Firstly, who cares? It would be a sad day when Bandai goes after a non-commercial homage to 1980s LCD games they probably forgot about.

Since 2003, the Copyright Office has granted a DMCA exemption in particular for preservation of video games, e.g., https://www.copyright.gov/1201/docs/librarian_statement_01.h...

> 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.

Most recently, in the 2024 review of DMCA exemption requests, no video game companies objected:

> The Software Preservation Network (‘‘SPN’’) and LCA jointly petitioned to renew the exemption for individual play by gamers and preservation of video games by a library, archives, or museum for which outside server support has been discontinued, and preservation by a library, archives, or museum, of discontinued video games that never required server support. No oppositions were filed against renewal, and one individual filed a comment in support.

Itch.io itself is able to host the project thanks to DMCA safe harbor provisions.

But itch.io is not a library. That exception is explicitly for "a library, archives, or museum." Even if they were technically a library, courts have already ruled that mass unlimited lending is not what they meant by 'individual play'.

I think this is pretty clearly infringing, the only issue is that the rightsholders themselves have to be the ones that bring a suit against them.

What makes itch.io not qualify as a library, archive, or museum?

There is a long laundry list of specific requirements in order to be considered an eligible library, archive or museum that qualifies for the DMCA exemption, which you also have to apply for and continually renew: https://www.federalregister.gov/d/2021-23311/p-191

Here are just some of them:

(ii) For purposes of paragraph (b)(3)(i) of this section, a library, archives, or museum is considered “eligible” if—

(A) The collections of the library, archives, or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives, or museum;

(B) The library, archives, or museum has a public service mission;

(C) The library, archives, or museum's trained staff or volunteers provide professional services normally associated with libraries, archives, or museums;

(D) The collections of the library, archives, or museum are composed of lawfully acquired and/or licensed materials; and

(E) The library, archives, or museum implements reasonable digital security measures as appropriate for the activities permitted by paragraph (b)(3)(i) of this section.

I would also argue that it doesn't matter whether itch.io itself is one. An archive hosted on that platform isn't any less of an archive.

According to the DMCA, legally, it does matter, because there is a very clear definition of an "eligible archive" that itch.io does not meet for the exemption to be valid. You also have to apply for the exemption explicitly, and renew it regularly.

Especially Nintendo. They've got quite a few Nintendo ROMs.

Early LCD machines had no ROMs I think.