Tom Buscaglia, a lawyer who specializes in working with video game issues, puts it this way: "U.S. copyright laws have become more and more aggressive over the years. Not only is piracy illegal, but creating and selling a technology that facilitates piracy is also outlawed here. Nintendo would probably proceed on that legal theory, if it were to proceed in U.S. courts. It's sad that some developers will end up being deprived of the opportunity to release innovative little games on an open DS platform. Whatever the reason you're using [the R4], Nintendo has to look at the profit model. Companies like Nintendo aren't making money on the hardware, they make it off licensing fees and software." The argument that Nintendo will no doubt use is that the R4 is primarily for playing pirated games.
Though not versed in the Japanese laws, Buscaglia says that in all likelihood the R4 will be blocked here in the States. Even if Nintendo didn't have a rock-solid case, the company definitely has lots of money. And as when Sony sued PlayStation emulator Bleem out of existence, sometimes the little guy loses simply because it runs out of money and can't keep fighting in court.
Even though the R4 case seems cut-and-dried, Buscaglia says, "I'm torn on it, to be honest, because I'm all for the innovation and inspiration of the independent developers. The sad truth is that they don't have the resources to become certified developers.... But you can't really blame Nintendo for protecting its revenue stream."
Unfortunately, Nintendo representatives weren't available for comment in time for this story.
If you're asking for my two cents, I'd say the R4 is a legitimate tool, provided you're using it for the right reasons. Nintendo isn't the bad guy here, piracy is--we just need to find a good middle ground that will protect IP. Most important, though: Homebrew shouldn't be a crime. (Disclaimer: My legal expertise stems from a Law & Order marathon.) In fact, homebrew is the source for some truly daring, creative titles, and they get put together on a shoestring budget. Will Nintendo ever set up a WiiWare-like program for the DS development community? Spokespeople couldn't say.
I can only hope that some companies relent and that someone, someday will allow for a truly open platform. Oh, wait--we have one already. It's called a PC. All it takes is a Google search for places like TIGSource.com and IndieGames.com, and you're knee-deep in innovative, independent games. No crime, no punishment.