In an odd footnote, the Register also notes that while emulation of classic gaming consoles does not violate copyright law, it has “historically been associated with piracy” and therefore “poses a potential problem” for any emulated remote library access Game catalogs. This footnote paradoxically cites Video Game History Foundation (VGHF) founder and director Frank Cifaldi’s talk at the 2016 Game Developers Conference on the demonization of emulation and its importance for video game preservation.

“The moment I became the Joker was when someone in charge of copyright watched my GDC talk about how wrong it was to associate imitation with piracy, and their conclusion was: ‘ Imitation is associated with piracy,’” Cifaldi joked in a social media post.

The fight continues

In a statement issued in response to the decision, the VGHF criticized the “lobbying efforts of rights holder groups” that “continue to slow down researchers’ progress.” The status quo restricting remote access “forces researchers to explore extralegal methods to access the vast majority of out-of-print video games that are otherwise unavailable,” writes the VGHF.

“Frankly, my colleagues in literary studies or film history have fairly routine and regular access to digital versions of the things they study,” NYU professor Laine Nooney argued to the Copyright Office earlier this year. “These (travel) barriers (to access to physical games) are real and significant, and they hinder research in ways that are not equitable compared to our colleagues in other disciplines.”

Speaking to Ars Technica, VGHF library director Phil Salvador said the group was “disappointed” by the Copyright Office’s decision but “proud of the work we’ve done and the impact this process has had on our fight in.” This cycle has helped justify everything from game re-releases to grants for research into video game history, and we will keep this conversation going in the gaming industry.”