- Thanks to Raph Koster for pointing out something I hadn't spotted - that the U.S. Copyright Office has again ruled on DMCA exemptions, and that classic games are getting an exemption once again.

The exact phrasing of the exemption (and there's still a separate one for dongles, too), is: "Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive."

However, as I commented in Raph's post: "The exemption is only good for libraries and archives - it doesn’t apply to your regular man on the street, I’m afraid. I helped author the original DMCA exemption (which was granted 3 years ago) with the Internet Archive in the hopes that it would help libraries make good archives of games, but many ‘dark archiving’ and redistribution problems remain, so it’s a bit rough."

The sad thing about going to the trouble of making exact digital copies of old games, of course, is that you can still only show one digital copy of that game for each physical copy you have (no redistribution is allowed). Since the game is likely to be in copyright for another 70+ years, you need to have a physical location such as a museum to show the games, unless your official archival institution wants to be shoveling your backup ROMs onto an inaccessible server for the next few decades.

If you add these facts to the reality that a lot of old software is really difficult to make exact copies of (the Software Preservation Society did some spectacular work on this, but their lead tech guy is working at Sony on PlayStation 3 now, so I'm guessing he has less time than he used to!), then you get to a tricky situation. Some institutions like Stanford University are archiving physical copies of games, to some degree, and I feel like the Computer History Museum is another good place to start - but they have much rarer mainframe/punchcard system software to worry about as well.

Anyhow , to conclude - I tried to get into this conundrum a little (both at the Internet Archive and heading up the IGDA's Software Preservation SIG for a bit), but it ends up being painstaking work on the digital preservation front that feels very intangible.

So... I think someone needs to set up a proper, permanent real-life Video Game Museum, like the Experience Music Project - ideally funded by someone very rich and understanding in a Paul Allen style (ping me if you're just that person!). Then there would be a physical base to start the digital archiving to make sure things don't get lost in the mists of time, ensuring that classic early games are preserved properly in both physical and digital forms. That's one way to do it, anyhow. But will it ever happen?

[UPDATE: JVM at Curmudgeon Gamer has an aggrieved post on this exact subject, headlined 'Abandonware *still* not legal, people', and he sums up the issues better than I, I think. Please take note and correct, Joystiq, Aeropause, and everyone who has run confused posts on this recently.]