At the Penny Arcade Expo, North America’s largest public games event, the Nintendo DS is as ubiquitous as the cell phone. You can find attendees playing them everywhere – at beanbag lounges, in lines for food, even while sitting down in standing-room concert crowds.

This cross-section of avid gamers – a sharp contrast to the kids-and-moms demographic that Nintendo has staked out since the Wii’s rise – has almost unanimously chosen Nintendo’s portable as common ground. But it’s no surprise that old-school gamers remain fond of Nintendo, even in the era of Nintendogs and Brain Age.

What’s more shocking is the other source of common ground among these DS owners: flash carts. They’re the iPods of video games, letting DS owners transfer downloaded games and programs from their computers onto their handheld devices. Unlike the iPod, however, there’s no official, legal iTunes equivalent for flash carts.

An informal survey of PAX 2008 attendees found one flash cart in every four systems, and while the survey counted only 100 attendees, evidence supports the widespread ownership and use of DS flash carts among hardcore gamers. They’re cheap, simple to use, easy to find and able to run almost all DS games.

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If gaming history is any indication, this sort of rampant piracy should have doomed the portable system to an early death. Instead the opposite has happened, and surprisingly it’s no accident. The story, then, isn’t the piracy; it’s Nintendo’s unique way of dealing with it and the companies left in the cold as a result.

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DS flash carts are unofficial products, cheaply produced by semi-anonymous developers in Asia. Yet this illicit industry is efficient, pumping out glitch-free products in mass quantities. How’d this happen?

Nintendo’s longtime indifference is partly to blame. In the Game Boy Advance era, leftover “development” cartridges from the older Game Boy Color were hacked to work on the newer device. While far from an ideal option – these rigs ran slowly and poorly – they were cheap and simple enough to get the hacking ball rolling.

It didn’t take long for enterprising flash cart programmers to work out the kinks. Nevertheless, their product – priced a bit too high, sold by too few distributors – never broke through to the mainstream. With the DS’s impending release, these old carts might have merely vanished as a niche interest for hackers and pirates. But somehow the old carts worked fine on the DS. Before long, hackers found a major loophole: The DS could retrieve GBA data from a flash cart, essentially giving hackers a two-year head start. As a result, DS flash carts became sophisticated very quickly.

To use flash carts like the R4 or SuperCard, no modding, soldering or risky installs are necessary. Even buying them is relatively painless, thanks to a number of international web resellers and protected PayPal orders. Through a home computer, users drag-and-drop games and programs onto a microSD card, which fits into the flash cart. Plug that into one of the DS’s cartridge slots, and you’re able to navigate to your data through a touch-screen menu.

Flash carts are advertised for their compatibility with homebrew programs (e-book readers, emulators, e-mail readers and so on). But arguably their most popular quality is nearly 100-percent compatibility with game ROMs, the raw data from a retail game cartridge. A flash-cart combo – hardware and memory – runs about $50 at most resellers. Some sites currently sell a 1 GB solution for roughly $30. At that price, a DS owner can carry over a dozen games in a single cartridge for the price of one new retail title.

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Most game consoles eventually face piracy issues, but they typically have serious barriers to entry like warranty-voiding hardware mods or online validity checks. Flash carts avoid both these hurdles, and though Nintendo openly warns against using “unauthorized devices,” flash carts do not damage or change a DS hardware unit.

The only other recent console with such a high degree of vulnerability is the Sega Dreamcast, released in North America in late 1999 and cracked by the summer of 2000. Sega went to great lengths to block CD-burning piracy with the GD-ROM, a proprietary disc that held almost double the capacity of conventional CDs. But the Dreamcast had a backdoor issue with multimedia CDs in Japan called Mil-CDs, which hackers co-opted to burn fully working game copies.

By 2000, much of the Dreamcast’s target market of 18- to 35-year-old gamers had broadband connections and CD burners, and the era of Napster and Gnutella spread pirated game copies far and wide. It’s difficult to find official figures on the number of Dreamcast pirates, and Sega had other issues like lackluster third-party support and public relations woes. But the piracy unease has been credited at least in part for the Dreamcast’s demise only a year later in favor of the better-protected PlayStation 2.

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DS piracy has likewise had a considerable impact, though measuring exact numbers again proves difficult. On one public torrent site, which caters largely to English-speaking users, the top DS download is a dual-release of Pokémon Diamond & Pearl, downloaded over 144,000 times since its April 2007 release.

That number doesn’t count private/international torrent sites, P2P services or “sharing sites.” You can easily find these depositories by Googling the phrase “DS ROMs.” These sites take advantage of file-sharing destinations like RapidShare and FilePlanet not only to upload retail ROM files but also to shift potential legal blame to other parties.

Based on those download numbers, “hundreds of thousands” is a safe estimate of flash carts sold worldwide – certainly at least 200,000 and perhaps verging toward a million or more. South Korea alone had fewer than one retail game sold per its 800,000 DS consoles as of December 2007, an indicator that DS owners there may find the bulk of their games through more questionable means.

The highest estimates of DS piracy are still table scraps compared to the handheld’s worldwide install base of over 80 million, but flash cart publicity has amplified the issue. Popular gaming sites like Joystiq and Kotaku frequently post stories about DS flash carts. Mainstream outlets have given the topic time in the spotlight as well, thanks to the popularity of carts like the R4 at major Japanese electronics stores. And Nintendo has actively pursued cart makers and resellers, sending legal success stories across the PR wire after every major bust.

Yet Nintendo still hasn’t blocked the devices. A major ROM-squashing attempt in 2007 was quickly nullified by the so-called “ARM7 fix” (named after one of the DS processors). Last month, an early leak of the hardcore fan favorite Chrono Trigger DS had a new piracy block defeated in less than 24 hours, according to flash cart information site GBATemp.net. And pirated DS games can play just fine online, because Nintendo’s Wi-Fi Connection service has never been able to sniff out flash carts.

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If a release like Pokémon Diamond & Pearl lost sales to flash carts, few would notice. Nintendo must be happy with that title’s worldwide sales of over 14 million, and most of their largest releases have broken the million-sales barrier with little incident.

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But look carefully at Nintendo’s first-party DS titles for the past few years, and a trend emerges. In 2005, when flash carts were still new, Nintendo took risks with acclaimed, hardcore-leaning titles like Meteos, Metroid Prime Pinball and Advance Wars: Dual Strike. By 2008, the number of hardcore-leaning games published by Nintendo diminished: fewer RPGs and gritty action games, more safe licenses and Touch! Generations titles that cater to older gamers and novices.

In previous generations, longtime Nintendo fans blamed the company’s “kiddie” focus for their perceived neglect. Is that the case here? A public gaming showcase like PAX says strongly otherwise, as do the sales numbers; both reflect a savvy, “hardcore” demographic that enjoys franchises like Castlevania and Final Fantasy. As with prior Nintendo consoles, third – party developers have stepped up to provide diversity for the DS’s core audience. But this time, shoppers haven’t returned the favor.

In 2008, only four DS games have risen to the NPD’s monthly top ten U.S. sales charts: Guitar Hero: On Tour, LEGO Indiana Jones, Pokémon Mystery Dungeon and Mario & Sonic at the Olympic Games. Only one of those is from Nintendo, and none had much staying power on the list. Yet the system has always been first or second in hardware sales in 2008, topping rival consoles by hundreds of thousands of units per month.

The best-performing DS game in any given month was Guitar Hero: On Tour – a rare example of a relatively piracy-safe game, though not due to crafty file protection. Rather, the game requires a proprietary add-on inserted in the GBA slot of the system.

On the other hand, take Contra 4. This November 2007 release from Konami was met with both hype and acclaim, touted as a proper follow-up to the longtime action franchise and packed with the gritty gameplay that older gamers fondly remember from the series’ early days. According to the NPD Group, the game has sold only 109,000 copies in America to date.

A hundred thousand copies is respectable, but for a top-tier title targeting the savvy gamer, it would have been reasonable to expect the game to top half a million. Here, then, that estimate of 200,000-plus flash cart owners becomes more significant – especially considering that for the last two months of 2007, four million new DS units were sold.

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To be fair, NPD stats reveal strong total DS software sales of 31 million for January through September of 2008. But when Nintendo presented these numbers in late October, it didn’t mention tie ratios or third party sales (unlike stats presented for the Wii).

In the past year, well-reviewed third-party games for the DS have been dwarfed by the sales of Nintendo’s first-party efforts, with the clear exception of Guitar Hero: On Tour. Four years into the device’s lifespan, you can no longer attribute the sales imbalance to Nintendo having a better handle on the hardware.

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Nintendo’s sluggish response to the growing popularity of flash carts has changed the potentially innovative system for the worse. The recent marketing push behind the Touch! Generations label, home to titles like Brain Age and Personal Trainer: Cooking, is no accident.

Nintendo now focuses on titles that cater to minimal-purchase DS owners – casual gamers who pick up the DS and purchase very few accompanying games. These gamers typically choose functional, multi-use games and established hits. They aren’t as likely to desire flash carts, either because they don’t want a bunch of games or they’re simply unaware that flash carts exist.

The Legend of Zelda: Phantom Hourglass, Nintendo’s last major “hardcore” DS game, sold well but nonetheless landed near the bottom of the system’s all-time top-seller list in spite of high production values and innovative new controls. Since then, Nintendo has been more successful reselling established titles and game/software concepts than developing new ones. Third party companies can only follow suit or take greater financial risks by designing and producing hardware add-ons like that of Guitar Hero: On Tour. What other choice do they have? The hardcore niche doesn’t exist beneath the mass-market boom, because it’s been sucked dry by publishers’ unease about flash carts.

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Next year, North America will be able to purchase the DSi, the system’s second major revision, featuring an SD memory slot, a game-compatible camera and a new Wi-Fi store. But the majority of the system is identical – little increased power, memory or other game-enhancing changes that might necessitate an upgrade. It’s no surprise, then, that the DSi blocks the current generation of flash carts (and is future-proofed with firmware updates).

It’s a major step toward protecting Nintendo’s third-party partners, but is it too little, too late? Eighty million DS owners – particularly all those new minimal-purchase owners – will need serious convincing to spend another $150-plus on an identical-looking DS. Perhaps the new system will have a camera-ready game to attract yet another new audience. Or perhaps the DSi will attract hardcore game makers, comforted by the new piracy prevention schemes. (For example, the bizarre Japanese hit game Rhythm Tengoku almost saw release this season, then was delayed until 2009 – might this niche title turn DSi exclusive?)

In any case, Nintendo still benefits enormously from the current state of the DS. Even if software sales shrank, each DS hardware sale reaps a profit. The emphasis on Touch! Generations titles keeps Nintendo’s name at the top of the list for prospective buyers. And for every hardcore sale hypothetically lost to piracy, the company’s getting two more from that previously untapped market.

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In the long run, however, Nintendo is losing the goodwill of innovative, hardcore game makers, many of whom have already retreated to the safety of digital distribution services like Xbox Live Arcade and the PlayStation Network. Those services already traffic in simple, portable-style games, only there’s no fear of flash carts. Flash cart makers have already alleged that the DSi is crackable, so the fear may stick.

With stagnant, average-acclaim DS and Wii releases for the past year, one can only imagine how long Nintendogs and Wii Fit can keep the hype machine running.

Sam Machkovech is the games critic for Seattle weekly newspaper The Stranger.

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