Nintendo has been involved in a number of legal cases to shut down and cease the sale of products used for "modding" its consoles, with the resulting uses circumventing the official functionality of the hardware. A current ongoing case in Italy is with PC Box, with Nintendo pursuing a case due to the company marketing and selling devices designed for console mods. Nintendo has issued a press release following the most recent "guidance" by The Court of Justice of the European Union (CJEU), in order to make clear that it's pleased with the result; the final outcome of the dispute with PC Box is yet to come.
In a fairly lengthy ruling, it's clear that the CJEU hearing has stated that Nintendo has a valid case to suggest that the modding products sold by PC Box infringe on Nintendo's copyright with its hardware, in terms of potentially circumventing the copyright of its games. Despite this, PC Box claims that its equipment is designed to allow the use of video and MP3 content on the hardware, and therefore isn't liable under existing EU copyright law. The crux of the decision is that it's for the Italian court — in the civil case — to determine whether the PC Box products were intended for non-game and non-copyrighted activity, or whether their functionality would infringe on Nintendo's content and enable illegal copies of games. Like we said, complicated.
Nintendo's press release makes clear that it's happy with the CJEU ruling, and is confident moving forward to the full court case with PC Box.
The CJEU’s interpretation of the Copyright Directive appears to be in line with the international obligations of the European Union and its Member States under the WIPO Copyright Treaty and furthermore, supports those national Courts in Belgium, France, Germany, Netherlands, Spain and the UK which have already considered and applied the same provisions of EU law consistently resulting in many positive decisions against sellers of circumvention devices.
Nintendo will continue to fully engage with the Milan Tribunal, from whom the reference to the CJEU arose, in order to allow it to reach a considered reasoned decision in the civil case between Nintendo and PC Box. Furthermore, since Nintendo only ever utilises 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.
In the meantime, Nintendo maintains that the commercial dealings in circumvention devices infringe copyright laws as well as other intellectual property laws and Nintendo will continue to pursue those involved in the distribution of such devices.
As console mods do often allow users to play games they don't own, that's perhaps the grounds for Nintendo's optimism in this case. Nintendo hasn't won this battle yet, but clearly feels it has good odds.