Entertainment Software Association seeks to prevent restoring functionality of old video games on copyright grounds, even for museums and archives
Mitch Stoltz / Electronic Frontier Foundation :
Context & Ripple Effects
In 2015, the Entertainment Software Association opposed a proposed DMCA exemption that would let museums and archives legally bypass copy protections to restore and run old games — the position Mitch Stoltz's Electronic Frontier Foundation reporting put on record. The exemption process is the main legal gate for institutional game preservation, so ESA's stance set the terms for everything that followed.
The arc since then has been partial wins inside narrow walls: archivists gained ground under the 2018 DMCA exemptions, but only if they acquired both the original game and any server code through lawful means. By late 2024, the Copyright Office denied preservationists' request for remote-access lending by libraries and archives — evidence that the industry-side position ESA articulated in 2015 kept shaping rulemaking outcomes a decade on.
First-order effects
- Libraries, archives, and museums seeking to restore abandoned multiplayer or DRM-protected titles stay dependent on publishers' cooperation, since ESA's objection targets the exemption they need to legally circumvent technical protection measures.
- The EFF and its counsel Mitch Stoltz are cast as the counterparty in the rulemaking fight, pushing preservation access against the trade group representing major publishers.
Second-order effects
- EFF escalated beyond comment letters into litigation, suing the US government over the DMCA clause itself — a move from asking for carve-outs to attacking the underlying statute's rulemaking machinery.
- Preservation institutions must budget for legal acquisition of original hardware, media, and server code as a condition of any exemption work, raising costs and narrowing which titles can be preserved at all — the constraint documented in research-oriented preservation coverage.
Third-order effects
- If the pattern holds, institutional video game preservation becomes a negotiated privilege renewed every rulemaking cycle rather than a library right — with the Copyright Office, not courts, deciding how much of gaming history remains playable, and the 2024 remote-lending denial showing the ceiling stays low even after exemptions exist.
The trend: Video game preservation is converging on a regime where archives operate only inside DMCA exemptions that industry groups like the ESA help define, leaving long-term access to cultural software contingent on periodic regulatory renewal.