Like everybody said it, it depends on your needs; I own a NDS for a year now and I'm getting kind of bored just because I made a wrong decision (or maybe it wasn't?).

If you are more likely to play a JRPG and mario/pokemon based games than to play games with quality graphics, music and videos get NDS. Of course, you can play all the stuff on NDS too, but it really has a poor audio output (for a mp3 player, not when it comes to games). Also, you should ask yourself if touch screen is really important for you, it was one of the main reasons why i bought NDS, but i haven't find much use for it.

When it comes to piracy, you don't have to worry about choice :P.