Table of Contents

1. Key Highlights
2. Introduction
3. The Notorious Markets List: scope, process and consequences
4. Plug-and-play handhelds described as “superfakes”: what the ESA is arguing
5. How these devices reach consumers: retail channels and the appearance of legitimacy
6. Technical anatomy of preloaded devices and the piracy supply chain
7. ESA’s seven-step plan for enforcement: what it asks and why it matters
8. Why Anbernic was singled out and how manufacturers may respond
9. The broader piracy ecosystem the ESA also nominated
10. Enforcement challenges: technical, legal and practical barriers
11. Impact on legitimate retro markets, preservation and homebrew communities
12. Marketplace responsibility and precedents for action
13. Consumer risks beyond copyright infringement
14. Customs, export controls and international coordination
15. Policy considerations and paths for balanced regulation
16. Likely outcomes and how stakeholders are positioned
17. Case analogies: how other industries handled similar challenges
18. What consumers and small retailers should watch for
19. Toward practical next steps for policymakers and industry
20. FAQ

Key Highlights

• The Entertainment Software Association has formally asked the U.S. Trade Representative to include plug-and-play handhelds preloaded with thousands of unauthorized games on the annual Notorious Markets List, calling them the videogame equivalent of “superfakes.”
• The ESA proposes seven enforcement steps aimed at marketplaces, customs, manufacturers and payment processors; it also specifically nominates manufacturer Anbernic and broader piracy categories such as cracked-game repackers and torrent coordination hubs.
• Adding these devices to the Notorious Markets List would increase pressure on platforms and customs to act, but practical enforcement will face technical, legal and international obstacles that intersect with preservation, homebrew and legitimate emulation communities.

Introduction

Retail shelves and online storefronts are filling with pocket-sized devices that promise instant access to libraries of classic games. Many of these plug-and-play and handheld units ship with microSD cards or internal storage containing hundreds or thousands of retro titles. For consumers the offer is simple and seductive: instant play, no downloads, nostalgia bundled in a polished unit. For game publishers the reality is starkly different. The Entertainment Software Association (ESA) has asked the Office of the United States Trade Representative (USTR) to identify these devices as a “notorious market” — a formal designation used to spotlight high-volume piracy and counterfeiting.

The ESA frames these products as “superfakes” that mimic legitimate consumer electronics while trafficking in unauthorized copies of copyrighted works. The nomination elevates a dispute that has simmered for years into a potential policy action with ripple effects through supply chains, marketplaces and the retro gaming community. The issue raises competing questions: how to stop large-scale commercial piracy without undermining legitimate preservation, emulation and the small businesses that serve retro players; how to hold manufacturers, resellers and fulfillment services accountable when products cross borders; and how marketplaces can reliably distinguish lawful retro compilations from illicit libraries.

This article explains the USTR Notorious Markets process, dissects the ESA’s arguments and proposed remedies, examines the practical and legal challenges of enforcement, and assesses likely consequences for manufacturers, marketplaces and players. Real-world examples illustrate enforcement choices and show where careful policy can separate illegal commercial piracy from legitimate retro hardware and preservation efforts.

The Notorious Markets List: scope, process and consequences

The Notorious Markets List is an annual report compiled by the USTR to identify markets—online and physical—that facilitate large-scale piracy and counterfeiting. It is not itself a sanction; inclusion does not impose criminal penalties. Instead, the list functions as a tool for transparency and diplomatic pressure. Governments, rightsholders and industry groups submit nominations. The USTR gathers public comments and evidence, compiles the report, and uses it to encourage partner governments, payment processors, registrars, hosting providers and marketplaces to take enforcement or remedial steps.

Because the list is public and influential, being named can trigger faster action by intermediaries, stricter customs scrutiny, and a higher profile in global enforcement conversations. Platforms cited on the list face reputational costs and intensified pressure to police sellers. Governments targeted by the report often respond with anti-piracy measures or increased customs inspections. For rightsholders, the list offers a mechanism to elevate emerging business models that enable infringement but sit in murky legal zones.

The ESA’s submission arrives during the USTR’s annual nomination window. The agency has received roughly 30 responses so far, including those nominating entities for inclusion and those seeking removal. The ESA’s case centers on plug-and-play handhelds and their supply chains, arguing that the ubiquity and appearance of legitimacy around these devices deserve designation as a Notorious Market.

Plug-and-play handhelds described as “superfakes”: what the ESA is arguing

The ESA describes modern plug-and-play handhelds and consoles as “the functional equivalent of superfakes.” That term elevates these devices from simple low-quality knockoffs to products that replicate legitimate consumer electronics while concealing vast caches of unauthorized copyrighted content.

Key elements the ESA highlights:

• Visual and commercial legitimacy: Many devices use molded housings, color displays, retail-style packaging, polished user interfaces and marketplace listings. These present the product to consumers as legitimate hardware, lending them a veneer of authenticity.
• Hidden catalogs: The commercial appeal is anchored in concealed memory cards or internal drives loaded with hundreds or thousands of unauthorized game ROMs. The piracy component is the principal value driver, not the hardware itself.
• Unauthorized use of IP: Sellers sometimes include protected game titles, screenshots, characters, logos or other branding in listings, packaging or promotional materials without license.
• Ease of consumer access: Preloaded libraries remove the technical friction that previously separated casual consumers from piracy. No knowledge of emulation, ROM sites or file transfers is required.

The ESA argues that these characteristics intensify economic harm. A single handheld with a large pirated catalog can substitute for purchases across multiple publishers and console generations. It diverts sales from new remasters, licensed retro collections, subscription services and authorized retro hardware. That substitution dynamic, the ESA says, magnifies the market harm beyond what a single pirated ROM might cause.

How these devices reach consumers: retail channels and the appearance of legitimacy

The distribution picture for preloaded retro handhelds spans multiple channels. While grey-market or dedicated piracy storefronts still exist, many of these devices are sold through mainstream marketplaces. The ESA’s submission points to Amazon and similar platforms as places where preloaded units are readily available. That access reinforces consumer confusion: a polished listing on a familiar site feels legitimate.

Sales channels include:

• Large e-commerce marketplaces (Amazon, eBay and regional equivalents), where sellers list preloaded units alongside legitimate electronics.
• Niche retro and import shops that source devices from overseas manufacturers or distributors.
• Direct-to-consumer storefronts operated by small brands or private sellers, often using social platforms or dedicated web shops.
• Cross-border trading channels and importers that distribute units into new markets.
• Brick-and-mortar vendors in flea markets or discount electronics stores.

Marketplaces’ systems for benchmarking legitimacy often rely on listing metadata, seller histories and user reviews. That approach is inadequate when the product’s market value is the hidden preloaded library. Sellers can emphasize hardware features and downplay the content source, misleading both consumers and automated moderation systems. When packaging, product imagery and firmware interfaces display protected IP, platforms face stronger grounds for action—yet sellers commonly obfuscate or shift the liability to customers by claiming devices are “for homebrew” or “for backup purposes.”

Real-world example: A device marketed as a “retro handheld with 10,000 games” arrives in consumer electronics-style packaging, includes a polished menu interface, and is sold through a major marketplace. Reviews praise the selection and immediate playability. The listing may not explicitly state the games are unauthorized; buyers assume a licensed compilation. For publishers, removing such offerings requires proof that specific titles are present and that sellers lack authorization.

Technical anatomy of preloaded devices and the piracy supply chain

Understanding how preloaded handhelds are assembled and sold clarifies enforcement points. Most of these devices share common technical features:

• Hardware: Low-cost system-on-chip (SoC) boards, small LCDs, molded plastic housings, buttons or D-pads, and USB charging.
• Storage: Internal flash memory or removable microSD cards containing the operating system, emulator frontend and ROM library.
• Software: Lightweight Linux or embedded firmware running retro emulators and a launcher; sometimes customized user interfaces that mimic licensed menus.
• Preloading process: ROMs are written to storage media in bulk at a manufacturing or fulfillment facility. Some manufacturers ship devices with preloaded storage; others attach preloaded microSD cards in packaging or ship them separately to avoid customs or platform detection.
• Fulfillment: Manufacturers, contract manufacturers, freight forwarders and fulfillment partners coordinate to ship devices globally. Sellers can source units both from official distributors and grey-market suppliers.

The commercialized supply chain creates multiple points of potential intervention: upstream production, storage media preloading, export documentation, shipping manifests, and marketplace listings. Each node offers a different evidentiary burden and enforcement leverage. For instance, customs can inspect shipments to discover preloaded memory cards, while marketplaces can suspend sellers who repeatedly post suspect listings.

Manufacturers sometimes argue that they ship hardware only and do not control what buyers or third parties load onto devices. That defense weakens if the device is routinely sold or shipped with preloaded content—especially if removable storage arrives prepopulated inside sealed packaging. The ESA’s recommendation to inspect bundled and separately shipped storage media targets this tactic.

ESA’s seven-step plan for enforcement: what it asks and why it matters

The ESA proposes seven concrete steps for governments and market operators. Each step targets a different part of the ecosystem and collectively seeks to make enforcement more effective.

1. Treat preloaded unauthorized game libraries as core evidence of commercial-scale piracy
   • Rationale: The presence of a ready-to-play library demonstrates the device’s primary commercial purpose. Regulators should accept preloaded libraries as central proof in enforcement actions.
2. Inspect bundled and separately shipped storage media
   • Rationale: Sellers split shipments or hide preloaded cards in packaging to evade detection. Customs and marketplaces should inspect both devices and accompanying media.
3. Require sellers to substantiate authorization for included games and protected branding
   • Rationale: Sellers that advertise recognized titles, screens or logos should be required to show licensing documentation or proof of rights.
4. Suspend repeat sellers and linked storefronts, not merely individual listings
   • Rationale: Bad actors recreate listings under new accounts if enforcement targets only individual pages. A robust approach suspends entire seller networks.
5. Preserve seller, payment, shipment, and advertising records for enforcement
   • Rationale: Transactional records enable tracing revenue, distribution networks and fulfillment partners. Preservation is essential for legal actions.
6. Improve customs targeting for devices and components associated with preloading operations
   • Rationale: Customs measures can intercept preloaded media and components before they enter consumer markets.
7. Coordinate action against manufacturers, exporters, importers, fulfillment providers, and online marketplaces that knowingly facilitate these products
   • Rationale: Piracy is a multi-actor enterprise. Liability and remedial measures should reflect the role of each actor in the chain.

Taken together, these steps aim to raise the cost of operating commercial-scale piracy enterprises by denying access to marketplaces, payment rails and transport services. The ESA frames the approach as targeted: not just takedowns of listings but durable interruption of the networks that produce and distribute preloaded libraries.

Why Anbernic was singled out and how manufacturers may respond

The ESA specifically nominated Anbernic as a “Notorious Online Market,” alleging that its devices are routinely offered or shipped with removable memory cards preloaded with unauthorized copies of games. Anbernic is a well-known manufacturer of handheld retro devices, particularly in import and enthusiast communities. The company’s hardware has gained visibility because of competitive pricing, build quality and a catalogue of devices that support many retro systems.

Why single out a manufacturer?

• Scale and visibility: When a manufacturer’s devices dominate the market, their distribution choices have outsized impact.
• Pattern of preloading: Evidence that devices are repeatedly sold with preloaded media suggests involvement beyond casual user modification.
• Channel of distribution: If units are advertised and sold through mainstream marketplaces with preloaded libraries, sellers can be treated as commercial distributors.

Manufacturers can respond in several ways:

• Deny responsibility, claiming that hardware is shipped blank and that any preloading is the result of third-party sellers or end-user modification.
• Implement controls: offer “blank storage” certification, certify authorized distributors, or collaborate with rights holders to sell licensed compilations.
• Pursue due-diligence measures: require distributors to sign attestations about preloading, maintain logs of shipments, or refuse sales to repeat problematic resellers.

Some manufacturers may argue that their hardware is part of the broader retro ecosystem, enabling homebrew and preservation. That argument is strongest when companies take steps to prevent the spread of unauthorized content—by shipping blank storage, limiting preinstalled content to licensed collections, or providing tools to help users obtain games lawfully.

The broader piracy ecosystem the ESA also nominated

Beyond preloaded handhelds, the ESA’s submission nominates several other categories for USTR scrutiny:

• Cracked game sources and repackers: Websites or services that modify cracked game distributions to reduce file size, remove DRM or repackage executable bundles for redistribution.
• Linking sites and aggregators: Portals that collect links to pirated content hosted elsewhere, sometimes monetizing through advertising or referral networks.
• Torrent and piracy coordination markets: BitTorrent trackers, indexing sites and coordination forums that organize mass distribution of game files.
• Unauthorized digital goods marketplaces: Platforms that sell game keys, accounts or virtual goods without authorization from rights holders.
• Commercial cheat markets: Sellers of paid cheating tools that can affect online game ecosystems and monetize unauthorized exploitation.

These nominations reflect the ESA’s strategy: flagging not only a narrow hardware phenomenon but the full infrastructure that enables and monetizes piracy. The goal is to prompt coordinated action across hosting providers, domain registrars, ad networks, payment processors and logistics providers.

Enforcement challenges: technical, legal and practical barriers

Labeling preloaded handhelds as notorious would increase enforcement pressure, but practical obstacles remain.

1. Evidence gathering and proof
   • Demonstrating that a specific seller routinely ships preloaded devices requires physical inspection or preserved images of the storage media. Sellers can obfuscate by changing packaging or shipping blank hardware with instructions for buyers to download ROMs.
2. Jurisdictional fragmentation
   • Many manufacturers and preloading operations operate overseas. U.S. enforcement tools have limited reach. The Notorious Markets List can mobilize foreign customs and platform partners, but coordinated action depends on diplomatic relationships and local laws.
3. Split shipments and remanufacturing
   • Some operations ship blank devices and preloaded cards separately, or ship preloaded cards from third-party suppliers. Tracking the origin of preloaded content across supply chains demands cooperation among carriers, fulfillment centers and payment services.
4. Marketplace enforcement limitations
   • Marketplaces must balance rapid seller response with avoiding false positives that harm legitimate sellers. Automated systems struggle to identify preloaded libraries when sellers hide content in product descriptions or rely on user reviews as proof.
5. Consumer confusion and defense claims
   • Sellers often assert that devices are intended for homebrew, backups or legal use. That defense gains traction when manufacturers provide open development platforms. Distinguishing lawful use from commercial-scale piracy requires nuance.
6. Preservation and research exemptions
   • Some retro hardware and game communities emphasize preservation. Enforcement that sweeps too broadly could hamper legitimate archiving and scholarly work. Crafting policy that targets commercial scale piracy without chilling preservation requires careful thresholds.
7. Economic incentives and quick replacement
   • Bad actors can rapidly recreate storefronts, switch marketplaces or move to direct sales channels. Persistent suspension of seller networks is necessary to counter that dynamic.

These barriers mean that inclusion on the Notorious Markets List is a starting point, not an automatic fix. Sustained, multi-jurisdictional enforcement and cooperation across private intermediaries are needed to disrupt commercial-scale piracy.

Impact on legitimate retro markets, preservation and homebrew communities

Efforts to curb preloaded devices affect more than infringers. Several legitimate activities intersect with emulation and retro hardware.

Licensed retro products

• Companies such as Nintendo and Atari have released officially licensed retro consoles and compilations that bundle classic titles under license. These products exist alongside third-party hardware vendors who build devices compatible with emulation frontends.

Specialist hardware and collectors

• Firms like Analogue, Evercade and others produce high-end devices focused on accuracy, licensed releases or cartridge-based collections that emphasize legal provenance and preservation. Consumers who value authenticity and licensing buy these options despite higher prices.

Homebrew and preservation

• The retro community includes developers who create homebrew games and enthusiasts who archive software for preservation. Emulation toolchains are essential to these activities. Policies must avoid criminalizing legitimate preservation and noncommercial archiving.

Small businesses and niche retailers

• Some independent sellers curate retro experiences by packaging hardware with legally acquired compilations or facilitating community-driven boutique releases. Heavy-handed platform moderation could disproportionately impact these sellers.

Balancing enforcement with legitimate uses requires clear rules:

• Enforcement should target commercial operations that distribute unauthorized copies at scale.
• Criteria should differentiate devices shipped blank or with licensed content from those intentionally marketed around preinstalled pirated libraries.
• Platforms and customs ought to work with rights holders to develop transparent evidentiary standards and appeal mechanisms.

A misapplied regime could push legitimate actors into compliance costs that stifle small innovators and preservationists. Policymakers must calibrate deterrents to hit large-scale infringers while preserving lawful activity.

Marketplace responsibility and precedents for action

Online marketplaces, payment processors and ad networks play crucial roles in the lifecycle of preloaded handhelds. The ESA’s proposed steps primarily aim at these intermediaries.

What platforms can do:

• Enhanced listing review: Require sellers advertising recognizable titles or screenshots to submit licensing documentation or proof that included storage is blank at sale.
• Seller verification: Implement stricter onboarding and verification for sellers in high-risk categories.
• Repeat-offender policies: Track linked storefronts and suspend networks of sellers rather than individual listings.
• Payment and ad restrictions: Deny payment processing and ad services to sellers who repeatedly list infringing items.
• Marketplace takedowns: Use explicit rules about preloaded content to remove listings and block re-listings.

Precedents exist in other sectors. Platforms have removed counterfeit luxury goods or unauthorized streaming devices after industry pressure. Payment processors have severed ties with sellers of counterfeit goods or services. Unlike simple product mislabeling, preloaded games create a stronger justification for action because they involve third-party IP.

However, platforms often require clear, provable claims to act. The ESA’s call for preservation of seller, payment and shipment records is meant to make such proof easier for investigations. Marketplaces that adopt proactive measures can reduce the downstream workload for rights holders and limit consumer exposure to illegal or insecure devices.

Consumer risks beyond copyright infringement

Selling preloaded handhelds has harms that extend past lost sales. Consumers can face:

Security and privacy risks

• Malware and compromised firmware: Unvetted software builds can introduce malware, spyware or backdoors.
• Data leakage: Unsecured network features or telemetry could expose user information.
• Poor quality controls: Cheap hardware can overheat, suffer battery issues or fail safety certifications.

False advertising and consumer protection

• Misleading claims about legality or the origin of games can prompt consumer complaints and returns.
• Warranty issues become complex when devices are modified or include unauthorized content.

Support and updates

• Unofficial firmware and emulators may lack updates or community support, leaving consumers with unsupported devices after purchase.

Health and safety

• Low-quality batteries or chargers may pose fire or injury risks. Consumers assume hardware sold on major marketplaces conforms to safety standards; counterfeit devices can violate those expectations.

Highlighting these risks strengthens the case for platform intervention on consumer protection grounds, in addition to intellectual property claims. Regulators can enforce consumer-safety standards while rights holders pursue IP enforcement.

Customs, export controls and international coordination

Customs enforcement offers a practical chokepoint for preloaded devices, but it requires intelligence and coordination.

Targeting shipments

• Customs officers can inspect shipments for preloaded storage media, particularly when documentation or markings indicate high-risk goods.
• Advanced data analytics and coordination with rights holders can identify suspicious consignments and flag shipments for physical inspection.

Challenges in customs work

• Many suspicious shipments are declared as generic "electronics" or "toys," obscuring their content.
• Small-value shipments are often less scrutinized, yet these carry high cumulative volumes.
• Preloaded microSD cards can be tucked inside packaging or shipped separately in low-declaration-value parcels.

International cooperation

• Because much manufacturing and preloading occurs outside the U.S., customs action depends on partner countries’ willingness to inspect, seize and prosecute.
• The Notorious Markets List can prompt governments to prioritize inspections or adopt stronger penalties, but outcomes vary by jurisdiction.

Examples from other industries

• Customs seizures of counterfeit luxury goods and counterfeit electronics show the potential of targeted inspections. When brands provide clear product identifiers, customs can more easily intercept fakes.

For customs to be effective against preloaded devices, rights holders need to supply identification markers, manifests and intelligence about manufacturing patterns. Freight companies may also play a role by refusing to transport shipments known to carry illicit goods.

Policy considerations and paths for balanced regulation

The ESA’s nomination raises policy trade-offs. Authorities must weigh the rights of publishers against preservation, consumer protection and innovation. Policy options include:

Clear evidentiary thresholds

• Define the commercial-scale threshold for enforcement: number of titles, preloading patterns, or revenue markers that distinguish hobbyist modification from organized distribution.

Certification and labeling

• Establish voluntary or enforced labeling standards for devices: “shipped blank” certification, “licensed content included” disclosure, and penalties for false claims.

Safe harbors for preservation

• Carve narrow exemptions or safe-harbor pathways for nonprofit preservation and scholarly activities, with strict limits to prevent commercial exploitation.

Marketplace and payment standards

• Encourage marketplaces and payment services to adopt uniform requirements for listings that advertise specific copyrighted titles, including proactive checks and rapid takedown procedures.

Cross-border cooperation

• Use the Notorious Markets List to develop bilateral or multilateral enforcement agreements focused on supply chains, customs screening, and fulfilling preservation-friendly exceptions.

Public education

• Inform consumers about the legal status of preloaded content, the risks of illicit devices, and the value of purchasing licensed retro products for long-term preservation and quality.

Liability frameworks

• Clarify the liability of manufacturers and intermediaries who knowingly sell devices with preloaded unauthorized content, while protecting legitimate hardware producers who ship blank or licensed units.

Designing policies along these lines can protect rights holders while preserving lawful emulation, hobbyist activity and archival work. Practical regulation should be narrow, evidence-based and cooperative.

Likely outcomes and how stakeholders are positioned

If the USTR includes preloaded retro handhelds on the Notorious Markets List, expect a sequence of responses:

Immediate effects

• Platforms will face renewed pressure to act. Some marketplaces may rush to tighten listing requirements or flag categories for manual review.
• Payment processors and ad networks may reevaluate their exposure to sellers promoting preinstalled libraries.

Medium-term effects

• Customs agencies may implement targeted inspections and request intelligence from rights holders.
• Manufacturers with strong supply chains and partnerships could market “clean” or licensed devices more aggressively.
• Sellers who rely on preloaded libraries will adapt by shifting channels, obfuscating origin details or attempting to sell devices as “blank.”

Longer-term effects

• Sustained enforcement could shrink the commercial market for preloaded illicit devices, but persistent underground channels will likely remain.
• Legitimate retro hardware suppliers and boutique publishers may gain market share by emphasizing licensing, authenticity and safety.
• Preservationists and homebrew communities will lobby for clearer exemptions to avoid collateral damage.

Stakeholders’ positions:

• Rights holders: Advocate strict action to protect revenue, brand integrity and the value of licensed re-releases.
• Manufacturers: Some will resist designation and emphasize valid uses; others may alter business practices to avoid reputational and operational risk.
• Marketplaces: Balance user trust with seller protection; aggressive platform responses carry false-positive risks.
• Consumers: Many will remain indifferent so long as convenience stays high; others will prefer licensed alternatives when safety, support and authenticity matter.
• Preservationists: Concerned about overbroad enforcement; will push for narrow exemptions.

Overall, designation would not eradicate piracy but would elevate enforcement momentum and change economic calculations for sellers and intermediaries.

Case analogies: how other industries handled similar challenges

Several industries offer instructive analogies for tackling hardware-enabled piracy.

Streaming and set-top boxes

• Devices marketed to access pirated streaming channels prompted takedowns and retailer bans in multiple jurisdictions. Enforcement combined legal action against sellers with pressure on payment providers and platforms.

Counterfeit consumer goods

• Luxury and apparel industries have long used customs seizures and platform takedowns. Rights holders worked with marketplaces to adopt verification programs and brand-protection tools.

Game keys and gray-market key resellers

• Marketplaces selling unauthorized or questionable activation keys prompted publisher action and new platform policies limiting key reselling and enforcing provenance checks.

From these examples, two lessons stand out:

• Multi-pronged approaches are most effective: legal actions, marketplace policies, payment processor engagement and customs enforcement.
• Industry cooperation with platforms and customs is key; public pressure alone rarely suffices.

What consumers and small retailers should watch for

Consumers and small retailers should be mindful of developments that could affect availability, pricing and legal exposure.

For consumers:

• Expect some listings to vanish or change in the short term as marketplaces tighten rules.
• Consider the risks of purchasing devices that promise large preloaded libraries: legal uncertainty, lack of support and potential safety issues.
• Seek reputable sources: licensed mini-consoles, boutique publishers, or hardware vendors that clearly document licensing.

For small retailers:

• Verify the provenance of devices and storage media before listing.
• Maintain records that can demonstrate devices were shipped blank or with licensed content.
• Watch for marketplace policy changes and update storefront practices to avoid suspension.

Retailers who proactively align with rights holders and platform rules reduce legal and business risk.

Toward practical next steps for policymakers and industry

Policy responses should aim at measurable outcomes. Possible next steps:

For policymakers:

• Encourage clear guidance for customs and law enforcement on identifying preloaded media.
• Facilitate multilateral agreements to target upstream preloading operations.
• Create standards for evidence preservation and sharing between authorities and rights holders.

For marketplaces and payment processors:

• Deploy targeted measures: enhanced vetting for sellers in the retro hardware category, repeat-offender tracking, and a requirement that claims of included titles be substantiated.
• Work with rights holders to build verification programs for licensed devices and compilations.

For manufacturers and distributors:

• Adopt transparent practices: ship blank storage by default, label units that include licensed content, and implement contractual restrictions on resellers’ preloading.
• Offer certified licensed bundles as a legitimate product line to capture demand that piracy currently addresses.

For rights holders:

• Prioritize evidence collection and work with platforms to develop efficient takedown and verification workflows.
• Consider licensing strategies that make legitimate retro offerings more attractive: affordable compilations, subscription access to legacy catalogs, or curated reissues.

Cooperation across stakeholders will prove more effective than unilateral pressure.

FAQ

Q: What is the Notorious Markets List and can it force action? A: The Notorious Markets List is an annual USTR report naming markets—online and physical—that facilitate piracy or counterfeiting. It does not impose legal penalties, but it leverages diplomatic and reputational pressure to prompt enforcement actions by governments, marketplaces, customs and service providers.

Q: Are emulators and emulation devices illegal? A: Emulation software itself is legal. Distributing copyrighted game ROMs without authorization is illegal. Devices shipped blank or used to run legally obtained or homebrew software are lawful; devices sold primarily because they include preloaded unauthorized ROMs present a different legal posture and commercial risk.

Q: If a device is sold with a microSD card preloaded, who is liable? A: Liability depends on the facts. Sellers and distributors who knowingly ship preloaded unauthorized content can be held responsible. Manufacturers that intentionally supply preloaded media may also face action. Determining liability requires evidence of knowledge, intent and commercial distribution.

Q: Why single out Anbernic and other manufacturers? A: The ESA singled out Anbernic as an example of a brand whose devices are commonly offered with preloaded, unauthorized libraries. Being nominated does not automatically prove wrongdoing; it signals the rights holders’ concerns and invites scrutiny by authorities and intermediaries.

Q: Will this crackdown affect preservation efforts and homebrew developers? A: Properly tailored enforcement targets commercial-scale distribution of unauthorized copyrighted content. Preservationists and homebrew communities can be protected through narrow exemptions and clear evidentiary thresholds. Policymakers and industry should coordinate to ensure legitimate archival work is not unduly restricted.

Q: How will marketplaces respond? A: Marketplaces may tighten listing rules, require seller documentation for claims about included titles, implement repeat-offender suspensions, and cooperate with rights holders to identify patterns. Responses will vary by platform and region.

Q: What can consumers do if they bought a preloaded device? A: Consumers should be cautious about using and sharing copyrighted content they do not own. Repair or modification for personal use may be lawful in some jurisdictions, but distributing unauthorized ROMs is illegal. For safety, buyers should verify hardware quality and avoid suspicious firmware updates.

Q: Could the Notorious Markets designation stop piracy? A: No single measure will eliminate piracy. A Notorious Markets designation makes enforcement easier, raises platform accountability and can disrupt commercial operations, but determined infringers may adapt. Sustained, coordinated action across customs, platforms, payment systems and logistics is necessary to materially reduce large-scale piracy.

Q: How might manufacturers avoid being targeted? A: Manufacturers can ship devices with blank storage, explicitly label any included licensed content, require distributors to sign attestations about preloading, cooperate with rights holders, and offer legitimate licensed compilations or partnerships to capture demand.

Q: What are realistic expectations for the USTR’s decision timeline? A: The Notorious Markets process is annual. After nominations and public comments are collected, the USTR compiles its report. If preloaded handhelds gain inclusion, expect immediate industry reactions and an uptick in enforcement activity over the following months.

Q: Could this lead to stricter laws? A: The Notorious Markets List itself is a reporting mechanism. However, its findings can catalyze legislative attention, encourage stricter customs inspections, or prompt regulatory changes at the platform level. Lawmakers may consider new statutes or amendments if the problem is shown to have significant economic or consumer-safety impacts.

Q: Where can small businesses and preservationists voice concerns? A: Stakeholders can submit comments to the USTR during the nomination and comment period. Engaging directly with rights holders, platform policy teams and lawmakers, and participating in industry consultations, are practical ways to shape balanced outcomes.

Q: Are there examples of successful platform cooperation against similar issues? A: Yes. Other industries—luxury goods, streaming devices, and unauthorized key resellers—have achieved partial successes through combined platform takedowns, payment restrictions and customs seizures. Those precedents demonstrate the value of coordinated action rather than reliance on unilateral takedowns.

Q: What should a consumer look for when choosing retro hardware? A: Seek clear labeling about included content, verify whether the device ships with licensed software, review seller reputation, and favor vendors that document licensing or ship blank storage by default. Consider safety certifications and warranty terms as indicators of responsible manufacturing.

Q: Could the price of legitimate retro hardware increase? A: Market adjustments are possible. If enforcement reduces illicit competition, licensed or higher-quality devices may become relatively more expensive, but supply-side adaptations—such as more affordable licensed compilations or subscription offerings—could mitigate price effects.

Q: How can preservation communities participate in shaping policy? A: Preservation stakeholders should document their activities, propose limited exemptions or safe harbors, engage with rights holders to establish archival access agreements, and submit detailed evidence during public comment periods to distinguish lawful archival work from commercial piracy.

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The ESA’s nomination raises a clear policy choice: how to confront a modern form of hardware-enabled piracy while preserving the legitimate functions of emulation and retro culture. The Notorious Markets List can be a lever to mobilize enforcement, but the response must be precise. Targeting commercial networks that manufacture, preload and distribute large-scale unauthorized libraries will protect revenues and consumer safety. At the same time, policymakers and platforms must build safeguards for legitimate preservation, homebrew innovation, and small businesses that rely on lawful retro activity. Successful outcomes will rest on evidence-based enforcement, international cooperation, and industry practices that make lawful retro gaming both visible and accessible.