The Entertainment Software Association, the US video games trade group, has reportedly asked the US government to add “plug and play” emulation handhelds to the Notorious Markets List. That's a collection of marketplaces, sites, and sellers accused of selling counterfeit goods or engaging in piracy, and while there are plenty of bad egg gadgets out there, the ESA could open an accusatory can of worms.
In a document highlighted by VGC, the ESA specifically mentions retro handhelds that come with thousands of games pre-loaded on a microSD card. “In the video game sector, illicit plug-and-play consoles and handheld devices are the functional equivalent of superfakes,” claims the ESA. While you could assume the body is talking specifically about the cheapest plug-and-play gadgets out there with certain Italian plumbers plastered over their boxes, its statement risks targeting legit devices.
“They can look and feel like legitimate, mass-market consumer electronics – molded housings, color displays, polished user interfaces, retail packaging, product reviews, warranty-like representations, and listings on familiar e-commerce platforms. Yet their commercial appeal rests solely on a concealed memory card or internal drive loaded with hundreds, thousands, or even tens of thousands of unauthorized copies of copyright-protected games.”
The ESA goes on to highlight that "some products also use protected game titles, screenshots, characters, logos, or other source-identifying material in listings, packaging, interfaces, or promotional content without authorization.” The association then proclaims that “the result is not merely a low-quality electric device sold from the margins of commerce. It is a turnkey piracy product that presents visually and commercially to consumers as legitimate devices.”
If you're familiar with how the emulation handheld market works, you'll know why this statement worries me. Rather than specifically highlighting the cheapest game sticks and no-name handhelds, its description extends to legitimate gadgets by established names in the space, like Anbernic, Retroid, Ayaneo, and Ayn, which are often caught up in the same net thanks to dubious sellers bundling handhelds with ROMs.
The part the ESA is perhaps not grasping is the fact that handhelds that are similar in shape and size to the Nintendo Switch aren't inherently illegitimate. And yet, in its statement, the group says, “The high degree of apparent legitimacy magnifies the economic harm. A single device can substitute for lawful purchases across multiple video game publishers and console generations, divert sales from authorized games, compilations, subscriptions, remasters, and licensed retro hardware.”
The last part of the statement emphasises the whole issue with the ESA's current mindset. If you try and suggest that by providing an easy way to emulate that you're causing harm, then that technically extends to mainstream branded gadgets like the Steam Deck OLED or your smartphone. However, it can target the real bad actors if it sticks to the parts that highlight the inclusion of pirated games as the systemic problem.
“Because the product is often delivered with an immediately usable catalogue of pirated games, it removes the technical friction that once separated mainstream consumers from video game piracy," explains the ESA. Sellers commonly use the illicit library as a key selling point, and the commercial price often reflects this.”
Sellers are indeed at the core of the emulation piracy problem, and even Lenovo's cheap retro handheld ended up bundled with ROMs. Loading up these gadgets with unlicensed games is sadly a standard practice within the market, and the ESA proposes targeting said sellers with these seven steps:
- “Treat preloaded unauthorized game libraries as core evidence of commercial-scale piracy”
- “Inspect bundled and separately shipped storage media”
- “Require sellers to substantiate authorization for included games and protected branding”
- “Suspend repeat sellers and linked storefronts, not merely individual listings”
- “Preserve seller, payment, shipment, and advertising records for enforcement”
- “Improve customs targeting for devices and components associated with preloading operations”
- “Coordinate action against manufacturers, exporters, importers, fulfillment providers, and online marketplaces that knowingly facilitate these products”
Thankfully, the steps do seem to target sellers on Amazon and AliExpress specifically rather than handheld makers. Ideally, if the device category is added to the list, it will simply deter and combat listings that are marketed using copyrighted materials or the allure of pirated games. That said, Anbernic is being singled out as a brand that "normalizes hardware-based piracy by delivering illicit catalogues through a polished consumer product," despite not actually directly selling devices with any games pre-installed.
Not only does the ESA say Anbernic meets the “definition of a superfake”, but it adds, “by marketing the devices through ordinary retail channels, the operation also shifts monitoring, investigation, notice, and remediation costs to publishers and marketplaces.” Here's the thing, though: the handheld maker isn't the one selling devices bundled with ROMs at marketplaces, so it's effectively condemning the brand for the actions of sellers.
In a nutshell, the ESA risks blaming brands who make handhelds for copyright infringements they aren't committing. If the companies themselves are added to the Notorious Markets list, rather than the marketplaces themselves or sellers, then it could be an unjust assault on the emulation scene at large. That's the last thing anyone looking to play retro games on the go needs right now, especially since AI component demand is driving up prices.
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