Exemption 27, also known as the proposed Classes 6(a) and 6(b) in the Ninth Triennial Section 1201 Proceeding, was a petition to amend the Digital Millennium Copyright Act (DMCA) so that libraries and archives could remotely share digital access to out-of-print video games for research purposes. In October 2024, the U.S. Copyright Office denied the request, siding with the Entertainment Software Association (ESA) against advocates led by the Video Game History Foundation (VGHF) and the Software Preservation Network (SPN).

What Exemption 27 Would Have Changed for Video Game Preservation

The proposed changes would have amended the existing exemptions permitting libraries and archives to circumvent technological protection measures (TPMs) on computer programs and video games for the purpose of preservation. It also would have removed certain limitations, such as programs only being available to a single user at a time. Proponents argued this would not affect the market because only works no longer “reasonably available in the commercial marketplace” would be affected. In practical terms, the exemption would have opened the door for a digital library system where historians and researchers could “check out” classic games through emulation, similar to how a university researcher can borrow an ebook through Libby.

For the past three years, the VGHF had been supporting the Software Preservation Network on a petition to allow libraries and archives to remotely share digital access to out-of-print video games in their collections. Under the current anti-circumvention rules in Section 1201 of the DMCA, libraries and archives are unable to break copy protection on games in order to make them remotely accessible to researchers. This limitation is often cited as a key barrier. Currently, researchers must travel to physical archives to access historic games.

Frank Cifaldi and the Video Game History Foundation

The Video Game History Foundation is a non-profit foundation founded by Frank Cifaldi. The primary aim of the foundation is the archival, preservation, and dissemination of historical media related to video games. Cifaldi founded the VGHF in 2017 and began stepping away from Digital Eclipse to focus on the foundation full time. Before that, he worked at Other Ocean, where he described his position as evolving into a “designer slash producer” role, spearheading the launch of a game label within the company called Digital Eclipse, working on projects like the Mega Man Legacy Collection (2015) and The Disney Afternoon Collection (2017).

Early access to the VGHF’s digital library was made available to the public in January 2025. The Digital Library contains an extensive index of gaming media, including text archives, video game magazine media, and game development and production material. The Video Game History Foundation, Inc. is a 501(c)(3) non-profit organization dedicated to preserving, celebrating, and teaching the history of video games.

The 87% Study That Changed the Argument

The Video Game History Foundation, in partnership with the Software Preservation Network, conducted the first-ever study on the commercial availability of classic video games, and the results have been widely described as concerning. 87% of classic video games released in the United States are critically endangered. In the study, Phil Salvador’s VGHF research team set out to find how many “classic” video games that received an official release in the U.S. were still available for legal purchase. Out of over 4,000 titles surveyed, only 13% of the total games are still on the market in one way or another. The remainder are largely unavailable through standard commercial channels. The full study defined “classic” as any video game released before 2010.

The platform-specific numbers further illustrate this trend. As of April 2023, only 5.87% of Game Boy games were still in circulation. The Commodore 64’s library had 4.5% of games still in print, while approximately 12% of the PlayStation 2’s library remained available for legal purchase.

It could be argued that this study became one of the most frequently cited pieces of evidence by preservation advocates, as it appears to quantify a long-standing concern within the retro gaming community. As Cifaldi put it in the VGHF’s study explainer: “For years, we’ve known that the availability of classic video games in a legal, safe way has been dire, but no one has ever put a number to that.”

The ESA’s Position on Game Preservation Exemptions

During the VGHF’s hearing with the U.S. Copyright Office, the Entertainment Software Association stated that it would not support remote game access for research purposes under the proposed framework. This position has been interpreted by some observers as a firm negotiating stance. The ESA has historically opposed certain carveouts in copyright law related to preservation and access.

The ESA argued that there is a “substantial market for classic games,” which could potentially be affected by broader exemptions. In an email to Game Developer, the ESA said it “and its member companies are committed to, and actively support, professional efforts to preserve video games.”

Some critics have suggested that this position may prioritize maintaining future commercial opportunities over expanding access to out-of-print works. As Techdirt noted, “The ESA and groups like it are very good at saying ‘no’, but absolutely terrible at providing any alternatives it would support for doing this sort of preservation work.”

The Copyright Office Ruling and the “Joker Moment”

Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, ruled that proponents of video game preservation had not demonstrated that the requested usage is non-infringing. The Copyright Office sided with arguments from the ESA and other industry groups, who stated that the proposed remote access could potentially harm the market for classic game re-releases.

The Register stated that the VGHF “have not met their burden of showing that reproducing works to allow for multiple simultaneous use in the computer program class is likely to be fair.”

Some observers found aspects of the ruling notable, particularly the discussion around the association between emulation software and piracy. The Copyright Office cited comments from Frank Cifaldi’s earlier work, which some critics believe may have been interpreted differently than originally intended.

Cifaldi responded publicly, stating: “The moment I became the Joker is when someone in charge of copyright law watched my GDC talk about how it’s wrong to associate emulation with piracy and their takeaway was ’emulation is associated with piracy.’”

Some commentators have suggested that this interpretation may contribute to ongoing debate about how emulation is perceived within legal and policy discussions.

What Happens Next for Video Game Preservation and the DMCA

The temporary exemptions under the current rule will remain in effect until October 28, 2027. The Copyright Office is expected to initiate its next triennial rulemaking in June 2026.

The VGHF described the decision as disappointing but stated it would continue advocating for expanded access. The organization also noted that current limitations may lead some researchers to seek alternative methods to access out-of-print materials, though this remains a point of debate within the broader community.

Online discussions following the ruling reflected a range of perspectives, with some participants expressing concern that the decision primarily affects those attempting to operate within existing legal frameworks. As lawyer Kendra Albert noted, “the reality is that people who are going to run, like, giant pirate libraries of games do not care about what 37 CFR 201.40 says.”

It could be argued that the broader debate around Exemption 27 reflects ongoing questions about how video games are treated as cultural artifacts. With only 13% of video game history currently represented in the marketplace, some observers believe the issue will continue to be revisited in future rulemaking cycles.

Frequently Asked Questions About Exemption 27 and Video Game Preservation

What is Exemption 27 in the DMCA?

Exemption 27 refers to the proposed Classes 6(a) and 6(b) in the Ninth Triennial Section 1201 Proceeding. The proposed changes would have amended the existing exemptions permitting libraries and archives to circumvent TPMs on computer programs and video games for the purpose of preservation, and would have removed the limitation that preserved programs be accessible to only one user at a time.

Why did the Copyright Office deny the video game preservation exemption?

The Register sided with the ESA, stating that the VGHF “have not met their burden of showing that reproducing works to allow for multiple simultaneous use in the computer program class is likely to be fair.” The Register also expressed concern that the proposed safeguards were not sufficient to prevent potential market harms.

What percentage of classic video games are out of print?

According to the VGHF’s 2023 study, 87% of classic video games released in the United States are critically endangered. Out of over 4,000 titles surveyed, only 13% remain on the market.

When can preservationists try again for a DMCA exemption?

The Copyright Office is expected to initiate its next triennial rulemaking in June 2026. Advocates can submit new petitions during that cycle, with a decision expected in 2027.

What is the ESA’s position on video game preservation?

The ESA has stated that it and its member companies support professional preservation efforts, but has also indicated opposition to remote access proposals under the framework discussed during the 2024 hearing.

Can libraries currently preserve video games at all?

Yes, but with limitations. Researchers typically must travel to physical archives to access historic games, as the DMCA restricts breaking copy protection for remote access. Some observers note that this differs from how other media formats are handled in library systems.