I think there's a lot of gray, here. You can't exactly go out and buy a SNES at Best Buy anymore, but they are abundant on eBay. I think it's great that a "new" SNES game is coming out, but it was available for so long emulated, apparently.
What if the maker of Slender: The Eight Pages decided to make a boxed copy of the game? Would that then make those who download the game after that pirates? I don't know. My gut tells me "no" because the developer needs to have enough sense to understand their game's distribution themselves.
I don't think it's as cut and dry as Kuchera makes it seem. Yes, people should be payed for their time (provided that time is worth something to someone) but the makers of the cart have to know that their game has been emulated for years. This is knowledge they absolutely had. I think Kuchera is fighting someone else's battle, even though they didn't ask him to. They probably knew this already, and the cart is for pretty small market. A collector's item, maybe.

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