One Filing in the Games Industry's Own Docket Says Customs Cannot See a Preload

SEO Title: The docket says customs cannot see a preload

Excerpt: The game industry asked Washington to treat preloaded handhelds as a border problem. In the same 57-comment docket, the one filing that describes how a preload actually reaches a port says a border officer cannot detect it — and "piracy devices," the term doing the work, was already defined there as a television box.

The USTR's 2026 Notorious Markets docket holds 57 comments. The game industry's is one of them, and it is the one that asks for a border remedy: "improve customs targeting for devices and components associated with preloading operations."

Another filing in the same docket describes how a preloaded device actually reaches a port. It is written by a pay-television operator, about a different product, and it says the opposite thing:

"Where preinstallation occurs after import, the devices may present as unremarkable consumer electronics at the point of entry, which complicates detection by customs and other authorities."

That is USTR-2026-0529-0016, from Simpletv, a Venezuelan pay-TV company, filed on 7 October 2026, section VII, "Hardware Supply Chain and Distribution Architecture." It is six sentences long and it is, as far as I can establish, the only place in this docket where anyone explains what a customs officer would have to do.

The rest of the docket argues about counterfeits.

I downloaded all 57 comments. Fifty-two produced machine-readable text — roughly 2.6 million characters from rights holders, platforms, governments and trade associations. In those fifty-two filings the phrase "memory card" appears in exactly one: the Entertainment Software Association's, which needs it, because the card is the entire alleged violation.

The word "handheld" appears in three. "Anbernic" appears in two, and the second is the ESA's own coalition restating the claim without the mechanism.

That gap is the story, and it is not a quibble about vocabulary. The game industry has asked the United States government to police a class of hardware on the strength of what is stored on a removable card. The record it built to support that ask contains almost no account of the card, and its own most detailed passage on the subject is a warning that the border is the wrong place to look.

What the census shows

OBSERVED FACT. These counts come from regular expressions over pdftotext output for every docket attachment that yielded text. Two filings — a Polish VOD operator's rebuttal and the Philippine Intellectual Property Office's rebuttal — were image-only PDFs and were read by OCR; neither mentions gaming hardware. Four docket entries have no downloadable attachment and are excluded; their titles identify two anonymous submissions, one individual and a duplicate Temu filing. The regexes and the per-filing table are saved with this article's evidence corpus.

The three filings that say "handheld" are the ESA's, the U.S. Chamber of Commerce's and the International Intellectual Property Alliance's. The Chamber's use is a single clause inside a list — "from luxury goods to automotive components, to video game plug-and-play consoles and handheld devices" — which shows how quickly the framing travelled and how little travelled with it.

INFERENCE. This docket's vocabulary is counterfeiting vocabulary. "Superfake" is a trademark concept: a good so convincing it defeats the brand owner's own authentication test. Twenty-six filings use it. The ESA's allegation is a copyright allegation about file contents, and the words for that barely appear. That is not proof anyone was misled. It is a measurement of what the argument was about.

The term already had an owner

The Motion Picture Association filed in the same docket, on the same day, at comment USTR-2026-0529-0018. Its definition is not ambiguous:

"Piracy devices—also known as illicit streaming devices (ISDs)—and piracy apps provide illegal access to movie and television content through a variety of means, including downloading and streaming content and unauthorized streaming of live television and sporting events on a user's choice of devices, including televisions."

The MPA's list of "piracy devices and apps of focus" runs to set-top boxes and IPTV subscriptions — EVPAD, Gogo/Orca, Spider Receiver. The harm described is unlicensed carriage of film and television. Nothing in it is a game console.

OBSERVED FACT. In this docket, "piracy devices" denotes illicit streaming devices for audiovisual content, and the MPA says so in terms. The ESA borrowed the heading — "A. Piracy Devices" — and placed a retro handheld under it.

The borrowing is not cosmetic. An illicit streaming device and a preloaded handheld fail at different points, and the difference is the whole enforcement question: one streams, the other stores; one needs a network, the other needs a card; one can be tested by plugging it in, the other has to be opened, powered and read.

The one filing that separates the device from the act

Section VII of Simpletv's submission is the only document in the docket that draws the line the ESA's remedy has to cross:

"The hardware itself, generic TV boxes and smart televisions, is lawful. The infringing conduct arises from the preinstallation of pirate applications and the unauthorized retransmission those applications enable, which may occur at points in the distribution chain after manufacture."

Then, two sentences later:

"Preloading at the retail point of sale removes the final friction in the consumer acquisition path."

OBSERVED FACT. These are verbatim quotations from a filing by a company on the rights-holder side of the same argument, describing the same class of product the ESA describes — generic hardware plus a preloaded library — and locating the infringing act after import and, in its retail example, at the point of sale.

INFERENCE. If the preload happens after the border, a border rule cannot find it. An officer inspecting a container of handhelds sees moulded plastic, a screen and a battery. The card may be blank. It may sit in a separate carton. It may be inserted by a warehouse or a seller the shipper has never met. The ESA half-concedes this when it asks for governments to "inspect bundled and separately shipped storage media" — an inspection regime, which is a much larger ask than targeting, and a different one.

The ESA's own theory is not the retail theory. It says devices are "routinely offered or shipped with removable memory cards preloaded," which places the load at source. Both models exist in this market. The nomination assumes one of them, and the remedy only works on that one.

The precedents are domestic seizures

The filing offers two enforcement examples, and both describe where the chokepoint actually sits.

The first: in 2024 the Italian Guardia di Finanza, based in Turin, "seized around 12,000 Anbernic devices, containing more than 47 million copies of pirated video games."

The second, cited as the model for cross-border cooperation, is the June 2026 Argentine operation in which authorities working with LaLiga, DirecTV, Alianza and ENACOM "seized nearly 10,000 modified TV boxes preloaded with pirate applications" and "identified eight suspects accused of supplying the local market with devices brought directly from China and Paraguay." Mercado Libre cites the same operation in its own filing as evidence of platform cooperation.

INFERENCE. Twelve thousand devices seized in Turin were in Italy. Ten thousand boxes seized in Argentina were in Argentina, inside a distribution network with named suspects. Neither is a border interception. Both are a state reaching goods that had already entered and were being sold. The record's own evidence base shows this trade being caught downstream — at the warehouse and at the listing — not at the port.

SPECULATION, flagged. A targeting rule might still raise the cost of the factory-preload model enough to matter even if it intercepted few shipments. Nothing in the docket tests that proposition.

Fourteen marketplaces filed. None named the device.

The rebuttal round is where the platforms answered. The notice that opened the docket was published in August 2026; the rebuttals arrived on 22 October 2026 — two months later — and include submissions from Amazon, Alibaba International Digital Commerce Group, Taobao and Tmall Group, Pinduoduo, DHgate, Whaleco (Temu), Shopee, Mercado Libre, Coupang, Tokopedia, SHEIN, TikTok, Douyin and IndiaMART — fourteen marketplace operators, several filing more than once. Temu's is titled, plainly, "Rebuttal Comments."

Across that set: "Anbernic" zero. "Handheld" zero. "Memory card" zero.

What the marketplaces wrote about is trademarks and takedowns — 364 uses of "takedown" across 43 filings, 229 of "removal" across 41. Amazon's submission is a case study in what that cooperation looks like when it works, and who it works for:

"in 2025, CCU and Nintendo spearheaded an investigation in Long Island, New York that disrupted a sophisticated counterfeiting ring operating multiple fraudulent Amazon seller accounts... local law enforcement... executed a raid that led to the seizure of counterfeit Nintendo gaming accessories and the arrest of two individuals on felony charges of trademark counterfeiting."

That is the machine that produces raids: a brand owner, a platform, a counterfeit trademark, a police force. A generic handheld holding an unlicensed library has no counterfeit mark to report. The trademark apparatus Amazon and Nintendo have built has no hook for it — which is precisely why the ESA is arguing that the device itself should be the violation.

DHgate, the marketplace most closely associated with this trade, filed a submission of roughly 100,000 characters and a rebuttal. Its headline governance fact is a hire: in January 2025 it appointed Marc Miller, whose prior roles in DHgate's own words include "the International AntiCounterfeiting Coalition (IACC), the Motion Picture Association, and Nintendo," as Senior Vice President of Intellectual Property Protection.

OBSERVED FACT. DHgate states the appointment and the prior employers. INFERENCE. The platform with the deepest exposure to preloaded-device listings has hired the enforcement background most specific to them. What that has changed in listing volume is not disclosed in the filing.

Two explanations that would weaken this

Alternative one: the silence is jurisdictional, not evasive. The marketplaces were answering nominations of themselves, and none was accused of hosting Anbernic. On that reading, ignoring a handheld claim is rational — it is not their case to answer. That is a real limit on what the census shows, and it is why the finding here is about what the record contains, not about what the platforms believe.

Alternative two: the ESA is right that the preload is at source. Anbernic's marketplace listings advertise capacity directly — "64G Preloaded 5000+ Games" is a standard listing string — and the ESA says the devices ship that way. If most units leave the factory loaded, the retail-preload argument is a minority case, and a border rule aims at the right link even if it is hard to execute. I could not settle the split from public records, and the ESA does not offer one. That is the single most important unresolved fact here.

What the record supports

OBSERVED: a docket of 57 comments in which the game industry's central hardware allegation is stated once, restated once by its own coalition — IIPA, on 20 October, repeating that the devices "sold in online markets like Anbernic" conceal "numerous unauthorized copies" without mentioning the card — and engaged with technically by nobody except a Venezuelan pay-TV operator making the opposite point about a different product.

INFERENCE: the industry is asking for a border remedy for conduct its own docket places, in the retail case, after the border — against hardware that the docket's most careful passage calls lawful in itself. The ask is coherent only if preloading is a factory act, and the record does not establish that it is.

SPECULATION: that USTR acts on the device framing at all. The Notorious Markets List is advisory. It names markets, not products, and its usual output is a paragraph in a winter report.

Why it is not a technicality

If "devices and components" becomes the unit of enforcement, the thing being policed stops being a file and starts being a console. That matters past Anbernic. The same equipment-authorisation register that recorded 29 console and handheld certifications in 2026 shows a category more than a dozen companies deep, most of them filing under grantee codes that change with every model. A rule aimed at devices needs a way to tell one device from another at a frontier. A rule aimed at listings needs a platform to look at what is on a card.

The record contains a detailed description of the second approach and one clause requesting the first. Fifty-two filings, one memory card.

Confidence

Sources

• ESA comment, USTR-2026-0529-0010 (7 October 2026) — "A. Piracy Devices," the seven remedies, the Turin seizure, the "superfakes" framing.
• Motion Picture Association comment, USTR-2026-0529-0018 — "Piracy devices—also known as illicit streaming devices (ISDs)."
• Simpletv (Galaxy Entertainment de Venezuela) comment, USTR-2026-0529-0016 — section VII, "Hardware Supply Chain and Distribution Architecture."
• IIPA comment, USTR-2026-0529-0034 (20 October 2026) — restatement of the handheld claim; membership list.
• U.S. Chamber of Commerce comment, USTR-2026-0529-0006 — "superfakes... to video game plug-and-play consoles and handheld devices."
• Amazon comment, USTR-2026-0529-0025 — the 2025 CCU/Nintendo Long Island investigation.
• DHgate Group comment, USTR-2026-0529-0022 — Marc Miller appointment and prior roles.
• Whaleco (Temu) rebuttal, USTR-2026-0529-0050 — "Rebuttal Comments."
• Mercado Libre comment, USTR-2026-0529-0040 — the June 2026 Argentine TV-box operation.
• Federal Register notice (26 August 2026) — the comment request that opened the docket.
• Regulations.gov docket USTR-2026-0529 — full comment list.