ESA push to make saving old games a federal crime sparks backlash
ESA’s fight over section 1201 preservation rules keeps old games locked behind access controls, even as 87% of pre-2010 U.S. classics were deemed critically endangered.
The U.S. Copyright Office’s ninth triennial section 1201 recommendation, dated Oct. 18, 2024, landed after the Entertainment Software Association pushed against a broader preservation exemption that would have let libraries and archives keep lawfully acquired games playable after the server checks disappeared. For retro players, that fight goes straight to ownership: if access controls stay protected while publishers move to subscription-style access and revocable licenses, a purchased game can become unplayable the moment its online gate closes.
Section 1201 of the Digital Millennium Copyright Act is the anti-circumvention rule that governs when someone can legally break access controls on copyrighted works. In the 2024 cycle, Software Preservation Network and the Library Copyright Alliance asked to expand the video game preservation exemption so eligible libraries, archives and museums could preserve games that no longer need an external server for gameplay, and could make preserved copies available off-site under safeguards for private study, scholarship, teaching or research. The proposal was aimed at real-world preservation work, not loose file sharing.
ESA fought that model. In the hearing record, ESA counsel Steve Englund said members would support no combination of limitations that would allow remote access to preserved vintage games. ESA has also argued that strong copyright protection, including protections against circumvention technologies that control access to game software, is essential to the industry’s business model.
Preservation advocates have been pointing to hard numbers for years. The Video Game History Foundation and Software Preservation Network said in 2023 that 87% of classic U.S. video games released before 2010 were critically endangered, while only 13% of video game history was represented in the current marketplace. That is the backdrop for the emulation community’s concern: if preservation can only happen in a locked reading room, then a huge share of the medium stays out of reach the moment publishers stop supporting it.
ESA’s own 2018 comments to the Copyright Office said the trade group represents almost all major U.S. video game publishers. The association said the industry generated $36 billion in U.S. revenue in 2017 and supported more than 220,000 jobs across all fifty states.
Stop Killing Games has turned that same pressure into a consumer-rights campaign, arguing that publishers are permanently destroying games people already paid for when servers shut down. That is why the battle over section 1201 lands so hard in retro gaming: it decides whether a dead server ends a game for good, or whether preservation tools and emulators can keep it alive.
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