> The Register further found that even if proponents had satisfied their burden of
establishing noninfringing uses, they nonetheless failed to demonstrate that video game console
access controls have or are likely to have a substantial adverse impact on such uses. Proponents
identified two broad categories of activities that were allegedly threatened by the prohibition on
circumvention, scientific research and homebrew software development.
So it looks like the EFF are going at it from the abandonment angle this time having failed with the science and homebrew arguments. I'd say they have a better chance of making their case this time.
I didn't read the reasoning, but in my opinion the requirement for giving "abandonware" special treatment has been reduced by the advent of sites like GOG.com which preserve old games. However, there are probably still games that are almost impossible to purchase in playable form, so in principle there should be an allowance for these cases.
[1] http://www.gamespot.com/articles/abandonware-now-legal/1100-...