I have a modest proposal to end the open source/piracy debate: How about, instead of open-sourcing it now, committing to open-source it by some date, such as by 2020? If you wait that long, the next generation system will be out, and people won't care so much about 3DS. But it means that the source code will be available for future generations to use, and it means that people will be able to play hacks, translations, and undubs without tracking down a Gateway cartridge from an out of business company. And at that point it will only be piracy in the sense that emulating SNES games today is piracy.
The history of emulation is littered with programs that the owner has abandoned, and that required everyone else to start from scratch because the abandoned program wasn't open source. Now that systems require significant hacking to run anything, it looks like this is going to happen to hacks as well as emulations. And this sucks.
(Actually, even this is still a problem, because of firmware. If you don't give people an incentive to keep their machine on a hackable firmware *now*, in five years from now there won't be any systems which are still hackable except from people who were using a Gateway all along.)