Modifying a console to get around its copy protection system may be lawful according to the Court of Justice of the European Union.
Nintendo argues that the predominant use of the PC Box software is to facilitate piracy and does not intend to give up on this case just yet.
Nintendo brought a case against European retailer PC Box for its sale of software that allows users to deactivate the protection measures found in Wii and DS consoles. Nintendo argued that the main reason for doing this was to subsequently play pirated games on the devices.
The defence from PC Box was to focus instead on the way the modification allows for independent software, mp3 files, films and videos to run on the consoles instead.
The protection circumvention software was ruled as not unlawful by the court as the content that can be viewed on the consoles is not itself illegal and that the legal protection would only cover technological measures taken to prevent unauthorised copying, communication, public offers or distribution.
Nintendo's response was that it will not be giving up and plans to continue to 'fully engage' with the Milan court where the issue arose over the PC Box software.
'Since Nintendo only ever utilizes technological protection measures which are both necessary and proportionate to prevent widespread piracy of its intellectual property, and since the preponderant purpose of the circumvention devices marketed by PC Box is to enable piracy of legitimate video games, Nintendo is confident that the application of the guidance set out by the CJEU relating to proportionality will enable the Milan Tribunal to determine that the sale of circumvention devices is unlawful,'
a Nintendo spokesperson said in a statement.
Nintendo has been hit headlines for its court room activities over the last month. It recently lost a patent battle relating to the glasses-free 3D technology used in the 3DS and was ordered to pay out around $105m to Tomita Technologies.