The 87% Problem
A 2023 study by the Video Game History Foundation found that 87% of classic video games — defined as games released before 2010 — are out of print and unavailable through any legal commercial channel. The games exist: ROM images circulate freely online through informal preservation networks, and emulation software can run them on any modern computer. The legal status of accessing these games through those channels is uncertain at best and clearly infringing in most jurisdictions. An entire generation's cultural heritage is effectively inaccessible to anyone unwilling to engage with legal ambiguity.
The comparison to other cultural forms is stark. Libraries can legally lend physical books; the Internet Archive legally provides access to out-of-print text. No equivalent infrastructure exists for games. The Library of Congress's digital preservation programs include video games, but the copyright exemptions that enable library preservation do not extend to public access in most cases. A scholar studying the cultural history of the 1980s can access virtually any book or film from that period through a research library; the same scholar cannot legally access most video games from the same period without purchasing physical hardware and cartridges at collector prices.
Hardware Decay and the Emulation Response
Physical game media decays. Cartridges with battery-backed save functions — common in NES, SNES, Game Boy, and Genesis cartridges — contain CR2032 cells with twenty to thirty year lifespans; games from the 1980s and early 1990s are losing their saves as these batteries die. Optical disc media suffers "disc rot," a chemical degradation of the reflective coating that renders discs unreadable within decades of manufacture. Magnetic floppy disks have shorter lifespans still; Amiga and Atari ST game libraries on floppy are actively degrading.
The emulation community has been the de facto preservation infrastructure for video game history. MAME (Multiple Arcade Machine Emulator), founded in 1997, preserves arcade game ROMs within a software framework that emulates the original hardware — the approach recommended by academic preservation scholars as more accurate than relying on commercial re-releases that frequently modify the original game. Nintendo's Virtual Console and modern Nintendo Switch Online services provide legal access to a fraction of their historical library; the majority of the library they hold copyrights for remains inaccessible.
Copyright Terms and Cultural Access
Copyright terms in the United States were extended to life-plus-70-years by the Sonny Bono Copyright Term Extension Act (1998) — legislation driven by Disney's interest in extending protection for Mickey Mouse. Video games released in the 1980s will not enter the public domain until the 2050s at the earliest; games released in the 1990s will not be freely available until the 2060s and later. These terms were calibrated for books and films, whose preservation is well-established in institutional frameworks; no equivalent framework was considered for software.
The practical effect is that games published by companies that no longer exist — publishers that went bankrupt, were acquired, or simply stopped operations — are in copyright limbo where no entity holds clear rights but also no entity has granted preservation access. Legally obtaining the rights to preserve and provide access to these "orphan works" requires legal research, rights holder tracing, and negotiation processes that no cultural institution has the resources to conduct at scale for hundreds of thousands of individual titles.
What Preservation Requires
Genuine game preservation requires more than ROM dumps and emulators. It requires documentation of the development context: design documents, source code, developer interviews, marketing materials, and the cultural context in which games were created and received. The Strong National Museum of Play in Rochester, New York, and the Computer History Museum in Mountain View, California, maintain physical collections with archival standards; the Video Game History Foundation conducts systematic documentation research. These institutions operate on non-profit budgets against a preservation need that exceeds any available resources.
Legislative solutions have been proposed and partially implemented: the Library of Congress grants limited exceptions to the Digital Millennium Copyright Act for preservation purposes, but the exceptions apply to institutional preservation rather than public access. European Union copyright law includes more robust cultural heritage exceptions that some member states have implemented to allow public access to preserved digital works. The United States has not adopted equivalent public access provisions. The result is a growing gap between what can be preserved in institutional contexts and what can be made accessible to the public — a gap that informal emulation networks fill outside the law, performing the cultural function that legal frameworks have failed to provide.