Not really. It would appear to be so to some, but really nV is using their run-time compiler to work things again.
But like I said before the recent patch proves that the run-time compiller can't handle the code natively without help, it needs to be told how to handle each situation it encounters (meaning optimizing the forceware for each new game you want out). Now what nV is doing IS in violation of FutureMArks guidelines, but in this case it is something that would be benificial in games without image quality differences (WUSY, Aanad is far from an objective source, he didn't even do serious image quality comparisons like Digit Life did [there ARE some differences on both cards, especially Halo issues with nV {like missing panel lights in hallways}]).
However for the sake of a benchmark that will show you how well you card handles un optimized/floptimized code, FM is correct, nV shouldn't do that, because this is how their cards will react to new games that haven't been 'adapted' for in the forceware drivers for the run-time compiler. So in a way it is cheating, but definitely not the kind we had earlier in the year.
This kind of cheating is simply more akin to what nV <i>NEEDS</i> to do in the real world to get their hardware eunning at equal speed and performance to the ATIs. In the 'real world' this isn't cheating this is (as we have seen of late) valid opitimzation. The question is whether 3Dmk can still in any way be representative of gaming and be a valid benchmark for the 'know-nothing' masses that don't understand how it can be manipulated. If it was only a test for driver differences for the same rig, no one would care, it's the dollars that are behind it all that make it such a tough issue. What nV does with it's run time compiller gives the end user a similar experience to that of ATI users. It may not be elegant, but it does seem to work well enough for most of the IQ and Performance issue/debates to have calmed down somewhat.
I have to side with FM because it is their Benchmark and they should be able to decide how it's used/applied, but really what nV is currently doing bears no resemblance to their previous exploits. This is very much like ATI's 'cheating' earlier this year (at the same time as nV), the switching of the order the code was handled in giving better performance and equal IQ seemed rather mild to me at the time (and still does), and to me the focus should be on whether all the work is still being done with the exact same IQ result (the most important thing IMO). However I think FM and nV will lock horns for a while. FM could patch 3Dmk03 again, and then the next driver release we'd be back to the same thing. If 3Dmk03 held no place, no one would care, and we all benifit when it works well in the games we play.
If think this issue has a little further to go before it is truely decided one way or another. I'm no where near as angry about this than the previous issues. The just don't seem similar at all, other than the main players in the continuing drama.
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