"Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access."
AKA old console roms. https://archive.org has piles now unchallenged for years as a result.
I haven't looked into the source of this specific exemption yet, but if it is the mechanism I think it is -- a ruling on an exemption petition -- it is important to understand that this exempts a user from circumventing the protection mechanism but it does not provide any kind of exemption for "trafficking" in tools that help people actually perform the circumvention... which frankly makes a lot of these exemptions feel a bit academic :(.
Maybe, but archive.org has listed this exemption on their website for years as their rationale for being able to distribute ROMs for dead consoles and it has totally remained unchallenged AFAICT.
Copyright enforcement seems often "use it or lose it"
SPAM didn't act fast enough to protect their brand, and once it became commonplace as a term for internet garbage it was considered too late to enforce.
Unless someone like Nintendo makes a new Super Nintendo that can play original cartridges, I don't expect they would do well in court trying to enforce given the exemption and after doing nothing for so long at this point.
I study IP law academically but IANAL. With that said, I think we are honestly at a free for all at this point, and the more people that host ROMs openly, the worse the case against them gets.
But it does imply DMCA can't be used to go after people that do.
DMCA is the only tool people that wish to stop distribution of media have, so it might as well be a blanket statement of legal distribution IMO, and archive.org certainly interprets it this way.
You can go get almost any Super Nintendo ROM on archive.org right now, legally.
I hope to see this foothold extended.