoon, Gaming as a Lens into the Future, Forbes (Jan. 29, 2024), https://perma.cc/F5CU-V5Z7 (discussing the evolution of games from ancient board games like Senet in Egypt to modern video games).

31. See Avedon & Sutton-Smith, supra note 29, at 55-62 (describing the rise of game scholarship during the late nineteenth century, particularly by anthropologists and folklore specialists who largely attempted to dispel the notion game study was trivial, but rather that games were "an integral part of human culture").

32. See supra notes 9-10 and accompanying text. See also Univ. OF Minn., supra note 27 (providing examples of educational value of video games, such as Number or Word Munchers designed to help children improve math and grammar proficiency, studies showing first person shooter games improve visual-processing skills, and examples of the military using video games as training simulators); Anthony Jondreau, The Unique Storytelling Power of Video Games, Medium (Apr. 9, 2020), https://perma.cc/2D9A-ZDGD (describing the way video games provide a unique storytelling experience compared to other mediums, as the "innate interactivity of games" makes the plot "something the player experiences rather than consumes").

33. See JONES, supra note 29, at 1-3 (explaining video games are often "assumed to be at best mass-market commodities or mindless pastimes for children (of all ages), and at worst, training devices for misogyny, militarism, and violence").

34. See id. at 3 (noting sociologists, anthropologists, cultural studies scholars, and media specialists have for decades included video games among their objects of study); see also AVEDON & SUTTON-SMITH, supra note 29, at 11 ("Human life and human institutions can be better understood by-and indeed cannot be thoroughly understood at all without-a study of the life of . . . peoples including even their pastimes, the games they played, the sports they engaged in . . . .").

35. Legacy servers refer to older generation servers that continue to be functional but have since fallen behind in the race for technological innovation. Tim Davidson, What Is a Legacy Server?, CleanCommit (June 13, 2023), https://perma.cc/26DR-YPS6. These servers can exist outside the scope of video games-for example, some businesses may depend on a legacy server for software that is incompatible with a modern server. Id. For the purpose of this Note, legacy servers-also known as fan servers-refer to private servers restoring online virtual worlds for games that have gone offline or have discontinued content. See Anthony McGlynn, How Fan Servers Are Preserving Dead Multiplayer Games, UPPERCUT (2020), https://perma.cc/N6ZP-XKQ3 (discussing various fan-run legacy servers).

36. The term "cult-classic" refers to games that were not commercially successful but developed a dedicated fan base over time. See Edmond Tran, Game Review: Psychonauts 2 Flaunts a Wonderfully Bizarre World, Screen HUB (Aug. 23, 2021), https://perma.cc/6L9X-SPN8 (discussing the re-release of the game Psychonauts, which originally released in 2005 to poor commercial performance, but eventually received a sequel almost two decades later thanks to the cult following it attracted over the years).

37. See supra note 35 and accompanying text.

38. See supra note 35 and accompanying text.

39. For instance, the revival of World of Warcraft: Classic by Blizzard Entertainment showcases the demand for legacy game experiences directly from the original publishers. Matthew Handrahan, Blizzard Embraces Its Legacy with World of Warcraft: Classic, Gamer Network Ltd. (Nov. 6, 2017), https://perma.cc/B9K5-CY6M. See also Kyle Orland, Activision Shuts Down Popular Fan Servers for Legacy Call of Duty Games, Ars Technica, https://perma.cc/GQU6-8SEM (May 23, 2023) (noting game company Activision sent a cease-and-desist letter to legacy Call of Duty servers that aimed to improve gameplay and prevent hacking threats on official servers).

40. See Tran, supra note 36.

41. See id. Some examples of such games include Psychonauts and System Shock-games that received remasters years after their release due to persistence-and funding-from their dedicated fan bases. Id.

42. These commercial remasters often offer players visual and quality-of-life improvements but typically do not alter the story or game play significantly. Remasters, Remakes and Reboots Stay Hot Among Video Gamers, NlELSON (Aug. 2021), https://perma.cc/98EA-QQWN. These remasters are big money makers for the industry-from 2018 to 2020, revenue for top remakes nearly doubled. Id.

43. In 2023, 90 percent of Metacritic's highest-rated games were remasters and remakes, with notable titles like Dead Space, Resident Evil 4, and Metroid Prime Remastered. George Foster, Remasters and Remakes Make Up 90 Percent of 2023s Highest-Rated Games, TheGamer (Mar. 19, 2023), https://perma.cc/RQX6-N8HV.

44. See supra note 5-8 and accompanying text.

45. See MAME, EMULATOR Zone, https://perma.cc/8S8R-H6H7 (last visited Jan. 25, 2025) (explaining "the intent of this emulator is preservation; the ability to play games is considered a 'side-effect'"); see also Star Wars Galaxies Emulator, SWGEMU, https://perma.cc/A9L8-EUER (last visited Feb. 18, 2024) (home page for Star Wars Galaxies emulator).

46. A notable example is Club Penguin Rewritten-this grassroots project launched in 2017, after the popular game Club Penguin shut down its servers that same year. Since Club Penguin was no longer playable, independent programmers recreated and maintained the online MMO for several years, and by March 2020, Club Penguin Rewritten saw around 30,000 new players joining every day during the pandemic. Rebecca Alter, The Day the Ruffles Cried: Disney Shuts Down Club Penguin Rewritten, VULTURE (Apr. 13, 2022) https://perma.cc/79NX-U2VT. However, in May 2020, Disney-which owns the rights to the original Club Penguin-issued a DMCA takedown notice, and the server, with over eight million users was taken offline. Id.

47. See Video Game Reissue Market Survey, supra note 3, at 34 (explaining researchers interested in accessing "historical titles ignored by the commercial industry are left with few options," including acquiring games from the cost-prohibitive second-hand market, traveling to LAMs for extended periods of time, or "resortfing] to piracy").

48. See James Newman, Illegal Deposit: Game Preservation and/as Software Piracy, 19 CONVERGENCE 45, 57-58 (2012) (making a case for a more nuanced approach to the definition of software piracy that recognizes the important creative and preservative roles individuals play in transferring video game software from one medium to another).

49. See 1940s: Video Game History Timeline, The Strong Museum of PLAY, https://perma.cc/N8HM-9ABK (last visited Jan. 25, 2025) (noting the general public began "exploring the possibility that machines might not only think-but also play" only recently in 1940, when Edward U. Condon designed a computer that played the traditional game Nim, beating tens of thousands of players in at least 90 percent of games).

50. In 1952, Professor A.S. Douglas created OXO, a digital tic-tac-toe game for his dissertation at the University of Cambridge, and in 1958, William Higinbotham created Tennis for Two for an analog computer. See infra note 51 and accompanying text. In 1962, Steve Russell invented Spacewar!-a multiplayer combat space game for a cutting-edge computer called the PDP-1. Amanda Onion et al., Video Game History, HlSTORY.COM (Sept. 1, 2017), https://perma.cc/Y5Z5-Z3DM (last updated Oct. 17, 2022).

51. See Ernie Tretkoff, This Month in Physics History, October 1958: Physicist Invents First Video Game, Am. Physical Soc'y (Sept. 22, 2008), https://perma.cc/QR8F-EYW2 (noting Higinbotham created a tennis game called Tennis for Two to "liven up the [lab] to have a game that people could play" and still "convey the message that our scientific endeavors have relevance for society").

52. See The Strong Museum of Play, supra note 49 (noting in 1962, the U.S. Department of Defense created STAGE (Simulation of Total Atomic Global Exchange), a "computer war game" showing "the United States would defeat the Soviet Union in a thermonuclear war").

53. Lucy Bennett, The Evolution of Gaming Technology: From Pixels to Paradigms, iLounge (Jan. 9, 2024), https://perma.cc/UT4K-LVER; see also Onion et al., supra note 50 (discussing the popularity of Pong, the first arcade video game, released in 1972).

54. Bennett, supra note 53. Games introduced during this time "set[] the stage for storytelling and gameplay that would define future generations." Id.

55. Onion et al., supra note 50.

56. See Racketboy et al., Games that Defined the Atari 2600, RACKETBOY (Sept. 15, 2021), https://perma.cc/H6UU-RQWL (explaining the Atari 2600 naturally transitioned arcade classics onto their home console and listing the noteworthy games available on the console); see also Darren James, Ultimate Guide: 30 Iconic Nintendo NES Games You Can't Miss, Retrosales.COM.au (Jan. 3, 2024), https://perma.cc/6EU7-5RHA (listing historical titles that "define the Nintendo NES legacy").

57. See UNIV. OF MINN., supra note 27, at 491 (explaining the decline of arcades and the shift toward home consoles and personal computers); see also Onion et al., supra note 50 (describing Atari's Pong release for their home console in 1975, which was "as successful as its arcade counterpart").

58. See UNIV. OF MINN., supra note 27, at 491 (describing the demographic shift toward personal computer gaming especially for multiplayer role-playing games like Habitat for the Commodore 64).

59. Bennett, supra note 53. Additional notable titles and releases include Mortal Kombat (Midway et al. 1992), which led to hearings in the U.S. Senate on video game violence, Sony's PlayStation (1995) which led to a line of mainstay consoles, and saw Microsoft enter the console and gaming market with their Xbox console and hit game Halo: Combat Evolved (Microsoft Game Studios 2001). See The Strong Museum of Play, supra note 49 (listing notable moments in video game history).

60. See Bennett, supra note 53 (explaining the "pivotal" integration of the internet with video games and how creation of virtual communities "transcending geographical barriers" led to a "social revolution within the gaming world").

61. See Univ. OF Minn., supra note 27, at 494 (discussing the introduction of the original Game Boy, which allowed users around twenty hours of play time on one set of batteries).

62. See id. at 496 (detailing Nintendo's success in the handheld market throughout the 2000s with the release of devices such as the Game Boy Advance in 2001 and the Nintendo DS in 2004, as well as the subsequent transition to mobile gaming). Mobile gaming is now a massive industry in its own right-in 2008 and 2009 alone, iPhone games generated $615 million in revenue. Id.; see also The Strong Museum of Play, supra note 49 (noting mobile games like Angry Birds (Chillingo & Rovio Entertainment 2009) and social media games like Farmville (Zynga 2009) created millions of new gamers).

63. See Univ. OF Minn., supra note 27, at 493 (describing how PC gaming became "mainstream" in the 1990s along with the development of the first-person shooter genre, with notable titles like Wolfenstein 3D (Apogee

Software & FormGen 1992) and Doom (id Software 1993), in addition to non-violent mystery and worldbuilding games like Myst (Broderbund et al. 1993) and SimCity (Maxis 1989)).

64. Id.

65. See The Strong Museum of Play, supra note 49 (noting that while The Sims (Electronic Arts 2000) was not the first simulation game released, it was massively successful especially with female players).

66. Throughout 2005 and 2006, the video game industry competed to release groundbreaking and innovative home consoles, such as Microsoft's Xbox 360 and Sony's PlayStation 3, which introduced impressive graphical capabilities and improved performance, as well as Nintendo's Wii which sported state-of-the-art motion controls, appealing to new markets of gamers. Onion et al., supra note 50; see also Univ. OF Minn., supra note 27, 2 at 491 (describing the move from 16-bit systems in the early 1990s to internet-enabled home consoles in 1999).

67. See The Strong Museum of Play, supra note 49 (noting Nintendo's Wii and Wii Fit (Nintendo 2007) appealed to millions of people who did not previously enjoy video games); see also Scott D. Anthony, Nintendo Wiis Growing Market of "Nonconsumers", Harv. Bus. Rev. (Apr. 30, 2008), https://perma.cc/6475-YV87 (highlighting Nintendo's strategy of targeting older and younger individuals by making Wii games simpler and more accessible); Trevor Edwards, Gamer Grandma Has Spent Nearly 5,000 Days Playing Wii Fit, GameRant (Jun. 9, 2011), https://perma.cc/87QK-FGTW (discussing George Perkins "viral" tweet showing off his grandmother's 3,949 consecutive days of Wii Fit playtime). Notably, other grandparents have made a name for themselves in the video game world, including a player who goes by the gamertag "TacticalGramma" who gained popularity on TikTok for her skill at Call of Duty: Warzone (Activision 2020). Id. According to her twitch channel, TacticalGramma has been playing video games since the release of Pong. Arron KLuz, TikTok Grandma Goes Viral for Call of Duty: Warzone Kills, GameRant (Apr. 14, 2021), https://perma.cc/K69N-XLLR.

68. See The Strong Museum of Play, supra note 49 (explaining Microsoft console releases, such as the Xbox 360 in 2005, focused largely on "high-definition realism" and improved multiplayer functionality, and Valve "energize[d] PC gaming" with its release of Steam-a digital distribution platform that allows players "to download, play, and update games").

69. See Yoon, supra note 30 (discussing the need for technological advancements in gaming resulted in better GPU and networking technologies); see also The Strong Museum of Play, supra note 49 (highlighting modern games like The Last of Us (Sony Computer Entertainment 2013) and Gone Home (The Fullbright Co. 2013), which create difficult emotional choices for players, ushering in "a new wave of mature video game stories").

70. See The Evolution of Video Game Graphics, Playcent Games (June 4, 2022), https://perma.cc/C7AP-MRJK (describing the unimaginable pace of improvement for modern video game graphics). For example, side-by-side images comparing God of War (Sony Interactive Entertainment 2018) and its sequel, God of War Ragnarok (Sony Interactive Entertainment 2022), show graphical improvements over a short period of time even though both are playable on the same console. Gloria Levine, God of War Ragnarok & God of War 2018 Graphics Compared, Solv (Nov. 7, 2022), https://perma.cc/Q2RH-CYSK. Comparing graphics across the entire God of War franchise is even more staggering. See You Mashub, God of War Franchise \ Comparison 1440P, YouTube (Aug. 24, 2022), https://perma.cc/RH8M-TU3Y (comparing the graphics of the entire God of War franchise).

71. See Mike Snider, Xbox and PlayStation: How Sony and Microsoft Changed the Way We Play Video Games, USA Today (Nov. 16, 2020), https://perma.cc/6L23-U6WV (detailing how Microsoft and Sony led technical advances in console gaming).

72. See Scott Rogers, What Nintendo Can Tell Us About Game Design, N.Y. FILM Acad. (Aug. 10, 2018), https://perma.cc/BH4W-AJEQ (explaining Nintendo's design philosophy is to "go for an emotional experience, teach as you play, and repeat what works"); see also Keza MacDonald, Pushing Buttons: Nintendo's Shigeru Miyamoto, The Guardian (Nov. 23, 2022), https://perma.cc/QF68-C8M2 (describing Nintendo's approach to game design as understanding how technology and ideas work together to create fun).

73. See Jules Herd, The Global Surge of Independent Games Development Studios, FORBES (Aug. 21, 2023), https://perma.cc/9JUB-87AR (describing the increasing sale of digital games from independent game studios); see also Istvan Harkai, Preservation of Video Games and Their Role as Cultural Heritage, 17 J. Intell. Prop. Rts. 844, 846 (2022) (explaining digital sales has overtaken physical sales-and when physical copies are sold-they typically sell part of the game so the user must undertake some installation requiring "an internet connection and a user account linked to a digital store to download the rest of the game").

74. See Herd, supra note 73 (highlighting the "remarkable surge in independent game studios in recent years" and exploring the key factors behind their success); see also THE STRONG MUSEUM OF PLAY, supra note 49 (stating the indie game movement came "of age" with the release of the incredibly popular Minecraft in 2010). A prime example of indie gaming's success is Stardew Valley (ConcernedApe 2016), an indie game developed by a one-man team over four years-including creating all the games music, art, programming and design-which sold over one million copies two months after its release. Stardew Valley, ConcernedApe, https://perma.cc/4AXL-ST28 (last visited Jan. 27, 2025).

75. The global online gaming market generated around $26.14 billion in 2023 and grew around 9.8% since 2022. J. Clement, Online Gaming - Statistics & Facts, STATISTA (Aug. 23, 2023), https://perma.cc/G4DF-RLXL. There are currently an estimated 1.1 billion online gamers worldwide, with China, South Korea, and Japan claiming the largest online gaming markets. Id.

76. See id. (stating online gaming evolved over the last decade from "classic" online games such as MMOs and competitive first-person shooters to also include free-to-play ("F2P") multiplayer online battle arena ("MOBA") games like Dota 2 (Valve 2013) and League of Legends (Riot Games 2009), as well as more recent new online genres like the battle royale genre). Battle royale is currently the most popular online gaming format, with notable titles such as Fortnite (Epic Games 2017) and Apex Legends (Entertainment Arts 2019) generating tens of millions of players within months of release, and Call of Duty: Warzone gaining 25 million players within five days of release. Id.

77. See supra note 75 and accompanying text.

78. MMOs cover a wide range of game genres but are generally defined as "any online video game in which a player interacts with a large number of other players." MMO, DlCTIONARY.COM, https://perma.cc/L7KA-7NDN (last visited Jan. 27, 2025). MMOs are further categorized by their genre-for example, League of Legends is a popular MMO Battle Arena game ("MMOBA"), Counter-Strike (Sierra Studios 2000) and Halo are popular MMO First Person Shooter games ("MMOFPS"), and Second Life (Linden Lab 2003) is an example of a MMO Social Game ("MMOSG"). Samir Saurav Majhi, 16 Different Types of Massively Multiplayer (MMO) Online Games, Dragon Blogger Tech. & Ent. (May 23, 2011), https://perma.cc/4TJ7-GVU7. Notwithstanding the wide variety of MMOs, these games have gained popularity due to the meaningful connections they create with people around the world. Id.

79. See Harvey Randall, We'll Never Get Another Big Blockbuster MMO While the Industry's Still Drooling over Live Service Games, PC Gamer (Dec. 12, 2023), https://perma.cc/QGS7-SNLX (detailing challenges for MMOs and the shift toward life service models); see also Live Service Games Explained, UMATECHNOLOGY (Jan. 10, 2025), https://perma.cc/ZY78-Q9AG (defining live service games); Slava Zaiets, Why AAA Studios Shift to Games-as-a-Service (GaaS) Model, Gridly (Dec. 10, 2024), https://perma.cc/3JZT-LCYR (explaining the pros and cons of live service models for gaming studios).

80. See supra note 79 and accompanying text.

81. Harkai, supra note 73, at 846.

82. Christopher Haydock, Challenges in Preserving Video Games 19 (Apr. 2018) (M.S. Paper, University of North Carolina), https://perma.cc/C36C-WF6T (PDF).

83. See Video Game Reissue Market Survey, supra note 3, at 7 (explaining the lack of compatibility between platforms makes reissuing older games for newer technology challenging and costly).

84. See Haydock, supra note 82 and accompanying text.

85. Video Game Reissue Market Survey, supra note 3, at 7.

86. Id. This does not even account for the fact that the same game may vary widely in content between platform releases. Virtual Interview with Phil Salvador, Library Director, Video Game Hist. Found. (Feb. 14, 2024) (on file with author).

87. See Harkai, supra note 73, at 845 (discussing the video game industry's "throw-away culture" due to the rapid rate of new titles and follow-up games to sequels, rendering games obsolete over the course of a few years).

88. See id. (discussing playability challenges due to media damage); see also Adrian Maldonado, Almost ARCHAEOLOGY (Apr. 3, 2014), https://perma.cc/D3HD-ERQK (reviewing James Newman, Best Before: Videogames, Suppression and Obsolescence (1st ed. 2012)) (noting video games are "unstable objects" that are "continually ported to different consoles, modulated with downloadable add-ons, and emulated in future game systems").

89. See Harkai, supra note 73, at 845-56 (explaining the challenges of preserving a game's technical and audiovisual assets-such as the art, source code, or physical elements of the game-in addition to preserving the game in its "playable state").

90. See Suzanne Keene, Preserving Digital Materials: Confronting Tomorrows Problems Today, 26 CONSERVATOR 93, 95 (2001) (explaining unlike other physical objects, passively storing physical objects containing digital material is insufficient in the long-term because the comparatively short life spans of software and hardware makes them quickly inaccessible); see also Brief in Support of Respondents at 5, Allen v. Cooper, 589 U.S. 248 (2020) (No. 18-877), https://perma.cc/T53T-EVQD (PDF) (discussing the need for U.S. collecting institutions to digitize media "within the next twenty years, before the materials become unusable").

91. See Diann Robson et al., Video Game Equipment Loss and Durability in a Circulating Academic Collection, 18 Evidence Based Libr. & Info. Prac. 53, 55 (2023) (evaluating the durability and loss of video game consoles, controllers, and peripherals in academic video game collections over the last twelve years). Interestingly, some video games release with unique components, such as Nintendo's bongos which were used to play Donkey Kong Jungle Beat (Nintendo 2004)-a rhythm-based game where players drummed on either the left or right bongo along with the game's music. Joe Rice-Jones, The Most Bizarre Video Game Controllers of all Time, Slash Gear (Dec. 22, 2022), https://perma.cc/DD9W-SLEN. Many of these components are integral to the game's experience and can be very difficult to acquire-such as the Dance Dance Revolution (Konami 1998) pad-creating an additional challenge for interested players, even if they have a physical copy of an older game, and a working legacy console that runs the game. See u/Kevin_Gamer573, Comprehensive Pad Buying Guide for 2020, REDDIT (July 14, 2020), https://perma.cc/6ALS-KB6Z (providing a guide of how to purchase a dance pad).

92. See Heather Alexandra, Why Some Video Games Are in Danger of Disappearing Forever, Kotaku (Dec. 12, 2017), https://perma.cc/5NVB-7KBL (explaining the race against time when it comes to physical preservation of video games and noting that "even recent media is degrading [including] DVDs and CDs from the mid-nineties").

93. See id. (noting even when games are copied, "lost source data or imperfect copies" cause trouble for archivists trying to preserve the original game).

94. See Harkai, supra note 73, at 850 (explaining multiplayer games requiring an internet connection may become unavailable if the publisher-operated server storing player data is taken offline). Virtual worlds that are built around millions of players, such as Second Life which had 64.7 million active users in 2021, risk becoming "ghost towns" if user content and interaction is lost. Id. at 846.

95. See Video Game Reissue Market Survey, supra note 3, at 12-13 (stating used video game prices rose 33% from 2020 to 2021). For example, used copies of Little Samson (Taito 1992) for the NES-which sold for ninety-nine cents in 1997-sold at an average price of $2,750, as of April 2023, on the second-hand market. Id.

96. See Maldonado, supra note 88 and accompanying text.

97. See Garrett Fredley, Game Preservation Best Practices: A Real Life EA Case Study, YouTube (Nov. 5, 2019), https://perma.cc/44G8-67E5 (discussing the preservation challenges of keeping up with DLC releases, game patches, and special event content); see also supra note 94 and accompanying text.

98. See supra note 94 and accompanying text; see also Haydock, supra note 82, at 20 (explaining the difficulty of preserving games that run on online networks, as "one must preserve all the servers and systems" the game interacts with to ensure the game is playable).

99. Andrew Borman from the Strong Museum of Play provided the following analogy:

Trying to preserve a video game is like trying to preserve a game of baseball-you could record the game, or save the baseballs, bats, and team jerseys, but you can't save all the intangibles-like, you couldn't get every person in the stands back in the same place or ensure the weather is exactly the same as it was the day of the game. Virtual Interview with Andrew Borman, Digital Curator, Strong Museum of Play (Feb. 9, 2024) (on file with author).

100. See Video Game Reissue Market Survey, supra note 3, at 2, 12, 29 (explaining even if games are commercially reissued, "the long-term instability of digital game distribution platforms means they often lapse out of release"). For example, legacy digital stores like the PlayStation 3 and PlayStation Vita virtual stores, experienced issues with degradation in service quality to the extent that "users are effectively unable to purchase titles that are technically still in commerce." Id.

101. See supra note 100 and accompanying text.

102. Source code is the "fundamental component" of a software program, created by programmers, and often written "in the form of functions, descriptions, definitions, calls, methods, and other operational statements." Scott Wallask, What Is Source Code?, TechTarget, https://perma.cc/4RCR-JU6T (last updated Jan. 2023).

103. See Alexandra, supra note 92 and accompanying text; see also Kyle Orland, Saving Video Gaming's Source Code Treasures Before It's Too Late, AES TECHNICA (Jan. 5, 2021), https://perma.cc/PTX4-UNEN (estimating for games made before 2000, around 90 percent of the source code is missing for "the games we care about").

104. Harkai, supra note 73, at 849.

105. See id. (calling source code and associated documentation "the key object of long-term preservation"); see also Frank Cifaldi, Introducing the Video Game Source Project, Video Game Hist. Found. (Oct. 15, 2020), https://perma.cc/67ZW-GSKS (explaining the lack of preserved source code, even though "video game source code and other source materials are inarguably the best resources for those studying how a game was made").

106. See Alexandra, supra note 92 and accompanying text. Losing source code and other assets can provide challenging even for commercial reissues- for example, when Blizzard re-released the popular real-time strategy game, StarCraft: Remastered (Blizzard Entertainment 2017), the company could not find the art assets, so artists working on the re-release had to "eyeball" the art style of the original game using videos of gameplay on YouTube and screenshots on Google. Id. According to the Video Game History Foundation, three major factors have contributed to this loss: (1) trade secret, (2) entropy, and (3) lack of awareness. Cifaldi, supra note 105.

107. Simply put, "[ejmulation gives users the ability to use a software version of a hardware product on another device." Zachary Jensen, The DMCA, Emulation, and ROM Sites, RIT Cyber Sec. Policy & Law Class Blog (Sept. 13, 2021), https://perma.cc/VEX3-SMDC.

108. See supra note 15 and accompanying text. Emulators can also preserve games from companies that have long ceased operations or vanished following market crashes. Id.

109. "Environments" are emulated computing systems that use "content" to provide access to preserved objects as they would have been rendered in their original context. Glossary, EaaSI, https://perma.cc/WLB8-H9LA (last visited Jan. 27, 2025). Content is essentially a collection of the digital files making up the item preserved in the emulated environment. Id.

110. See Newman, supra note 48, at 48 (explaining an emulator can run video game code while also replicating various peripheral devices such as joysticks or controllers on a modern device).

111. Id.

112. Matthew Lynch, Video Game Emulators: What You Need to Know, The Tech Edvocate (June 4, 2023), https://perma.cc/853T-GM43.

113. See Newman, supra note 48, at 48-49 (noting emulator uses for both individuals and LAMs).

114. Id.

115. For examples of LAMs using emulators to provide access to other materials in its collection, see Trevor Owens, Emulation as a Service (EaaS) at Yale University Library, Lib. of Cong. (Aug. 20, 2014), https://perma.cc/GXG9-CCU9 (describing three emulation use cases). The institution used emulation where: (1) a PhD student needed to access interactive artwork on a CD-ROM in Yale's general collections, but could only use the CD-ROM on a classic Mac operating system; (2) a Judaica librarian was unable to access data stored on a Windows XP CD-ROM as it would not run on Windows 7; and (3) a finance PhD student needed to access data "trapped within software" designed for Windows 98. Id. For a more in-depth discussion of innovative emulation programs and how they work, see Recommendations from the EaaSI Team for Creating Environments, EaaSI, https://perma.cc/BK9D-9ULQ (last visited Jan. 27, 2025) (explaining how to use EaaSI to create environments).

116. Video Game Reissue Market Survey, supra note 3, at 7.

117. Newman, supra note 48, at 48. Frank Cifaldi explained the need for emulation with the following example:

[Imagine] if movies were only released on, like, VHS, ever. You want to watch Back to the Future? All right, you have to go on eBay ... to find a VCR that works, a TV that it plugs into-or the external scalers that make it look correct on your modern TV-and you might need a time-base corrector because the magnetic flux signal is out of sync.

David Pierce, The Fight to Save Old Video Games, Verge (Nov. 13, 2023),

https://perma.cc/NRG9-29KA.

118. See supra note 15 and accompanying text.

119. See supra notes 15, 106-108 and accompanying text.

120. Emulators can also enhance functionality of the original game, such as adding localizations through ROM patches or new features like save states. See James Conley et al., Use of a Game Over: Emulation and the Video Game Industry, a White Paper, 2 Nw. J. Tech. & Intell. Prop, at 1, 5, n.24 (2004) ("ROM is Read Only Memory, and a ROM Patch is a small section of code that is added to a program to facilitate some desired functionality.").

121. See generally Sony Computer Ent., Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000) (finding emulation development and release is noninfringing and emulation technology itself is fair use of computer software). See infra Part III.B for an in-depth discussion of fair use.

122. See FAQs: (How) Is this Legal?, EaaSI, https://perma.cc/VD8D-8FW6 (last visited Jan. 27, 2025) (explaining EaaSI comports with fair use under U.S. copyright law, and that EaaSI relies on the 2018 DMCA exemption for legacy software preservation when circumvention of TPMs may prevent EaaSI from exercising fair use). See also infra Part V.A.2 regarding the distinction between legacy software and video games.

123. 17 U.S.C. § 1201(f) ("Reverse engineering.").

124. See supra note 107 (explaining "making copies of legally owned game files to play on emulators without distributing them to others" is legal under the DMCA, however, "hosting games (both online emulators and downloads) on a website is illegal"). See also infra Part IV.B further discussing DMCA implications for emulation.

125. See Newman, supra note 48, at 48 (noting "just like other forms of copying that have preceded it . . . -acquisition or use of ROMs is unambiguously coded by the videogame industry as an act of software piracy"). Recently, Steam "indefinitely delayed" the release of Dolphin (Activision 1983)-a popular open-source emulator that runs both GameCube and Wii titles-after Nintendo issued a takedown notice, claiming Dolphin "violates Nintendo's intellectual property rights" under the DMCA. Igor Bonifacic, Dolphin Emulator Steam Release Delayed Indefinitely Following Nintendo DMCA Notice, Engadget (May 27, 2023), https://perma.cc/G8FL-LDWK.

126. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. §§ 101-810).

127. 17 U.S.C. § 102(a); see also ShiraPerlmutter, U.S. Copyright Off., Preface to Circular 92, Copyright Law of the United States (Title 17) and Related Laws Contained in Title 17 of the United States Code vii (2022), https://perma.cc/45XZ-S3PT (PDF) (noting The Copyright Act of 1976 "provides the basic framework for the current copyright law").

128. § 102(a)(l)-(8).

129. Video games present a complexity beyond many other kinds of digital items and therefore can present additional copyright concerns in addition to technical hurdles. See Haydock, supra note 82, at 4 (noting unlike other digital items such as text documents or photographs, video games have complex features such as formatting, sound and video, and visual and graphical aspects that must be accounted for in addition to their "core content").

130. § 102(a) (protecting original works of authorship).

131. See, e.g., Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 856-57 (2d Cir. 1982) (determining a coin-operated video game called Scramble (Konami 1981) was copyrightable not only as to the underlying computer program, but also as an original audiovisual display).

132. Id.

133. In Stern Electronics, Inc. v. Kaufman, one of the pioneering cases in this domain, the Second Circuit acknowledged video games as copyrightable audiovisual work. Id. This was further solidified in Midway Manufacturing, v. Artie International, Inc., when the Seventh Circuit held unauthorized copying of a game's display constituted infringement, and further specified "creative effort" on the part of the player did not prevent a video game from obtaining copyright protection. 704 F.2d 1009, 1011 (7th Cir. 1983).

134. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (explaining the "difficult balance" Congress seeks to maintain between the interests of scientists and creatives in controlling their works, and society's "compelling interest in the free flow of ideas, information, and commerce on the other hand"); see also AUFDERHEIDE & Peter Jaszi, Andrew W. Mellon Found., Code of Best Practices in Fair Use for the Visual Arts 14 (2015) (explaining U.S. copyright law protects both copyright owners and the public, and that "copying, quoting, recontextualizing, and reusing existing cultural material can be critically important to creating and spreading knowledge and culture" so the law strikes a balance between rightsholders control and public access"); JESSICA LlTMAN, DIGITAL COPYRIGHT 13 (2nd ed. 2006) (explaining copyright laws ensure "authors to have enough control over their works to enable them to extract some of the commercial value of those works," while still benefitting the public at large-which requires the work is accessible for public enjoyment).

135. 17 U.S.C. § 106 (listing the exclusive rights of copyright holders such as the rights to reproduce, distribute, perform, and display copyrighted works); id. §§ 107-122 (providing various limitations on the exclusive rights of copyright holders).

136. Code of Best Practices for Fair Use in Software Preservation, Software Pres. Network, https://perma.cc/YYT9-P8CB (last visited Apr. 26, 2025).

137. "The public interest limits on copyright begins with the fact that copyright lasts for a limited time." Id. In general, copyright protections last for the duration of the "life of the author, plus seventy years after the author's death"-after that works enter the public domain and are free for use by all. U.S. Copyright Off. & Lib. of Cong., Copyright Basics Circular 4 (1st ed. 2022), https://perma.cc/YHB4-KAPN (PDF). Other limitations include 17 U.S.C. §§ 108-122, with § 108 in particular, authorizing libraries and archives to reproduce and disseminate copyrighted works without permission from copyright holders under delineated conditions. § 108(a)(1)-(3). However, § 108 does not apply to video game preservation primarily because it was tailored to the analog age and has not been sufficiently updated to cover digital and multimedia works such as video games. Id. Additionally, § 108 explicitly excludes "audiovisual works" (other than news) which encompasses video games. Supra notes 131-133 and accompanying text.

138. § 107 (providing "fair use ... is not an infringement of copyright").

139. Since copyright protections can last for generations, "other limitations allow the use of works that are still protected by copyright. . . . [f]air use is the most flexible and widely applicable [Limitation]." Software Pres. Network, supra note 136.

140. § 107. (stating "fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by [§ 107], for the purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright"). "In litigation, fair use is invoked as an 'affirmative defense,' like other expressive liberties." SOFTWARE PRES. Network, supra note 136.

141. To determine whether a particular use case constitutes fair use, § 107 calls for a multi-factor balancing test which consists of the following four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion employed relative to the copyrighted work as a whole; and (4) the impact of the use on the potential market for or value of the copyrighted work. § 107.

142. See Software Pres. Network, supra note 136.

143. Fair use is described generally and depends on facts and circumstances, ensuring relevance over time. See SOFTWARE PRES. NETWORK, supra note 136. Additionally, court decisions have shown fair use outcomes can be forecasted with a reasonable degree of certainty, making it reliable for institutions to follow. Finally, once fair use is established for use in a particular context, "that same logic applies the next time you do it," making fair use a reliable tool for institutions. Id.

144. See supra notes 121-125 and accompanying text.

145. 203 F.3d 596 (9th Cir. 2000).

146. See id. at 606 (reasoning the creation of a new platform, which allowed users to play PlayStation games on Macintosh computers, served a different purpose from the original purpose of the PlayStation games, despite the potential for Sony to experience some economic loss due to competition).

147. See SOFTWARE Pres. Network, supra note 136. ("Because the [DMCA] is not part of the Copyright Act, it is not subject to copyright's ordinary flexibilities, including the fair use doctrine."). However, fair use is an important factor in the exemption granting process. See infra Part IV.D.l.

148. See supra note 122 and accompanying text.

149. See U.S. Copyright Off., Executive Summary to Section 1201 of Title 17: A Report of the Register of Copyrights i (2017) [hereinafter A Report of the Register of Copyrights], https://perma.cc/3SV7-V75U (PDF) (explaining Congress enacted the DMCA to provide greater legal protection for copyright owners in the emerging digital environment).

150. See id. (noting updates were "essential" to accommodate rapid technological change).

151. See id. at 1 ("Members of Congress have recognized that these latter protections, codified in section 1201 of title 17, United States Code, have been integral to discouraging piracy and infringement, facilitating innovation, and providing consumers with a wide range of content delivery options.").

152. Id.; see also The Digital Millennium Copyright Act, U.S. COPYRIGHT OFF., https://perma.cc/F8W6-K6HR (last visited Jan. 27, 2025) (explaining the DMCA amended U.S. copyright law "to address important parts of the relationship between copyright and the internet").

153. 17 U.S.C. §512.

154. Id. (enabling copyright owners to remove infringing online content without the need for litigation).

155. Id. § 1201(a)(1) ("[N]o person shall circumvent a technological measure that effectively controls access to a work protected under [title 17].").

156. Id. § 1202.

157. See U.S. Copyright Off., A Report of the Register of Copyrights, supra note 149, at 1 (explaining Congress sought to balance the interests of both copyright holders and users in the digital age).

158. 17 U.S.C. § 1201(a)(1); see also Kendra Albert et. al, Software Preservation Network, A Preservationist's Guide to the DMCA Exemption for Software Preservation 2 (2nd ed. 2022), https://perma.cc/V6Q5-9F3W (PDF) ("TPMs fall under two categories: access controls and copy controls. . . . Though only access controls are regulated by § 1201(a)(1)(A), some types of DRM protect against both accessing and copying a copyrighted work at once, which makes circumvention legally risky.").

159. § 1201(a)(1).

160. Id.

161. See supra notes 17 & 124 and accompanying text.

162. See supra note 158 and accompanying text.

163. See id. (explaining in plain language, the DMCA implements a "general legal rule against cracking digital locks on things like DVDs, software, and video games"); see also 2017 INITIAL PUBLIC COMMENT, supra note 17 and accompanying text.

164. See infra Part IV.C for further discussion on exemptions to the DMCA.

165. See ALBERT ET. AL, supra note 158, at 8 (explaining that unlike exemptions for other computer software, "access to video games preserved using the DMCA exemption must be limited to the physical premises of the institution").

166. See Jensen, supra note 107 and accompanying text; see also supra note 124 and accompanying text.

167. See Universal City Studios v. Corley, 273 F.3d 429, 435 (2d Cir. 2001) (listing piracy as Congress primary motivation for enacting the DMCA).

168. See U.S. Copyright Off., A Report of the Register of Copyrights, supra note 149, at i (noting Congress recognized in addition to piracy, there are legitimate, lawful purposes to circumventing TPMs).

169. Permanent exemptions to 17 U.S.C. § 1201(a)-(b) are codified within the text of the DMCA in § 1201(d)-©.

170. § 1201(a)(1)(B)-(D) (authorizing creation of temporary exemptions).

171. See U.S. Copyright Off., Section 1201 of Title 17: A Legal OVERVIEW 8 (2023), https://perma.cc/R2QN-93BP (PDF) (noting permanent exceptions apply only in a narrow set of circumstances).

172. § 1201(d)(1)-(2) (emphasizing the only purpose coveredby permanent exemptions for LAMs is to "make a good faith determination of whether to acquire a copy of [a] work").

173. § 1201(a)(1)(B)-(D) (authorizing the Librarian of Congress to adopt temporary exemptions to anti-circumvention prohibitions upon the recommendation of the Register of Congress in a rulemaking proceeding conducted every three years); see also EaaSI, supra note 122 and accompanying text.

174. See Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works, U.S. COPYRIGHT Off., https://perma.cc/56QC-33A9 (last visited Jan. 27, 2025) (noting important dates from the first triennial rulemaking in 2000).

175. 17 U.S.C. § 1201(a)(l)(B)-(D). The U.S. Copyright Office conducts the formal, public rulemaking and, after consulting with the Department of Commerce's NTIA, drafts a recommendation from the Register to provide to the Librarian of Congress. Id. The Librarian of Congress reviews the Register and NTIA's recommendations and subsequently adopts a final rule establishing the temporary exemptions, which apply for the following three-year period, until the Librarian announces the next final rule. Id.; see also U.S. COPYRIGHT Off., infra note 204 and accompanying text.

176. See Rulemaking Proceedings Under Section 1201 of Title 17, U.S. COPYRIGHT Off., https://perma.cc/NV2Y-KFPK (last visited Jan. 27, 2025) (providing materials and resources for Rulemaking Proceedings and a record of each official webpage for every current and past triannual rulemaking proceeding).

177. Tutorials: Rulemaking, Rulemaking Proceedings Under Section 1201 of Title 17, U.S. COPYRIGHT Off., https://perma.cc/MH96-KPDL (last visited Jan. 27, 2025).

178. Id.

179. Id.

180. Id. The Copyright Office asks parties include the following information in their petitions: (1) a statement detailing the new exemption- including the kind of copyrighted work requiring access, (2) the device or service used to access the works, (3) the purpose requiring access, and (4) the kinds of users who will likely require access. Id. Petitioners do not have to present their entire case at this stage; that is reserved for the public comment phase. Id.

181. Id.

182. Id.

183. Id.; see also infra Part IV.D.2 (discussing the requirements for new exemptions).

184. See supra note 177 and accompanying text.

185. Id.

186. Id. Following the last round of public comments, the Copyright Office holds nonmandatory public hearings. Id.

187. Id. Additionally, as of the Seventh Triennial Rulemaking, the Copyright Office implemented a "streamlined process" for renewing exemptions granted in the previous triennial cycle. Id.

188. See U.S. Copyright Office, Section 1201 Rulemaking: Eighth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 7-8 (2021) [hereinafter 2021 RECOMMENDATION], https://perma.cc/V6B3-XRUY (PDF) (stating proponents "bear the burden of establishing that the requirements for granting an exemption have been satisfied").

189. 17 U.S.C. § 1201(a)(1)(B).

190. See supra note 177 and accompanying text; see also Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1196 (2021) (explaining pursuant to Section 102(b), unlike patents, "copyrights protect expression but not the ideas that lie beneath it" (internal quotations omitted)).

191. See supra note 177 and accompanying text.

192. See supra note 177 and accompanying text.

193. See supra note 177 and accompanying text.

194. See supra note 177 and accompanying text; see also supra Part III.B on fair use.

195. See supra notes 135 & 177 and accompanying text.

196. See supra note 195 and accompanying text.

197. See supra note 195 and accompanying text.

198. See supra note 177 and accompanying text.

199. See supra note 177 and accompanying text.

200. See supra note 177 and accompanying text.

201. 17 U.S.C. § 1201(a)(1)(C); see also supra note 177 and accompanying text.

202. See supra note 177 and accompanying text.

203. Ninth Triennial Section 1201 Proceeding, 2024 Cycle, U.S. COPYRIGHT OFF., https://perma.cc/8B6G-NS4Z (last visited Jan. 27, 2025) [hereinafter Ninth Triennial Section 1201 Proceeding, 2024 Cycle].

204. Id.

205. Id. The SPN submitted a petition to renew the exemption for "games for which outside server support has been discontinued" and for discontinued video games that never required server support (abandonware). Petitions to Renew Prior Exemptions, U.S. COPYRIGHT Off., https://perma.cc/7TS2-N952 (last visited Jan. 27, 2025) [hereinafter Petitions to Renew Prior Exemptions]. No opposition was filed for this renewal petition, so this exemption likely continues through this next cycle into 2024. Id.

206. See supra note 203 and accompanying text.

207. See supra note 203 and accompanying text.

208. Referred to throughout this Note as "legacy software." See infra note 223 and accompanying text.

209. Petitions for Newly Proposed Exemptions, U.S. COPYRIGHT Off., https://perma.cc/7ELS-UKJZ (last visited Jan. 27, 2025).

210. See supra note 203 and accompanying text.

211. Id. At the time of publication (2025), the Ninth Triennial Rulemaking has now concluded, with the Final Rule published on October 28, 2024. See supra note 203. The Librarian renewed the "exemption for individual play by gamers and preservation of video games by a [LAM] for which outside server support has been discontinued, and preservation by a [LAM], of discontinued video games that never required server support. 89 Fed. Reg. 85437, 85442, 85449-50 (Oct. 28, 2024) (codified at 37 C.F.R. pt. 201). However, the Librarian denied the proposed amendments to remove: (1) the on-premises requirement; and (2) the single-user limitation. Id. at 85445. This decision was based on opponents' arguments and the Register's similar conclusion that removing such restrictions would "adversely affect the existing market for older video games." Id. at 85442. One small win from this cycle, however, is the additional clarification of the "one user at a time" language, "to reflect that preservation institutions can allow a copy of a computer program to be accessed by as many individuals as there are circumvented copies legally owned." Id. at 85445. Additionally, NTIA supported removing both the on-premises and single-user limitations. Id. While the arguments this past cycle were unsuccessful, the practical implications of the current exemptions, the success or failure of this year's (2023-24) arguments to broaden exemptions, as well as this Note's proposed solutions discussed infra Part VI remain relevant, since the temporary exemptions granted this cycle will be reevaluated in three years. Additionally, the outcome of this rulemaking will continue to inform future strategy from both proponents and opponents of expanding video game preservation DMCA exemptions.

212. See Exemptions to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64556 (Oct. 27, 2000) (to be codified at 37 C.F.R. pt. 201) (discussing a variety of proposed exemptions for video games during the First Triennial Rulemaking Cycle).

213. See 37 C.F.R. §201.40 (2021) (containing current temporary exemptions for video games). At the time of writing (2024), current temporary exemptions are active as of the Eighth Triennial Rulemaking Cycle, which concluded October of 2021. Id. New temporary exemptions will be active when the Librarian publishes the Final Rule from the Ninth Triennial Cycle in October 2024. See U.S. COPYRIGHT Off., Ninth Triennial Section 1201 Proceeding, 2024 Cycle, supra note 203 (providing links to current temporary exemptions and a repository of all previous and current Rulemaking webpages and Rules). However, at the time of publication (2025), the Ninth Triennial Rulemaking has concluded. See supra note 211 & infra note 214 for updates on the most recent temporary exemptions for video games.

214. 37 C.F.R. §201.40 (2021). As discussed supra note 211, the most current temporary exemptions remain largely the same as the Eighth Triennial Rulemaking Cycle, except for the clarifying language regarding the single-user restriction. See 37 C.F.R. § 201.40 (b)(19)(i)-(iv) (2024). However, the Librarian removed the on-premises limitation for legacy computer software (excluding video games) discussed infra Part V.A.2. See id. § 201.40 stating preservation is allowed for:

Computer programs, except video games, . . . solely for the purpose of lawful preservation of a computer program, ... by an eligible LAM. . . . Any electronic distribution . . . made outside of the physical premises of an eligible [LAM] of works preserved under this paragraph may be made to only one user at a time, for a limited time, and only where the [LAM] has no notice that the copy would be used for any purpose other than private study, scholarship, or research.

215. Id. §201.40(b)(17)(i).

216. See 2021 RECOMMENDATION, supra note 188, at 7 (citing SPN's petition to renew the exemption for abandonware because "libraries, archives, and museums continue to need the exemption to preserve and curate video games in playable form"); see also supra note 205 and accompanying text.

217. §201.40(b)(17)(i).

218. Id.

219. See id. § 201.40(b)(17)(ii) (allowing eligible LAMs to circumnavigate TPMs in out-of-market video games that do not require access to an external server, provided the preservation is "solely for the purpose of preservation of the game in a playable form by an eligible library, archives, or museum").

220. Id.

221. See id. § 201.40(b)(17)(iii) ("Computer programs used to operate video game consoles solely to the extent necessary for an eligible library, archives, or museum to engage in the preservation activities described in paragraph (b)(17)(i)(B) or (b)(17)(ii) of this section.").

222. Id. § 201.40(b)(21). Note this exemption was requested for renewal during the Ninth Triennial rulemaking cycle, however the petition was submitted after deadline, so although there was no opposition, it is unclear whether this will be renewed in 2024. U.S. COPYRIGHT Off., Petitions to Renew Prior Exemptions, supra note 205.

223. See id. § 201.40(b)(18)(i) (providing an exemption solely for LAMs preservation of lawfully acquired computer programs-except video games- provided the remote distribution of such preserved items are only accessible to one user at a time for the purpose of "private study, scholarship, or research").

224. See U.S. Copyright Office, Section 1201 Rulemaking: Seventh Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 254 (2018) [hereinafter 2018 RECOMMENDATION], https://perma.cc/H45Y-2HXK (PDF) (separating exemptions for video game computer programs and other legacy computer programs).

225. See 2021 RECOMMENDATION, supra note 188, at 276 (explaining user access restriction for electronic materials gives "additional assurance that [access] will be . . . for research and educational purposes").

226. See 37 C.F.R. § 201.40(b)(18)(i) (2021).

227. See supra Part II.C; see, e.g., Kathryn Pierce, Collaborative Efforts to Preserve Born-Digital Architectural Records: A Case Study Documenting Present-Day Practice, 43 Art Documentation 43, 46 (2011) (noting the Massachusetts Institute of Technology ("MIT") used emulated 3D CAD models for preservation purposes).

228. See Newman, supra note 48, at 58 n.l ("[M]any emulators are the product of gaming community effort . . . .").

229. See The History of Video Game Emulation, Digit. Radical (Apr. 14, 2023), https://perma.cc/X5UM-SFBU (discussing the history of emulation and video game emulators).

230. See Owens, supra note 115 (noting emulation "makes it trivially easy to set up custom environments for a variety of software programs"); see also Digital Preservation, U. Free State, https://perma.cc/38C6-UQ9H (last updated Aug. 16, 2024) (noting a benefit of emulation is the ability to replicate many different kinds of complex digital objects).

231. See U. FREE STATE, supra note 230 ("When used at scale, [emulators] can provide access to large parts of a collection.").

232. Id.

233. Interview with Paula Kiser, Assistant Professor & Digit. Scholarship Libr., Wash. & Lee Univ. (Feb. 8, 2024) (on file with author) (explaining methods for restricting user access to preserved online digital materials, such as log-in credentials and virtual private networks ("VPN")); see also Community-Driven Toolkit for the Development and Delivery of Virtual Reading Rooms (VRRs), Rsch. LlBR. U.K., https://perma.cc/3XCJ-QHPP (last visited Jan. 27, 2025) (creating a handbook for LAMs interested in establishing virtual reading rooms to "facilitate remote digital access to their collections" and explaining how virtual reading rooms experienced a surge of popularity worldwide in response to the COVID-19 pandemic).

234. "There really is no difference between software and video games." Borman, supra note 99. For example, Microsoft's Flight Simulator (2020), which allows users to virtually pilot an aircraft, is both a valuable tool for training pilots as well as a source of entertainment for other users. Interview with Phil Salvador, supra note 86. Users can run Flight Simulator on their home PCs and download it from the same digital platforms they get other video games from. Id.

235. See Claire Tristram, Data Extinction, MIT Tech. Rev. (Oct. 1, 2002), https://perma.cc/Q65Q-KJ6S (describing various methods of digital preservation and their associated pros and cons).

236. See Tristram, supra note 235 and accompanying text.

237. See supra note 233 and accompanying text.

238. The ESA consistently expressed concerns that removing the off-site requirements would be problematic as it would provide individuals with free access through LAMs, effectively disrupting the market for commercial video game remasters and remakes. See 2021 RECOMMENDATION, supra note 188, at 275 (discussing the ESA's arguments in opposition of remote access for preserved video games). Additionally, see supra notes 211, 213 & 214 and accompanying text regarding the most recent exemptions for video games and legacy software. Information regarding the Ninth Triennial Rulemaking Cycle can still be found at supra note 203.

239. See id. (noting the ESA's focus on the "substantial market demand for legacy games" and that "publisher-authorized emulators of legacy games are an important existing and potential market for video game copyright owners"). The ESA successfully argued this point again in the Ninth Triennial Rulemaking Cycle. See supra note 211 and accompanying text.

240. See supra notes 134-138 and accompanying text.

241. The ESA recently argued against limited remote access to preserved video games, stating "[t]hat many classic titles are not in current release at the moment does not mean those titles are 'lost,' . . . [i]t simply means that the copyright owner made a business decision not to put those titles on the market at that time," and "[determining whether, when, and how to commercialize their valuable copyrights is the prerogative of the copyright owner." ENT. Software Ass'n, Long Comment Regarding a Proposed Exemption Under 17 U.S.C. § 1201, at 7 (2023) [hereinafter 2023 INITIAL OPPOSITION COMMENT], https://perma.cc/8DDA-3W84 (PDF). This argument fails to address the limited purpose of the proposed exemption and overvalues potential commercial viability of unpreserved legacy games.

242. Proponents argued for the following modification to the exemption language for video game preservation: "where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is ftet distributed or made available outoido of the phyoioal promiooo of the-eligible-library,-arohivoo,-ee-museum for teaching, research, or scholarship." See 2021 RECOMMENDATION, supra note 188, at 261. Unfortunately, as of the time of publication (2025), the Librarian denied this proposed modification. See supra notes 211, 212-214 and accompanying text.

243. 2021 Recommendation, supra note 188, at 261-63.

244. Id.

245. 2017 Initial Public Comment, supra note 17, at 14-23.

246. Id.

247. Id. at 27-30 (arguing materials would not be available without the exemption-the exemption was "necessary and targeted" toward archival, education and preservation purposes, prohibiting circumvention impeded research, teaching, and scholarship, and finally, the exemption would have a limited market impact).

248. 2021 Recommendation, supra note 188, at 263-64.

249. Id.

250. Id. at 264-77.

251. Id.

252. Id.

253. Id.

254. Id. at 278.

255. Id. at 275.

256. Id. at 279-82.

257. Id. at 279.

258. Id. at 279-82.

259. Id. at 279.

260. LAMs have implemented meaningful access restrictions that ensure use of preserved works is limited to teaching, research, or study. See supra note 233 and accompanying text. As discussed supra notes 211, 213-214, the Register did not support removing either the on-premises nor the single-user restrictions. The Register in the Ninth Triennial Cycle was most concerned about the "healthy" market for reissued video games and found that once again, while proponents "suggested safeguards that could deter recreational uses of video games in some cases, she believes that such requirements are not specific enough to conclude they would prevent market harms." U.S. Copyright Office, Section 1201 Rulemaking: Ninth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 191 (2024) [hereinafter 2024 Recommendation], https://perma.cc/E5K4-UWT3 (PDF). Additionally, the Register noted that while proponents' arguments leaned heavily on emulation tools, "the technologies are not addressed in the exemption text." Id. This comment strongly supports the argument in Part II.C that emulation is a solution proponents should emphasize in following DMCA cycles.

261. 2021 Recommendation, supra note 188, at 278-79 (noting NTIA acknowledged the ESAs piracy concerns but felt the expanded exemption could adequately manage such risks if it adopted the eligibility requirements for LAMs found in the software preservation exemption, including the requirement that LAMs adopt "reasonable security requirements to protect the covered activities"). NTIA once again supported removing the on-premises and single-user requirement for video games in the Ninth Triennial Rulemaking Cycle. See supra note 211 and accompanying text; see also 2024 Recommendation, supra note 260 at 193 (noting that "NTIA agrees with proponents" that the on-premises and single-user limitations are detrimental to LAMs' preservation efforts and that removing these restrictions would not harm the market for video games reissues).

262. Will White, Note, Would You Like to Save Your Game?: Establishing a Legal Framework for Long-Term Digital Game Preservation, 81 Ohio St. L.J. 567, 584 (2020) (noting DMCA temporary exemptions allowing LAMs to circumvent TPMs are reevaluated every three years, and are consistently subject to pushback from the industry).

263. See id. (explaining that "prior to 2018, exemptions had to be reestablished de novo after each three-year period," but as of October 2018, the U.S. Copyright Office streamlined the proceedings to allow for the automatic renewal of exemptions "to which there is no meaningful opposition").

264. See id. (providing a brief overview of historical exemptions for LAM video game preservation-with the first exemption for LAMs introduced in 2006-which was then replaced with an exemption for "good-faith" testing, and then was later removed in 2012); see also Sarah Jeong, Why DMCA Rulemaking Is an Unsustainable Garbage Train, Vice (Nov. 3, 2015), https://perma.cc/AX8R-33HR (discussing the challenges of navigating DMCA exemptions, and noting full-time legal services are often required to successfully propose a new exemption-services that are usually provided by public interest groups such as law school clinics).

265. See White, supra note 262, at 585 (explaining that exemptions for LAMs for the purpose of video game preservation has been opposed by the ESA since 2018); see also supra notes 211 and accompanying text.

266. 2023 Initial Public Comment, supra note 13, at 14-16.

267. Id. at 5-8; see also Borman, supra note 99 (explaining research is a "two-way street" as LAMs also benefit from the specific skills of researchers, who may not be able to travel). For example, if the Strong Museum of Play needed a researcher's expertise regarding the NES system, the individual best suited to provide such advice is located in Ukraine and likely would not be able to travel to Rochester, New York in person. Id.

268. 2023 Initial Public Comment, supra note 13, at 5-8.

269. Id.

270. Id. at 14-19.

271. Id.

272. Id.

273. Id.; see also supra note 267 and accompanying text.

274. 2023 Initial Public Comment, supra note 13, at 19-20.

275. Id. at 7.

276. Id. at 1-8.

277. Id. at 10.

278. Id. at 7-10, 13.

279. Id. at 10; see also supra note 267 and accompanying text.

280. 2023 Initial Public Comment, supra note 13, at 10.

281. Id. at 7.

282. Id. at 14-20.

283. Id.

284. Id.

285. Virtual Interview with Kendra Albert, Lecturer on L., Harvard Cyberclinic, Software Pres. Network (Nov. 15, 2023) (explaining the DMCA does not provide exemptions for multiple players or online games).

286. See supra Part II.A.2, discussing the history of online and multiplayer games. Online interactions between players can be interesting and worthy of study, as exemplified by the message system in Dark Souls, which is a solo player game, but players can leave one another messages throughout the game, influencing each other's behavior. Interview with Phil Salvador, supra note 86.

287. See supra note 286 and accompanying text.

288. See Interview with Andrew Borman, supra note 99 (noting "we haven't even gotten to these games" since they would not be playable).

289. Companies protect source code because of trade secret concerns, creating DMCA challenges for emulation since "it is rare for companies to make server code available and the original server code is often lost as soon as a company takes the servers down," making the exemption "effectively useless in most cases." White, supra note 262, at 588.

290. See supra notes 104-106 and accompanying text.

291. See supra note 289 and accompanying text.

292. LAMs tend to have more success gaining source code directly from developers, and many LAMs share a goal of building trust with developers. See Interview with Andrew Borman, supra note 99.

293. See supra note 219 and accompanying text.

294. See supra notes 82-89 and accompanying text; see also Keton Hansrajh, The Expanded DMCA Exemption for Video Game Preservation Grants a Small Victory Amidst the Seventh Triennial Rulemaking, Elec. FRONTIER FOUND. (Nov. 26, 2018), https://perma.cc/7PHK-GRXT (last updated Dec. 4, 2018) (noting even when temporary DMCA exemptions allow LAMs to remove external verification servers, the exemption still excludes games that store any game content on an external server).

295. Interview with Phil Salvador, supra note 86. ("To be honest, we are still trying to preserve video games from thirty years ago, but the 'complete games' language will likely become difficult the more we try to preserve modern games.").

296. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 783 (1984) (noting the invention of the printing press originally gave rise to copyright protections, and Congress repeatedly amended or created copyright rules as necessitated by the rise of new technology).

297. Pub. L. No. 60-349, 35 Stat. 1075 (1909) (repealed 1976).

298. See H.R. Rep. No. 60-2222, at 7 (1909) (discussing Congress's need to consider: (1) "how much the legislation will stimulate the producer and so benefit the public" and (2) "how much will the monopoly granted be detrimental to the public?" when enacting legislation).

299. Id.

300. The SPN's proposed exemption in the ongoing Ninth Triennial cycle meaningfully addresses the first two points. See 2023 INITIAL PUBLIC Comment, supra note 13, at 2

Any electronic distribution, display, or performance made outside of the physical premises of an eligible library, archives, or museum of works preserved under this paragraph may be made only for a limited time and after the eligible institution acts to ensure that users seeking off-premises access to works are doing so primarily for the purposes of private study, scholarship, teaching, or research by: 1) specifically determining that the user's interest is private study, scholarship, teaching, or research, 2) instituting access restrictions appropriate to the nature of the use and the material, and 3) notifying users that they are receiving access to copyrighted material subject to adherence with applicable laws, (emphasis added). This exemption still uses the "complete game" language and does not provide for preservation of online games. Id. Nevertheless, it makes sense from a strategic standpoint, as it tackles the most pressing issues first.

301. See 2023 Initial Public Comment, supra note 13, at 5-8 (asserting adverse effects on non-infringing uses).

302. Id.

303. See supra Part V.B.

304. See 2023 Initial Public Comment, supra note 13, at 17-20 (discussing market impact of remote access).

305. Video Game Reissue Market Study, supra note 3, at 34.

306. See 2023 Initial Public Comment, supra note 13, at 8-14 (explaining limited remote access to preserved video games for research purposes is noninfringing and comports with fair use).

307. See supra Part V.B.

308. Id.

309. Id. Additionally, NTIA in its 2024 Recommendation Letter found that proponents sufficiently met their burden in demonstrating that removing the on-premises and single-user limitations would benefit LAMs preservation efforts while still protecting the interests of copyright holders. Alan Davidson, Nat. Telecom. & Info. Admin., No. 2023-5 Recommendation Letter on Exemptions to Permit Circumvention of Access Controls on Copyrighted

Works Under Section 1201 of the Digital Millennium Copyright Act (Sept. 24, 2024), https://perma.cc/Z98J-E2DL (PDF) at 56-59 (finding proponents "citefed] a number of scenarios where multiple individuals have tried to unsuccessfully access the same software remotely" and that "NTIA notes that no evidence demonstrates how a change to single-user limit would specifically impact the retro market"). Additionally, it went on to note that in the case of the on-premises limitation, proponents cited "testimonies from video game re-release companies who cited that the primary barriers to the re-release market is not competition from scholarly access, but rather commercial and logistical hurdles." Id. at 58.

310. See videogamedunkey, Remakes and Remasters, YouTube (Nov. 16, 2024), https://perma.cc/84NL-8LK4 (discussing the best remasters include quality-of-life upgrades and improved gameplay mechanics, as well as graphical upgrades that retain the spirit of the game). Of course, making changes to the original game is not required to make a reissued game commercially successful-sometimes compatibility with a different gaming system is enough. This author concedes she has repurchased the exact same game, The Elder Scrolls V: Skyrim, on five separate gaming platforms.

311. See supra note 310 and accompanying text.

312. See supra Part III.A-B.

313 Following the conclusion of the Ninth Triennial Rulemaking Cycle in October 2024, it is clear that future proponents should also argue for an explicit exemption allowing LAMs to use emulation tools to preserve video games. See 2024 RECOMMENDATION, supra note 260 and accompanying text. During the Ninth Cycle, the Register noted "the record on the use of emulation technologies is inconsistent and incomplete and the technologies are not addressed in the exemption text." Id.

314. See supra Part II.B.

315. Id.

316. See supra note 264 and accompanying text.

317. See EaaSI, supra note 122 (stating EaaSI relies on temporary DMCA exemptions from 2018 for legacy software "in cases where legacy software DRM might otherwise prevent us from exercising right to fair use).

318. Id.; see Joshua Jarvis, Latest DMCA Triennial Review Permits Jailbreaking, Video Game Preservation, and More, Foley Hoag LLP (Jan. 4, 2016), https://perma.cc/KR6V-4MQH (arguing the three-year process does not keep up with the pace of innovation and places burdens on users who have to repeatedly ask for permission for the same activity).

319. See supra note 261 and accompanying text.

320. Interview with Andrew Borman, supra note 99. While researching this Note, the author learned Australia has less restrictive laws around digital preservation, and therefore a longer history of allowing remote access to digital collections via emulators. See, e.g., Game On: Australian Emulation Network LIEF Project Launches, AAE.Net (Feb 27, 2023), https://perma.cc/J9VJ-3L7A (highlighting the Australian Emulation Network's LIEF project launch, which showcases "videogames and media artworks installed on original platforms and browser-based emulation"). While a comparative discussion across jurisdictions exceeds the scope of this Note, it would be valuable for future study.

321. Even if the triennial reevaluations continue generally, creating a permanent exemption for software and video game preservation would provide stability and consistency.

322. Interestingly, the Electronic Frontier Foundation is currently arguing the DMCA is facially invalid as it "chills free speech" and therefore violates the First Amendment. This argument was beyond the scope of this Note but is worthy of consideration. Pseudo-Copyright Rules that Block Fair Uses and Other Speech Violate the First Amendment, EFF Argues in Appellate Brief, Elec. Frontier Found. (Nov. 29, 2023), https://perma.cc/79R3-YP36.

323. See White, supra note 262, at 591 (proposing a federally funded video game preservation board). Other interesting legislative solutions might include adjusting fair use provisions to include digital preservation or introducing a "digital first sales doctrine" as contemplated with e-books. See generally Kevin J. Hickey, Cong. Rsch. Serv., LSB10453, COVID-19 and Libraries: E-Books and Intellectual Property Issues (2020) (proposing a digital first sales doctrine for e-books to Congress).