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Analogue is making a 4K Nintendo 64
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this post was submitted on 16 Oct 2023
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What do you mean by instruction set? As far as I remember, Analogue physically looks at the chips under microscopes and recreates that physical design via FPGA (This is because the patents have expired, which is different from copywrite). You could be talking about bios (which I know of the Pocket, for example, they used their own, which included skipping the "Gameboy" animation when you first power on.), Analogue can just write their own BIOS that gets around it. (BIOS would be software, and thus classified under copywrite, instead of patent.)
I'm being loose with terminology, I apologize. I mean the specific microarchitecture, as in the specific implementation of the instruction set. Just like photocopying an entire book goes beyond fair use, so could duplicating the microarchitecture verbatim.
I don't know the case law here (not a lawyer), but I think ISAs can't be copyrighted because they're an API (which is similar to Google vs Oracle), but I could see Nintendo having a case if they're duplicating the microarchitecture directly. Emulators are fine because they're doing a clean room implementation of the ISA, but directly pulling the gates from the chips could go a step too far and constitute a derivative work.
If Nintendo was going to do something they would of done it years ago when analogue released a Nes, Snes, and Gameboy FPGA console.
If you look at Nintendo's lawsuits, they're mostly centered around their video game IPs. They'll target ROM sites, streamers playing their games, and modders. Sometimes they'll go after emulators of modern consoles, but only if it's an open and shut case.
That doesn't mean Nintendo can't or won't go after them, it just means they haven't. I wouldn't feel comfortable running or investing in a company like this without Nintendo approval in writing.