Nintendo has decided to appeal the DS Flash Cart case according to a statement sent to MVC UK. Not a surprise really. Especially when Divineo has already lost the same case in a Hong Kong court. It is prohibited from manufacturing, marketing or exporting its DS products in China. It was also ordered to pay Nintendo €45m in damages. No payment has been made yet.

“Nintendo is extremely disappointed with the decision by Paris’ Criminal Court to find Max Louarn, his company, Divineo, and other co-defendants not guilty in the criminal case involving the sale and distribution of game copying devices,” a statement sent to MCV explains.

“Nintendo welcomes the Prosecutor’s decision to Appeal the Judgment. As a victim Nintendo will join his Appeal. Nintendo supports action against the distributors of such devices.

While pirated games are an issue, the court rightfully in my opinion, pointed out that just because something can be used for illegal means doesn’t mean the device itself should be illegal. It comes down to how people use it. Cars can be used as getaway vehicles for bank robberies. Knives can be used to stab people. I can use this computer to send threatening letters.

I think what Nintendo should do is see the marketing opportunity they have here. Why not just give the DSi the ability to store your store bought games. You’ll control the platform and the input device so you can prevent piracy (as much as it can be, it is like wiping out cockroaches), and you’ll simultaneously take out the market for the 3rd party flash carts. It could even be set up so those who want copy protection can use it and those who don’t (like Homebrew devs) can still load their creations.

Win-Win, Or Lose-Lose? Your choice.

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