I would have said "No since the Miiverse was FREE. And you don´t aquire a valid licence if you start it."
While buying a DS-game gives you a VALID key from Nintendo. And this is needed in order to circumvent the heavy protection-mechanism.
So what they do is just delet the DS-game´s content and just overwrite it. Since the key/licence is valid, nobody finds out that there isn´t a DS-game stored in there but a homebrew-application. Quite clever.