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Last week at E3, all of the major (and minor) players in the games industry flocked to L.A. to try to wow gamers and press with what they had up their sleeves. One company clearly stood above the rest; after years of silliness that had core gamers rolling their eyes at Wii Music and the Vitality Sensor, Nintendo was back on its game. Its press conference was full of announcements of new releases from beloved franchises like Donkey Kong Country and Kid Icarus with nary a Vitality Sensor in sight. Then there was its crown jewel: the 3DS.

Sony might have been demoing its own 3D gaming elsewhere, but those glasses still get annoying after a while. Following the 3DSs debut on Tuesday, the news about Nintendo’s glasses-free-3D handheld only seemed to be getting better and better. First, the 3D tech really did work as advertised, and the system’s graphics seemed to be on par with the full-sized Wii. Next, it was the absolutely massive lineup in development, including remakes of some of the most beloved games of all time. And finally, we learned that, allegedly, the 3DS would be able to install games from the cartridge, eliminating the need to swap cartridges on the go.

All of those news tidbits are interesting in their own way, of course, but it’s the last one that has the most potential implications. If you skim the comment thread to the news post, you’ll see comment after comment of people wondering how this might affect piracy. Doesn’t this just mean that people could rent games – or buy them and then return them – and install them on their 3DS? What’s to stop a gamer from lending a game to his friend, all the while continuing to play it from his system memory – or a group of 3DS owners from passing their games around, letting everyone install their own copies for free?

Barring some sort of unforeseen DRM, or limits to the system that we don’t know about … absolutely nothing. From a critical point of view, it seems that Nintendo has just thrown itself wide open to the mercy of the merciless – why buy games when Nintendo is letting you keep rentals for free? Given how much time and money the Big N has spent trying to stamp out the proliferation of the R4 cart and its kin, it seems baffling that the hardware giant would include a function in its newest handheld to essentially do the same thing. Has Nintendo lost its mind?

No, it hasn’t – it’s just playing a different game.

As I pointed out last week, despite all the money and effort Nintendo spent on trying to kill the R4, it failed – completely and utterly. Flash carts like the R4 are commonplace, and DS software is quickly and easily pirated. Nintendo has to know that sooner or later, whatever precautions it has in place on the 3DS will be broken, and someone will come up with a new equivalent to the R4.

So it’s trying to head them off at the pass. While I suspect that most people who own an R4 just do so for the purpose of pirating games, I don’t doubt that there is a percentage – if only a small one – who bought an R4 solely for convenience. They could copy all of their legitimately-bought games onto the one cart, and have them all in one place. No muss, no fuss! Even the pirates probably appreciate that same functionality – it’s just nice not having to swap out cartridges when you’re on a 5-hour plane flight.

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But even just having an R4 has to be a temptation. When all you have is a hammer, all the world starts to look like a nail – and when all you have is an R4, all the games start to look free. Nintendo may be gambling that by offering the functionality and convenience of flash carts right out of the box, it will discourage convenience-seekers from picking up the equivalent for the 3DS (and thereby getting tempted to download games for free).

On the other hand, what about all of the people who (let’s face it) just get flash carts because they want free games? These are the people who would rent games, or buy and return games, or trade games, or whatever – they’d install the game, keep it for free, and never look back.

Honestly, Nintendo would probably still prefer that to the current state of things. Right now, all it needs is for one person to buy a copy of a game and put it on the internet, and thousands (if not hundreds of thousands) of people can download a pirated copy. Do you think game makers would prefer to have one legit copy shared between ten friends, or one legit copy shared by a hundred thousand people? By making it easier to get copies of games for free without ever venturing online, Nintendo might be hoping to reduce the overall impact of piracy on a per capita basis.

If all of this is true, this could represent a huge turnaround in how one of the industry’s major players deals with piracy – and honestly, it’d be a turn for the better. Rather than trying to futilely stomp out piracy with lawsuits and draconian DRM, Nintendo seems to be taking a “if you can’t beat ’em …” attitude. By offering Nintendo-sanctioned convenience and trying to address some of the root causes of why people buy flash carts in the first place, the 3DS’ install functionality may be an attempt to curb piracy through the offering of a carrot, rather than the threat of a stick.

Of course, these are all big “ifs.” While the source that reported the new feature of the 3DS is a trustworthy one – Nikkei is one of the biggest Japanese newspapers, and (correctly) reported that Nintendo’s newest handheld would have high-quality graphics months before its official reveal – it hasn’t actually been confirmed by Nintendo yet. Even assuming it is real, we don’t know what limitations (if any) will be on the functionality. Maybe cartridges can only be copied to any one 3DS at a time, similar to how any given Pokewalker only works with one copy of Pokémon HeartGold/SoulSilver at a time. Maybe the 3DS only has enough memory for a handful of cartridges, meaning that you’ll need to keep trading as new games come out.

So, it’s completely possible that when we learn more about the feature, this column will be completely invalidated. But until then, it’s nice to think that maybe, just maybe, one of the major players in the industry is taking a different approach to dealing with piracy, don’t you think?

John Funk hates Greg Tito for getting to play the 3DS at E3. What a jerk.

No Science, Please, We’re Insane Clowns

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