ESA asks USTR to list Anbernic as notorious piracy market

The Entertainment Software Association (ESA) has submitted a request to the U.S. Trade Representative (USTR) to add Chinese hardware manufacturer Anbernic to its list of "Notorious Markets." The ESA, a trade group representing major publishers including Nintendo, Microsoft, PlayStation, Amazon, Epic, EA, and Ubisoft, argues that Anbernic devices facilitate substantial copyright piracy.

The "Superfake" Designation

The ESA’s complaint centers on the distribution of Anbernic’s handheld Android gaming devices. According to the ESA, these devices "are routinely offered or shipped with removable memory cards preloaded with hundreds or thousands of unauthorized copies of copyright-protected video games published by ESA members."

The trade group contends that selling these devices through "normal retail channels" helps to "normalize hardware-based piracy by delivering illicit catalogues through a polished consumer product." The ESA argues this practice meets the threshold for a "superfake," a designation the group describes as applying to "high-quality counterfeit trademark goods … on a commercial scale."

While Ars Technica notes that Anbernic does not appear to ship ROM-filled SD cards when selling directly from its own website, the ESA focuses on the broader retail ecosystem. The request highlights how third-party sellers on platforms like Amazon and eBay, as well as social media advertisers, often bundle these devices with preloaded libraries of unauthorized games.

Potential Consequences

Inclusion on the USTR’s Notorious Market List does not carry immediate direct legal penalties for a company. However, the USTR states that the list "encourages the responsible authorities to step up efforts to combat piracy and counterfeiting." The agency notes that the list also "increase[s] public awareness and help market operators and governments prioritize intellectual property enforcement efforts that protect American businesses and their workers."

The ESA’s request was submitted last week. If the USTR acts on the request, it could potentially lead to a Section 301 investigation. Such an investigation could result in legal consequences or restrictive import controls on the devices.

Industry Context

This move challenges the long-standing distinction between hardware manufacturers and software distributors in the emulation market. Historically, hardware sellers and emulator developers disavowed knowledge of copyrighted ROMs to maintain legal legitimacy. However, the ESA argues that the current market reality, where devices are marketed with "thousands of games" ready to play, constitutes a different category of infringement.

Ars Technica observes that focusing on Anbernic, which manufactures the hardware, is an "odd choice" when centralized e-commerce sites could potentially do more to prevent the advertising and sale of illegal ROMs. The ESA’s action signals a broader effort to address the normalization of piracy through consumer hardware.

---

Sources

• arstechnica.com: ESA targets Anbernic emulation handhelds as "superfake" piracy enablers - Ars Technica
• gamedev.net: ESA targets Anbernic emulation handhelds as "superfake" piracy enablers | GameDev.net

This article was drafted with AI assistance and checked against the sources above. Company claims are reported as claims. Cover image is AI-generated.