The Organizations That Won the Right to Keep Dead Video Games Playable Didn't Renew It This Cycle — Two Individuals Did

Excerpt: Under Section 1201 of the Copyright Act, the exemption that lets libraries, archives and museums preserve discontinued video games — and lets ordinary owners restore them once a publisher's servers go dark — has to be re-filed every cycle to stay alive. In the 2021 and 2024 cycles that renewal was filed by institutions: the Software Preservation Network and the Library Copyright Alliance, the organizations that built the record behind the exemption. On the 2027 renewal docket the video-game line carries exactly two petitioners, both private individuals, Dan Elkins and Ken Austin. The Library Copyright Alliance did file in the same docket — for computer programs generally and for motion pictures — and left the video-game line unchecked. Nobody has explained the gap, and the comment window closes on September 28, 2026.

An original LostInConsoles data investigation, read directly off the Copyright Office's Section 1201 docket pages for the tenth triennial rulemaking, the filed renewal petitions themselves, the codified exemption text at 37 CFR 201.40, and the Office's own notice of inquiry. Every checkbox, petitioner name and date below is quoted from those public records.

The short version

The right to keep a dead console game playable is not permanent law. It is a regulatory exemption that the Librarian of Congress grants for a fixed term, and it survives only if somebody files to renew it before the term runs out. The Section 1201 rulemaking runs on a fixed cycle; if a class of work goes unrenewed, the exemption covering it lapses, and that activity becomes a circumvention violation again.

For the video-game preservation class, the filing pattern has been institutional. In 2021 the renewal came from the Software Preservation Network (SPN) and the Library Copyright Alliance (LCA). In 2024 it came from the same two organizations. Those dockets are public and the filer names are on the record.

The tenth triennial rulemaking opened this cycle with a notice of inquiry on June 9, 2026, setting renewals for Monday, August 24, 2026 and comments for Monday, September 28, 2026. When the page listing the filed renewal petitions went up, the line reading "Abandoned Video Games" carried two entries. Both are individuals: Dan Elkins, and Ken Austin. Neither is an institution. Neither is the coalition.

This matters because the exemption covers more than hobbyist tinkering. It authorizes libraries, archives and museums to preserve games whose servers have been switched off, and it authorizes owners of lawfully acquired games to restore playability when authentication or other online dependencies stop working. The two 2027 petitioners each describe that as their own reason for filing. The organizations that litigated and documented the class in the previous two cycles are, on this line, absent.

There is a second thing worth stating precisely, because it is easy to get wrong: the Library Copyright Alliance is not missing from the 2027 docket. It filed two renewal petitions this cycle — one for the preservation of computer programs, one for the preservation of motion pictures. What it did not file was a renewal claiming the video-game class. On its own forms, the video-game box is left unchecked.

So the accurate statement is narrow and checkable: the class that keeps discontinued console games alive has, this cycle, only individual renewal petitioners — while the organizations that built and defended the class renew adjacent classes and skip this one.

What the docket actually says

The tenth triennial proceeding lives at copyright.gov/1201/2027/. The Office's own page states the sequence plainly. The notice of inquiry was published June 9, 2026. "Petitions for renewal of current exemptions and petitions proposing new exemptions were due August 24, 2026." And: "Written comments in response to petitions for renewal must be received no later than 11:59 p.m. Eastern Time on September 28, 2026."

That produces a comment window that runs three months from the notice of inquiry to the deadline — a short runway for the only public input the Office takes on whether the record behind an exemption still holds.

The renewal-petition page, at copyright.gov/1201/2027/petitions/renewal/, lists the filings by name. The preservation-relevant lines, quoted exactly:

• "Renewal Pet. – Preservation – Library Copyright Alliance – Motion-Pictures" → Renewal-Pet-Preservation-Library-Copyright-Alliance-Motion-Pictures.pdf
• "Renewal Pet. – Preservation – Library Copyright Alliance – Computer-Programs" → Renewal-Pet-Preservation-Library-Copyright-Alliance-Computer-Programs.pdf
• "Renewal Pet. – Abandoned Video Games – Dan Elkins" → Renewal-Pet-Abandoned-Video-Games-Dan-Elkins.pdf
• "Renewal Pet. – Abandoned Video Games – Ken Austin" → Renewal-Pet-Abandoned-Video-Games-Ken-Austin.pdf

Two organizations' filings, two individual filings. On the page as posted, the string "video game" appears only in the two individual entries. The Library Copyright Alliance's two entries name motion pictures and computer programs, not video games.

The box that was left unchecked

The renewal form asks a petitioner to tick exactly which current exemptions it seeks to renew. The Office's form for the tenth rulemaking lists the classes from the ninth, including this one, verbatim:

"Video games for which outside server support has been discontinued, to allow individual play by gamers and preservation of games by libraries, archives, and museums (as well as necessary jailbreaking of console computer code for preservation uses only), and discontinued video games that never required server support, for preservation by libraries, archives, and museums"

On the 2027 forms, each class line begins with a checkbox glyph. Reading the extracted petition text directly, the convention is unambiguous: a capital "Q" is an empty box, an "@" is a ticked box.

• Dan Elkins' petition — the video-game class line carries @. Ticked.
• Ken Austin's petition — the video-game class line carries @. Ticked.
• Library Copyright Alliance, computer-programs petition — the video-game class line carries Q. Empty. The @ on that form sits on a different line: "Computer programs other than video games, for the preservation of computer programs and computer program-dependent materials by libraries, archives, and museums."
• Library Copyright Alliance, motion-pictures petition — the video-game class line again carries Q. Empty.

That is the whole finding, and it is a matter of glyphs on the face of the documents rather than interpretation. The two individuals each claimed the video-game class. The organization that had claimed it before did not, this time.

What the two individuals actually wrote

Both items are visible on the filings. Elkins, under "Explanation of Need":

"Owners of lawfully acquired video games continue to lose access to gameplay when copyright owners discontinue external server support that has been tightly coupled with authentication or other functions necessary for operation. The exemption protects more than single-player use on one machine. Its definition of 'local gameplay' includes gameplay on a personal computer or video game console, as well as gameplay among locally connected personal computers or consoles, provided that gameplay does not depend on an online service or facility."

Austin, on the same item:

"I know of no changes to the legal landscape surrounding video games that would obviate the need for this exemption to exist, particularly for individual owners of games with [online rights management] that can no longer authenticate due to defunct online servers, for the purpose of restoring playability. I have games in my personal collection that suffer from this problem. Without the exemption, I would effectively be denied lawful access to these games, despite the fact that I lawfully acquired them."

Both filings are, in substance, adequate to the streamlined-renewal standard the Office applies — which is deliberately modest. As the notice of inquiry puts it, the sole purpose of the streamlined proceeding "is to determine whether petitioners have made a minimal showing that the regulatory record that supported a previously issued exemption remains representative of the current marketplace." A petitioner does not have to re-litigate the class. It has to file and say why it still applies.

That is exactly why the composition of the filing list is the story. Under a minimal-showing standard, the identity of the filer is not a formality — it is the entire evidentiary input. When the filers are two individuals rather than a preservation institution, the record the Office weighs is thinner, whatever the merits.

What the organizations said the last time

In 2024, the same class was renewed by SPN and LCA together, and the petition names the two organizations and their submitter of record on its first page: "I, Kendra Albert, submitter of record, represent the Software Preservation Network ('SPN') and work with the Library Copyright Alliance ('LCA'), two national organizations that preserve digital heritage by making out-of-commerce software accessible in support of research, teaching, and learning."

On that 2024 form the video-game class is ticked — the glyph convention on the ninth-rulemaking form is different (0 for empty, ® for ticked), and the marked box sits on the "Video games for which outside server support has been discontinued" line, above the unticked "Computer programs other than video games" line. The 2021 renewal list, for its part, names "Abandoned Video Games – SPN & LCA" as the filer of that class.

So across the two most recent cycles the record is consistent: the class was carried by the coalition. This cycle, on that line, it is carried by two named individuals.

The tests this story failed before it ran

An absence is the easiest kind of claim to get wrong, so it was checked against the ways it could be false.

Is the institutional filing simply not posted yet? The renewal page is live and returns HTTP 200, and it already lists non-video-game renewals from the Library Copyright Alliance. The video-game entries it does list are the two individual ones. A page that has posted the organizations' other classes has not withheld a video-game filing from them.

Is there a third filer, an individual or an organization, buried further down the roster? The full renewal roster was read, not just the video-game header. Searching the page text for other game, console or video renewals returns nothing beyond the Elkins and Austin entries. There is no third video-game renewal petitioner on this docket.

Did the Library Copyright Alliance stop filing altogether? No — it filed twice, for motion pictures and for computer programs. Its absence is specific to the video-game class, not a wholesale withdrawal.

Was the class instead handled in a proposed new exemption rather than a renewal? The page for newly proposed exemptions returns HTTP 404 as of this writing; new-exemption listings for this cycle are still forthcoming. That is a genuine limit on what can be asserted, and it is stated below rather than papered over.

Was 2018 really an institutional filing? It cannot be shown from the archived pages used here: the Copyright Office's 2018 renewal and proposed-petition URLs now serve a 404 shell, not the roster. The claim in this article is therefore built on the two cycles whose filer names could be read directly, 2021 and 2024 — not on the earlier one.

One further check, on the substance: the two individual filings are not trying to smuggle in new language. A renewal petition "may not... request new language or exempted activities for a current exemption," and both filings track the codified class. As the Office warns, "a petitioner may not use a renewal petition to request new language." Nothing in the two individual petitions does.

What this is not claiming

It is not a claim that the exemption will lapse. The Office can renew a class on the strength of the petitions before it, and the streamlined standard is a low bar. Two individual filings that state a continuing need may well satisfy it. The observation is about who is absent, not about the outcome.

It is not a claim about motive. SPN, LCA, the Video Game History Foundation, the Entertainment Software Association and others have argued this class forcefully in prior cycles, and LCA is plainly still active in this one. Why the video-game line carries no organizational filer this time is not stated in any document read for this article.

It is not a count of support. Comments in favour of renewal are due September 28, 2026 and had not yet been filed when the docket was read; the strength of the record may look materially different once they land. This article describes the renewal-petition list as posted, not the final shape of the proceeding.

It is not a legal opinion. Whether an individual filing is materially weaker than an institutional one is a judgment about the rulemaking, and the Office makes it. The checkable facts are the class, the filers, the boxes, and the dates.

Sources

• U.S. Copyright Office — Section 1201 tenth triennial rulemaking (2027 cycle): proceeding page (notice published June 9, 2026; renewals due August 24, 2026; comments due September 28, 2026); renewal-petition index.
  • Renewal Pet. – Abandoned Video Games – Dan Elkins: Renewal-Pet-Abandoned-Video-Games-Dan-Elkins.pdf
  • Renewal Pet. – Abandoned Video Games – Ken Austin: Renewal-Pet-Abandoned-Video-Games-Ken-Austin.pdf
  • Renewal Pet. – Preservation – Library Copyright Alliance – Computer-Programs: Renewal-Pet-Preservation-Library-Copyright-Alliance-Computer-Programs.pdf
  • Renewal Pet. – Preservation – Library Copyright Alliance – Motion-Pictures: Renewal-Pet-Preservation-Library-Copyright-Alliance-Motion-Pictures.pdf
• Comment submission page for the 2027 cycle (deadline 11:59 p.m. Eastern, September 28, 2026). Docket COLC-2026-0100 on regulations.gov.
• Notice of inquiry: Library of Congress, Copyright Office, Exemptions To Permit Circumvention of Access Controls on Copyrighted Works, 37 CFR Part 201, Docket No. 2026-4, published June 9, 2026 — Federal Register doc. 2026-11545. Text of the streamlined-renewal standard and the filing deadlines quoted above.
• Codified exemption: 37 CFR 201.40(b)(19), "Video games in the form of computer programs embodied in physical or downloaded formats," as amended (89 FR 85446, October 28, 2024); the adjacent 37 CFR 201.40(b)(20) covers "Computer programs, except video games," preserved by libraries, archives and museums — the class the Library Copyright Alliance did renew this cycle. Verified against the electronic Code of Federal Regulations.
• Prior-cycle baselines for the same class:
  • 2024 (ninth triennial) renewal list, filer "Software Preservation Network and Library Copyright Alliance"; the SPN/LCA renewal petition for the abandoned-video-games class (submitter of record Kendra Albert).
  • 2021 (eighth triennial) renewal list, filer "Abandoned Video Games – SPN & LCA."
  • 2018 renewal/proposed-petition URL now returns a 404 page and could not be used as a baseline.

Method note: the renewal roster, the class lists and the checkbox glyphs were read from the Copyright Office's own posted pages and from the text of the filed petition PDFs. The glyph convention on the 2027 forms is Q = empty and @ = ticked, and was verified line-by-line against each petition's own class list; the 2024 form uses a different convention (0 / ®). The quoted class definition and the rationales are verbatim. The connecting argument — that the identity of the renewal filer is materially part of the record under a minimal-showing standard — is LostInConsoles' reading of the Office's stated standard, and is labelled as analysis. Statements about the eventual outcome of the proceeding are not predictions; the Office decides the merits.