Copyright Office rejects a remote research-access exemption for preserved video games
Preservation advocates sought screened remote access to out-of-print games for research. ESA opposed the expansion. The Copyright Office rejected it in 2024, finding the proposed safeguards insufficient to establish likely noninfringing use.
Case period:
Published by The Dispute Index editorial teamPublished Updated
Overview
The case examines the 2024 decision to retain the physical-premises restriction in the video-game preservation exemption. The proposal would have allowed off-premises access for scholarship, teaching or research, for a limited time and after individualized review of each request. The existing on-premises preservation exemption remains.
The original hearing (opens in a new tab) records a proposal for individualized human review. The Register's recommendation (opens in a new tab), printed pages 188-192, discusses limited access, purpose screening and copyright notices. It finds the proposed safeguards insufficient to establish likely noninfringing use, including concerns about the market for older games.
VGHF (opens in a new tab) criticizes the outcome and says ESA told the hearing it would never support remote access under any conditions. ESA (opens in a new tab) welcomes the decision. At the April hearing, ESA's counsel said he did not think there was, at the moment, any combination of limitations ESA members would support for remote access.
Timeline
2 timeline entries on this page. Dates: April 18, 2024 to October 25, 2024
April 2024
Copyright hearing examines screened remote research access
Preservation advocates propose individualized review of research requests. ESA questions whether those safeguards would prevent recreational use and harm to the market for older games.
[01]April 18, 2024 copyright hearing on video-game and software preservation
The original testimony records proponents' screening proposal and ESA's concerns about recreational access and the market for older games.
April 18, 2024 copyright hearing on video-game and software preservationClass 6(b), printed pages 7-31 and 42-47
October 2024
The 2024 review rejects the remote video-game access expansion
The review retains the physical-premises restriction for preserved video games. The Register finds the proposed safeguards insufficient to establish likely noninfringing use. Existing preservation exemptions remain.
[02]Register's 2024 recommendation on software and video-game preservation
The Register distinguishes computer-program proposals from the proposed off-premises video-game exemption and finds the latter's safeguards insufficient to establish likely noninfringing use.
Register's 2024 recommendation on software and video-game preservationPrinted pages 163-194, especially 188-192: proposed safeguards and market-effects analysis[03]Video Game History Foundation
The foundation criticizes the refusal to expand the exemption and promises continued advocacy. Its account of ESA's position should be compared with the original hearing's qualifications.
VGHF statement on the 2024 DMCA review decision · Video Game History FoundationPhil Salvador's statement supporting SPN's remote research-access petition[04]Entertainment Software Association
ESA welcomes the decision and argues that existing copyright protections support creative work and access to games.
ESA statement supporting the 2024 copyright exemption decision · Entertainment Software AssociationStatement following the October 25 decision
Response record
Responses
Choose one response filter, or select All responses to see the full record.
4 responses. Newest first.
Frank CifaldiFounder and director of the Video Game History Foundation Before this statement
Cifaldi says he is proud of the effort by his organization and its partners to change copyright law and cannot see what more they could have done.
"This fails the needs of citizens in favor of a weak sauce argument from the industry, and it's really disappointing."
CondemnedCase context: Copyright Office rejects a remote research-access exemption for preserved video games
Full statement and sources
Cifaldi says the decision favors a weak industry argument over citizens' needs.
After the statement
The accompanying quoted VGHF post links to the foundation's statement.
Frank Cifaldi condemns the remote game-research access decision · Frank CifaldiPost 1849869475782459704Why this label?
Relative to the decision to refuse remote research access, Cifaldi says it fails citizens in favor of a weak industry argument.
This label describes the statement's response within the context above.
Kendra AlbertTechnology lawyer, speaking personally Before this statement
Earlier in the thread, Albert reports that the final rule declines remote access to preserved games even when each request is individually vetted, and describes being gutted by the result. The post itself begins by noting that Albert speaks only personally, not for clients.
"I do believe we made the best case we could that scholarly access to video games *that are not commercially available* does not harm the market. I do not believe that this evidence was seriously engaged with by the Copyright Office."
CondemnedCase context: Copyright Office rejects a remote research-access exemption for preserved video games
Full statement and sources
Albert argues that the Copyright Office did not seriously engage with evidence against market harm.
After the statement
In the next post, Albert says on-the-record comments from re-release publishers that scholarly access would not harm their market do not appear to have mattered in the Office's market-harm analysis.
Kendra Albert criticizes the evidence assessment in the game-preservation decision · Kendra AlbertPost 3l7e3h6rzy52yWhy this label?
Relative to the decision to refuse remote research access, Albert argues that the Copyright Office did not seriously engage with evidence that scholarly access would not harm the market.
This label describes the statement's response within the context above.
Entertainment Software AssociationTrade association representing video-game businessesDirectly involved Before this statement
ESA's statement says it recognizes the importance of preserving video games given their significance in culture and society.
"the U.S. Copyright Office confirms that the current level of video game preservation is appropriate"
Defended or excusedCase context: Copyright Office rejects a remote research-access exemption for preserved video games
Full statement and sources
ESA says the decision confirms that the current level of video game preservation is appropriate, and thanks the Copyright Office for supporting existing copyright protection.
After the statement
ESA adds that the Office recognizes video games present unique copyright concerns, and thanks the Library of Congress and the Copyright Office for supporting existing copyright protection.
ESA statement supporting the 2024 copyright exemption decision · Entertainment Software AssociationStatement following the October 25 decisionWhy this label?
Relative to retaining the existing preservation limits, ESA expressly approves the decision. Its general support for preservation does not negate that endorsement.
This label describes the statement's response within the context above.
Video Game History FoundationVideo-game preservation and research nonprofitDirectly involved Before this statement
VGHF says it is disappointed by the decision but does not regret the petition process, citing its research finding that about 87 percent of U.S. games released before 2010 remain out of print.
"Unfortunately, lobbying efforts by rightsholder groups continue to hold back progress."
CondemnedCase context: Copyright Office rejects a remote research-access exemption for preserved video games
Full statement and sources
VGHF says it is disappointed by the decision, blames rightsholder lobbying for holding back progress and pledges continued advocacy for preservation access.
After the statement
VGHF says ESA told the hearing it would never support remote research access under any conditions, and pledges to continue advocating for preservation access.
VGHF statement on the 2024 DMCA review decision · Video Game History FoundationPhil Salvador's statement supporting SPN's remote research-access petitionWhy this label?
Relative to retaining the on-premises restriction, VGHF criticizes the outcome and the lobbying it says obstructed the requested expansion.
This label describes the statement's response within the context above.
Sources
(6)
Original text
Register's 2024 recommendation on software and video-game preservation
Relevant passage: Printed pages 163-194, especially 188-192: proposed safeguards and market-effects analysis
About this source
The Register distinguishes computer-program proposals from the proposed off-premises video-game exemption and finds the latter's safeguards insufficient to establish likely noninfringing use.
- Author
- Shira Perlmutter, Register of Copyrights
- Published
- Accessed
Original post
Kendra Albert criticizes the evidence assessment in the game-preservation decision
Relevant passage: Post 3l7e3h6rzy52y
About this source
Kendra Albert's post comments on rejecting expanded controlled remote research access to preserved video games. The post was published in October 2024.
- Author
- Kendra Albert
- Published
- Accessed
Original post
Frank Cifaldi condemns the remote game-research access decision
About this source
Frank Cifaldi's post comments on rejecting expanded controlled remote research access to preserved video games. The post was published in October 2024.
- Author
- Frank Cifaldi
- Published
- Accessed
Original text
April 18, 2024 copyright hearing on video-game and software preservation
Relevant passage: Class 6(b), printed pages 7-31 and 42-47
About this source
The original testimony records proponents' screening proposal and ESA's concerns about recreational access and the market for older games.
- Author
- U.S. Copyright Office
- Published
- Accessed
Official statement
VGHF statement on the 2024 DMCA review decision
Relevant passage: Phil Salvador's statement supporting SPN's remote research-access petition
About this source
The foundation criticizes the refusal to expand the exemption and promises continued advocacy. Its account of ESA's position should be compared with the original hearing's qualifications.
- Author
- Phil Salvador; Video Game History Foundation
- Published
- Accessed
Official statement
ESA statement supporting the 2024 copyright exemption decision
Relevant passage: Statement following the October 25 decision
About this source
ESA welcomes the decision and argues that existing copyright protections support creative work and access to games.
- Author
- Entertainment Software Association
- Published
- Accessed
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- Publisher
- The Dispute Index
- Title
- Copyright Office rejects a remote research-access exemption for preserved video games
- First published
- Last updated
- Permalink
- https://disputeindex.com/cases/video-game-preservation-remote-research-access-dmca-exemption
The Dispute Index. "Copyright Office rejects a remote research-access exemption for preserved video games". First published: 2026-10-21. Last updated: 2026-10-21. https://disputeindex.com/cases/video-game-preservation-remote-research-access-dmca-exemption