Digital Millennium Copyright Act (DMCA) (1998) — Section 512

Establishes safe harbors for online platforms hosting user-uploaded content, provided they respond to DMCA takedown notices promptly. This is the mechanism Nintendo used against Yuzu forks on GitHub in 2026, and the same tool routinely used to suppress ROM sites and preservation repositories.

Relevance: Fully active and increasingly used offensively against preservation. The notice-and-takedown system was designed to protect platforms from liability, but in practice it functions as a rapid, low-cost enforcement tool for rights holders — a takedown notice costs a publisher almost nothing to file, while forcing developers and archivists to mount legal defenses to restore their work. No court has ruled that preservation-oriented repositories enjoy any special protection from Section 512 takedowns.

Digital Millennium Copyright Act (1998), Section 1201

Prohibits circumvention of technological protection measures (DRM/copy protection) regardless of whether the underlying use would otherwise be fair use. Contains a narrow library exemption under Section 1201(d) for on-site access only. The triennial rulemaking process, where the 2024 exemption petition was decided, exists under Section 1201 as a safety valve for specific, time-limited exceptions.

Relevance: The most actively contested law in the entire field. It is the central battleground for every DMCA exemption petition and every emulator lawsuit. Nintendo v. Yuzu was primarily a Section 1201 circumvention claim, not a straight copyright claim. It has never been successfully challenged in a video game preservation context, and the 2024 denial and the Yuzu settlement both leave Section 1201 fully intact and aggressively enforced. The next triennial rulemaking in 2026 is the nearest opportunity to chip away at it.

Sonny Bono Copyright Term Extension Act (1998)

Extended copyright terms for corporate-authored works, which covers nearly all commercial video games, to 95 years from publication or 120 years from creation, whichever is shorter. This is why no commercial video games are in the public domain yet, and why the earliest Atari 2600 titles won't enter public domain until around 2073. Critics called it the "Mickey Mouse Protection Act," arguing it effectively eliminated the public domain for an entire generation of media.

Relevance: Fully active and arguably the single most structurally damaging law for video game preservation. Because no games have aged into the public domain, every legal access question must be fought through exemption processes or fair use arguments rather than simply accessing freely available works. It is legally uncontested, as the Supreme Court upheld its constitutionality in Eldred v. Ashcroft (2003), meaning legislative reform is the only avenue for change. No such reform is currently on the horizon.

Computer Software Rental Amendments Act (1990)

Prohibits the commercial rental of software without the copyright holder's permission, explicitly covering video games. This is why video games cannot be rented or lent from a library the same way a DVD or book can. It is a significant and often overlooked barrier sitting underneath the DMCA restrictions.

Relevance: Still active but somewhat eclipsed in current debates by the DMCA, since the DMCA's anti-circumvention provisions create a more fundamental barrier even before lending rights become relevant. It remains a reason why libraries cannot simply lend physical game cartridges or discs the way they lend other media, even setting DRM aside entirely. It has not been directly challenged in a preservation context and no reform effort is currently active.

Section 108 of the Copyright Act, Library and Archive Exemptions (1976, amended 1998)

Allows libraries and archives to make copies of works for preservation purposes, but only if the work is not subject to normal commercial exploitation and cannot be obtained at a reasonable price. Publishers frequently argue that even minimal re-release activity satisfies the "commercially available" threshold, blocking Section 108 access for entire catalogs. Section 108 also generally prohibits libraries from making works available to multiple simultaneous users.

Relevance: Active but heavily limited in practice for games. The "commercially available at a reasonable price" carve-out is the critical weakness. Publishers have successfully argued that the existence of any re-release market, however small, disqualifies most games from Section 108 protection. The VGHF's finding that 87% of pre-2010 games are out of print was partly intended to directly counter this argument in the 2024 DMCA proceedings, but the Copyright Office was not persuaded. Section 108 is undergoing a broader legislative review by Congress, though no game-specific reforms have advanced.

Section 107, Fair Use (1976)

The statutory codification of fair use and the defense at the heart of Sega v. Accolade and Sony v. Connectix. The four-factor test weighs the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the potential market. Courts have found reverse engineering for interoperability to be fair use, but the Copyright Office has been reluctant to extend that reasoning to library lending or remote access.

Relevance: Still legally active but structurally weakened for preservation purposes by the DMCA. Fair use is a defense that must be argued in court after the fact and provides no proactive protection. Because Section 1201 operates independently of fair use, even a clearly fair use can still be illegal if it requires circumventing copy protection to accomplish. The last time fair use was successfully argued in a video game context was Sony v. Connectix in 2000, over two decades ago. No emulator developer since has been willing or able to take a case to trial to test whether that reasoning still holds against modern DMCA claims.

Copyright Act of 1976

The foundational modern US copyright law establishing that copyright applies automatically to any original work fixed in a tangible medium, which courts later extended to software and video games. Set the framework for fair use (Section 107) and library exemptions (Section 108) that all subsequent laws built upon or constrained.

Relevance: Fully active as the overarching statutory framework everything else sits within. However, its original intent, including a meaningful public domain and robust library access, has been substantially narrowed by the Sonny Bono Act's term extensions and the DMCA's anti-circumvention provisions, both of which were layered on top of it. The 1976 Act alone would provide considerably more breathing room for preservation than the current combined legal landscape does.

Nintendo DMCA Takedowns Against Yuzu Forks on GitHub (February 2026)

Major Players: Nintendo (plaintiff/enforcer); independent open-source developers maintaining Yuzu forks; GitHub (hosting platform subject to takedown notices); the broader emulation community.

What Changed: The repositories were placed in a state of legal limbo. Under GitHub's policy, the users maintaining these repositories had the opportunity to file counter-notices if they believed the copyright claim was invalid, but if Nintendo escalated by filing a lawsuit within 10–14 days, the code could remain offline. No binding legal precedent was set, but the action demonstrated Nintendo's intent to pursue not just primary emulator developers but downstream forks as well,  effectively trying to erase the code base entirely rather than just shut down a single project.

DMCA Section 1201 Triennial Rulemaking — Video Game Remote Access Exemption Petition (October 2024)

Major Players: Software Preservation Network, Library Copyright Alliance, and Video Game History Foundation (petitioners); Kendra Albert of Albert Sellars LLP (lead counsel for petitioners); the Entertainment Software Association (primary opposition, representing major publishers, some of whom privately declined to support the ESA's position on the record); the US Copyright Office and Register of Copyrights at the Library of Congress (decision-maker).

What Happened: Preservationists petitioned for a narrow expansion of the existing library preservation exemption under DMCA Section 1201, specifically, the right to let vetted researchers access out-of-print games remotely, rather than requiring physical on-site visits. The proposed exemption applied only to lawfully acquired games no longer commercially available, with institutions required to screen users for legitimate research, scholarship, or teaching purposes before granting access. The ESA opposed it, arguing people would exploit library access for free recreational play and damage the market for classic re-releases. Some game publishers testified directly that limited remote access would not harm their re-release markets, evidence the petitioners argued the Copyright Office failed to seriously engage with.

What Changed: The Copyright Office denied the remote access expansion, finding petitioners had not demonstrated the proposed off-premises uses would be non-infringing, and that a meaningful risk of market harm to the legacy game market remained. The existing on-site, single-user preservation exemption was renewed, so libraries can still hold and provide in-person access to preserved games, but remote access for researchers remains unavailable. Uniquely, video games continue to be treated more restrictively than virtually every other archival medium: the Copyright Office already permits remote lending of other software and media types, making games a specific carve-out. Because this is a regulatory proceeding rather than a court ruling, no binding legal precedent was set. The next opportunity to re-petition opened in June 2026.

DMCA Section 1201 Triennial Rulemaking — Video Game Exemption Petition (October 2024)

Major Players: Video Game History Foundation and Software Preservation Network (petitioners); the US Copyright Office and Register of Copyrights (decision-makers); the Entertainment Software Association (primary opposition, representing major publishers); libraries and academic archives (intended beneficiaries).

What Changed: Under the existing anti-circumvention rules in Section 1201 of the DMCA, libraries and archives remain unable to break copy protection on games in order to make them remotely accessible to researchers. The status quo was preserved — libraries can hold game collections but can only provide on-site access, putting games in a legally worse position than books, films, or music for archival purposes. The VGHF noted that the game industry's absolutist position forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games.

Nintendo of America v. Tropic Haze (Yuzu) (D.R.I., February–March 2024)

Major Players: Nintendo of America (plaintiff); Tropic Haze LLC and its lead developer Bunnei (defendants); the US District Court of Rhode Island; the emulation and preservation communities as affected third parties. Citra, a 3DS emulator also run by Tropic Haze, was collaterally shut down.

What Changed: The settlement resulted in a permanent injunction against Tropic Haze — prohibiting it from distributing Yuzu or any other software that circumvents Nintendo's anti-piracy technology, with Tropic Haze ordered to destroy all related materials and surrender the Yuzu domain. However, a federal judge never ruled on the merits, leaving the legal gray area intact. In practical terms, the swift and total capitulation had a significant chilling effect on emulator developers. It also showed Nintendo's DMCA strategy — focusing on circumvention of encryption rather than direct copyright infringement of game code — could be effective even against emulators that contained none of Nintendo's own code.

Sony Computer Entertainment, Inc. v. Connectix Corp. (9th Cir., 2000)

Major Players: Sony Computer Entertainment (plaintiff); Connectix Corporation (defendant, maker of Virtual Game Station); the Ninth Circuit Court of Appeals. Sony was supported by Nintendo, Sega, and 3dfx Interactive; Connectix was backed by fellow software firms and trade associations.

What Changed: The Ninth Circuit ruled that PlayStation firmware fell under a lowered degree of copyright protection because it contained unprotected functional elements. This built on Sega v. Accolade to firmly establish that clean-room emulators — those reverse-engineered without directly copying proprietary code into the final product — can be lawful under fair use. It remains the strongest judicial protection emulation has ever received in the US, and is still cited today as the reason emulators themselves are generally considered legal even as ROMs and circumvention tools are not.

Sega Enterprises, Ltd. v. Accolade, Inc. (9th Cir., 1992)

Major Players: Sega Enterprises (plaintiff); Accolade Inc., an independent game publisher (defendant); the US District Court for the Northern District of California (initial ruling for Sega); the Ninth Circuit Court of Appeals (partial reversal on appeal).

What Changed: The Ninth Circuit established that reverse engineering can constitute fair use when no other means are available to access a console's functional principles. It introduced the legal concept of the "intermediate copy" and became the most frequently cited case regarding the legality of reverse engineering — the reasoning upon which the reverse engineering clause of US copyright law (17 U.S.C. § 1201(f)) is based. Every subsequent emulation and preservation ruling has built on this foundation, making it the single most consequential case in the entire field.

Here is the complete reference list with the previously missing sources added, in APA 7 order:

Chip Law Group. (2024, September 10). Nintendo reaches $2.4 million settlement against emulator company. https://www.chiplawgroup.com/nintendo-reaches-2-4-million-settlement-against-emulator-company/

Conley, J., Andros, E., Chinai, P., Lipkowitz, E., & Perez, D. (2004). Use of a game over: Emulation and the video game industry, a white paper. Northwestern Journal of Technology and Intellectual Property, 2(2), 1–31. https://scholarlycommons.law.northwestern.edu/njtip/vol2/iss2/3/

Delaware Journal of Corporate Law. (2025, February 19). Press start: Navigating the legal labyrinth of video game emulation. https://djclblogs.org/2025/02/19/press-start-navigating-the-legal-labyrinth-of-video-game-emulation/

Eldred v. Ashcroft, 537 U.S. 186 (2003).

FindLaw. (2024, November 8). U.S. Copyright Office presses "pause" on DMCA exemption for video games. https://www.findlaw.com/legalblogs/legally-weird/u-s-copyright-office-presses-pause-on-dmca-exemption-for-video-games/

Hachette Book Group, Inc. v. Internet Archive, 664 F. Supp. 3d 370 (S.D.N.Y. 2023), aff'd, No. 23-1260 (2d Cir. 2024).

Hemnes, T. M. S. (1982). The adaptation of copyright law to video games. University of Pennsylvania Law Review, 131(1), 171. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4669&context=penn_law_review

Hollister, S. (2024, October 25). Video game preservationists have lost a legal fight to study games remotely. The Verge. https://www.theverge.com

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Managing Intellectual Property. (2025, April 9). Nintendo v Yuzu: The legal boundaries of games console emulators. https://www.managingip.com/article/2endvauyar5ncsxzj277k/sponsored-content/nintendo-v-yuzu-the-legal-boundaries-of-games-console-emulators

Nintendo of America, Inc. v. Tropic Haze LLC, No. 1:24-cv-00082 (D.R.I. 2024).

PC Gamer. (2024, October 25). US copyright law forces researchers to explore extra-legal methods for game preservation. https://www.pcgamer.com/games/us-copyright-law-forces-researchers-to-explore-extra-legal-methods-for-game-preservation-say-historians-who-are-disappointed-after-being-denied-a-dmca-exemption/

PC Gamer. (2024, September 6). The Internet Archive has lost the appeal for its landmark copyright case. https://www.pcgamer.com/software/the-internet-archive-has-lost-the-appeal-for-its-landmark-copyright-case-agreeing-to-pay-an-undisclosed-amount-to-publishers/

Romano Law. (2024, April 15). Breaking down the Yuzu emulator lawsuit. https://www.romanolaw.com/ninten-dont-breaking-down-the-yuzu-emulator-lawsuit/

Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).

Software Preservation Network and Library Copyright Alliance. (2024). Reply comment regarding proposed exemption class 6(b). U.S. Copyright Office. https://www.copyright.gov/1201/2024/comments/reply/Class%206(b)%20-%20Reply%20-%20Software%20Preservation%20Network%20and%20Library%20Copyright%20Alliance.pdf

Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000).

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17 U.S.C. § 107 (1976).

17 U.S.C. § 108 (1976, amended 1998).

17 U.S.C. § 109(b) (1990).

17 U.S.C. §§ 512, 1201 (1998).

17 U.S.C. § 302 (1998).

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The information contained on this page is provided for general informational and educational purposes only and does not constitute legal advice. The case summaries, statutory overviews, and related content presented here are intended to provide a broad overview of US copyright law as it relates to video game preservation and should not be relied upon as a substitute for professional legal counsel.

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