Here is where it gets complicated. Copyright law typically protects video games for from publication (in the US). Most classic games from the 80s and 90s are still under active copyright.
They argue that they operate under "fair use" and act as a library . Libraries have special exemptions to copy and lend media for preservation and research. They also emphasize that they provide access to "out-of-print" and "abandoned" software—games that are no longer sold or supported by the original publishers. internet archive roms
The Internet Archive has faced legal pressure over book lending (the Hachette v. Internet Archive case), and that ruling could set a precedent for software. If the courts decide that controlled digital lending doesn’t apply to ROMs, the Archive may be forced to delete terabytes of gaming history. Here is where it gets complicated
For now, the collections remain—a messy, wonderful, legally dubious testament to the idea that culture should not be lost to time. They argue that they operate under "fair use"
Many publishers disagree. Nintendo, in particular, has repeatedly sent DMCA takedown notices to the Internet Archive. In response, the Archive removes specific titles but often leaves massive collections untouched for years. The legal situation is a stalemate: no major court has ruled definitively on the Archive’s ROM collection because no publisher has sued them directly (likely due to the PR nightmare of suing a beloved non-profit).