We should definitely not rely on for profit businesses to preserve gaming history. They have repeatedly declined to do so in the past.
In line with the spirit of that, I think it's reasonable to require companies to release their source code and assets after the copyright duration expires (and I'm in full agreement that the current term is far too long).
I think that the hard part is assessing "profitability" though - Nintendo has shown that they're able to re-release games decades after initial release and turn a profit. Trying to legislate "profitability" could result in Nintendo (and other big game companies) holding on to their IP for longer, as opposed to just getting Congress to reduce copyright term back down to 15 years or something.
I agree with the intent, I just think that it'd be extremely hard to legally implement and a fixed term would work almost as well.
If I buy an album or a book I can be reasonably certain I can enjoy that content in 25 years. If I buy an online service video game I can be reasonably certain I cannot enjoy that content in 25 years.
With trademark we have the "use it or lose it" clause, we could have the same with copyright, "publish or lose it". If it's not available for purchase or free consumption for some duration (6-12 months seems reasonable) anyone can publish it. This should also extend to other works of art like books and movies. I'm uncertain if you should get the copyright back if you go back to publishing later. Probably not since that will deter anyone else from making the work available.
Now, all these arguments are pretty poor, and wouldn't stand much chance of winning in court, but the fact that there's a bunch of arguments that could be made makes stalling a lawsuit out until the defendants run out of money a much more dangerous possibility.
I think a bigger issue is that video games and movies frequently have licensed other media like music in it. The musician might be very actively selling and licensing their music but now I can just get this abandoned video game and extract the song?
The simple solution seems to be tying the copyright to the duration something is available for.
If they shut down the servers, they aren't planning on profiting on that specific game anymore, and cede the monopoly on running those servers.
If that causes Nintendo to keep the servers up, that's a fine outcome too. I'm less interested in forcibly wrangling Nintendos IP away from them than making sure their cultural contributions are still available.
A company may not have the rights to give away all their source code and assets. For source code, this is probably less of an issue than it once was because open source libraries are used so widely. But I can tell you from first hand experience, if a company buys another company with a proprietary product and wants to open source it, that can actually be a pretty big project. (As is then building working product outside of a company's build system.)
Years and years ago, I took ages to open source a shareware product I was no longer developing. Not because I thought the code had any real value or because I was a meanie. But it had assembly code from a commercial library I had purchased. I eventually did release it--not that anyone cared at that point--only because the company that wrote the libraries was out of business and their product seemed to have passed to the other side as well.
See 3D Pinball for Windows – Space Cadet
Assuming there's no third-party backup of these levels somewhere, they're destroying countless people's creative work. I don't care what the terms of service say. Companies shouldn't have the legal authority to delete the only copy of third parties' copyrightable work.
The current situation is mass censorship.
If Nintendo decides tomorrow to shut it down, tough luck! These servers cost money, and it's even more work to responsibly open it up to the community.
I don't care if the servers cost money. Boo hoo. Nintendo sold access to people. They should be held responsible for upholding their end of the deal. At the very least they should stop being able to use misleading terms like "buy", the terms of the deal should be much more strictly defined instead of this "we can do whatever" nonsense, and the relevant parts of that deal should be made clear and apparent to consumers prior to any exchange of money.
I don't think it's "censorship", but I do think the way it currently works is unethical and should be illegal.
A hypothetical book publisher could adopt a similar models for books - if you're an author, you have to use the publisher's app to write your novel, and anyone who wants to read it has to access it from the publisher's servers via the publisher's app. For whatever reason, said publisher could corner the market on some niche, culturally-important genre of book. Would be a bummer if they decided server maintenance was no longer worthwhile and just deleted all the books as per the license terms.