Why the European Court of Justice’s ruling on fraud is not a milestone | Opinion

The European Court of Justice (ECJ) is the highest court in the European Union. Decisions regarding video games are rare. So if the decision rules, we expect the decision to be a game changer.

The judgment of October 17, 2024 – ruling against Sony in a dispute over cheats provided through Datel’s Action Replay for PSP – looks like this at first glance. A second look shows that in most cases it won’t change anything. The reason for this is that lawsuits against cheat software developers, especially in online multiplayer games, are now based on violations of game developers’ EULAs and competition law.

However, the case of the Court of Justice is different. This concerns the software Action Replay PSP and Tilt FX PSP, which gave superpowers to various games on Sony’s now almost forgotten Playstation Portable. Sony originally won a summary judgment in 2010 at the regional court in Hamburg, and two years later the case on the merits. The cheat producer appealed and the decision was reversed nine years later in 2021.

The German Federal Court of Justice subsequently referred the case to the Court of Justice. National courts can do this if they have doubts about the interpretation of EU law. As a reminder, the German Federal Supreme Court (Bundesgerichtshof) had already issued two decisions on cheats for World of Warcraft (from October 6, 2016 – case I ZR 25/15, and from January 12, 2017 – case I ZR 253/14).

When the German Federal Supreme Court now referred the case to the Court of Justice, it is not because the judges have changed their minds and become fraud-friendly. The reason for this was that the relevant legal question was different. The question was whether Action Replay PSP and Tilt FX PSP infringed copyright, even though they did not interfere with the source code and the software itself, but only changed variables in the computer’s RAM. The ECJ ruled that this is not sufficient to assume copyright infringement.

The questions that were relevant in the World of Warcraft cases were simply not on the table here (this may have something to do with the fact that Action Replay was brought to trial almost fifteen years ago, while it may not have been so clear what tools that publishers have against cheatbots, and also against the fact that it is not cheating in a multiplayer game).

For publishers of single-player games who want to crack down on cheating software, the European Court of Justice’s decision on Action Replay is not good news. According to the Court of Justice, tampering with games is not necessarily an infringement of copyright if the game software is not affected.

For single-player game publishers looking to crack down on cheating software, the European Court of Justice’s decision on Action Replay is not good news

However, there are still some tools left: for example, offering such cheats can still be an act of unfair competition. This aspect was only briefly discussed in the German Action Replay decisions, and not at all by the Court of Justice. This aspect is especially relevant for games that are monetized through microtransactions.

It could also be possible to validly agree in the EULAs that the game may not be used with cheating software. This aspect was only mentioned in a sidenote by the Advocate General in the Action Replay judgment, and – for procedural reasons – did not appear in the German judgment nor in the CJEU judgment. Finally, depending on the name of the cheat software, it may infringe on trademarks or proprietary rights.

Publishers of multiplayer games will have less to worry about. Numerous courts have ruled that cheats for multiplayer online games are illegal. One of the better known cases is Bungie vs. AimJunkies. Although this was decided in the US, there is no reason to believe that the outcome would have been different in the EU – neither before nor after Action Replay.

The German Federal Supreme Court has confirmed this with its two past rulings regarding World of Warcraft, as have other courts. These two decisions are not called into question by the new judgment of the Court of Justice, because the subject matter is different. From the perspective of most players, because World of Warcraft’s decisions apply specifically to multiplayer online games.

One of the World of Warcraft rulings was about whether the manufacturers who developed the cheat software had the right to use World of Warcraft for commercial purposes, i.e. the development of the cheat software (which is a discussion based on copyright). . The other decision concerned whether the impact of the cheat in question on the game constituted an unfair interference and hindered Blizzard’s ability to market its game in the manner originally intended (this is an argument based on unfair competition law).

The first of these questions was not addressed in the Action Replay cases, and Sony has not provided sufficient evidence on the second. Publishers of multiplayer online games can therefore still rely on established case law when taking action against cheating software.

In addition, there are numerous other aspects that may be relevant depending on the details of the case at hand (such as aiding and abetting copyright infringement of users playing the game in violation of the EULAs by using cheating software, circumventing technological protection measures or changes to the look and feel of the game).

Publishers of multiplayer online games can still rely on established case law when cracking down on cheating software

Now, finally: did it matter that Action Replay was litigated in Europe and Bungie vs. AimJunkies in the US? Probably not that much. The relevant aspects of litigating against cheatbots for multiplayer games are essentially similar, even if the legal traditions and procedure are different.

Publishers have a wide choice of where to bring such cases to court. It may be a logical choice to charge the offenders where they are located. It facilitates the enforcement of judicial decisions against the infringer. The geographical scope of the decisions of the court where the infringer is located is also potentially wider.

However, there may also be other aspects to take into account, such as how robust and fast the legal system is, or what its costs are. Germany, for example, has a lot of case law and the courts often quickly rule in summary proceedings. In the US, the procedures may be more expensive, but it may be easier to obtain that missing piece of information through discovery. So there are many aspects to take into account.

Dr. Andreas Lober is a partner at the law firm ADVANT Beiten. He has been advising video game companies for years and has been involved in various legal proceedings against publishers of cheating software. The views expressed in this article are his personal opinions and conclusions.