Is cheating copyright infringement? CJEU clarifies specific protection of computer programs | Hogan Lovells

The underlying case

The CJEU’s preliminary decision arose from a lawsuit filed more than 12 years ago by Sony Interactive Entertainment Ltd. (“Sony”) against companies in the Datel Group (“Datel”). Datel developed and distributed complementary products for Sony game consoles, including but not limited to the “Action Replay PSP” software, which worked exclusively with original Sony games, in this case the PlayStation Portable (PSP) game “Motorstorm Arctic Edge.” Installing Datel’s software allowed users to modify the gameplay in “Motorstorm Arctic Edge”, for example, removing restrictions on using the turbo function or selecting drivers – some of which are normally unlocked only after reaching a certain number of points. In other words, Datel provided cheating software for Sony’s games, allowing users to bypass the need to progress in the normal game.

According to Datel, their software did not copy the code from Sony games, nor did it alter the code itself. Instead, “Action Replay” modified the values ​​of temporary variables that “Motorstorm Arctic Edge” created and stored in the PSP’s random access memory (RAM) while the game was running. Modifying these variables caused the game to work under assumptions and conditions that were possible within the game but were not achieved by the player’s actual progress. In short, Datel’s claim was that although Datel’s Action Replay PSP changed the gaming experience, it did not change Sony’s game program code.

Sony, among other allegations, invoked copyright protection for its gaming software under Directive 2009/24/EC, which in Articles 1 and 4(1)(b) provides protection against “any other alteration” of computer programs (implemented in Articles 69a and 69c German Copyright Law). In early 2012, the Hamburg District Court partially upheld Sony’s claims, but this decision was later overturned by the Hamburg Court of Appeal. In early 2023, the German Supreme Court referred the matter to the CJEU, which has already ruled on the scope of protection under Directive 2009/24/EC.

CJEU preliminary decision

The German Supreme Court referred two questions to the CJEU: first, whether changing variables stored in a computer’s RAM without modifying the source code or object of a program falls within the scope of protection of Article 1 of the 2009 Directive /24/EC, and secondly, whether such modifications can be qualified as an “amendment” within the meaning of Article 4(1)(b) of the Directive. The CJEU answered the first (and therefore also the second) question as follows:

“Paragraphs 1 to 3 of Directive 2009/24 must be interpreted as meaning that the content of variable data transferred by a protected computer program to the RAM of a computer and used by that program in its operation is not covered by protection. conferred by this directive, to the extent that such content does not permit the reproduction or subsequent creation of such a program.”

The variables stored in the PSP’s RAM and modified by Datel’s software are not, according to the CJEU, part of Sony’s “computer program”. At a broader level, paragraph 38 of the judgment is particularly noteworthy, as it states that the scope of application of Directive 2009/24/EC is limited to the source code and object code of a computer program:

“The protection guaranteed by Directive 2009/24 is limited to intellectual creation, as reflected in the text of the source code and object code and, therefore, to the literal expression of the computer program in these codes, which constitute, respectively, a set of instructions according to which the computer must perform the tasks defined by the author of the program.”

The CJEU based this conclusion on three main legal arguments: Firstly, the wording of Directive 2009/24/EC, which protects “any form of expression” of a computer program, but explicitly excludes its “underlying ideas and principles”. (paragraphs 31 to 41). . Secondly, the recitals of the Directive, specifically recital no. 15, which refer to the protection of the “form of the code” (paragraphs 42 to 45). Thirdly, the objectives of the Directive are to provide protection against the easy and cheap reproduction of software, whilst ensuring that it does not harm independent development or interoperability between different computer programs (paragraphs 46 to 51).

Impact of the ruling on copyright protection of computer programs

It is understandable that game developers like Sony (being the true authors and rights holders), and probably most users, view “cheat software” as a significant “change” to a computer game. There has also been case law in Germany (including Sony’s previous successes in the lower courts) that has held that a computer program could be “altered” not only by modifying its code, but also by external measures that change the way the program runs ( e.g. changing variables stored in RAM).

The recent CJEU ruling now provides more certainty about the scope of copyright protection for computer programs. It is based on the Court of Justice’s previous rulings on Directive 2009/24/EC (and its predecessor, Directive 91/250/EEC). The CJEU has consistently sought to limit the protection of a “computer program” to its source code and object code and has held that elements such as the graphical user interface, the functionality of a program, its programming language and specific file formats data do not constitute “expressions” of a computer program (Judgments of December 22, 2010, Case C-393/09 – BSA, and of May 2, 2012, Case C-406/10 – SAS Institute). Taking this previous case law into account, the recent CJEU ruling could well be interpreted as confirming that (as long as the code is not changed) right holders have no right (under Directive 2009/24/EC) to ensure that their programs run as they intended.

Fraudulent software and other unauthorized external software manipulations do, in fact, continue to present significant challenges. Similar cheat tools are available for other games, often manipulating RAM in the same way. The problem goes beyond games and affects all types of software. Another relevant case, for example, is Springer v. Eyeo, involving ad-blocking software, which the German Supreme Court (Case I ZR 131/23) upheld pending the CJEU ruling in the Sony case (see our previous coverage). Rights holders (and their legal advisors) must now explore alternative ways of ensuring legal protection. The door isn’t closed yet – some potential paths for game (and software) developers include the following:

• The CJEU’s decision is expressly limited to protection under Directive 2009/24/EC, which specifically governs computer programs. Elements for which the CJEU does not grant protection under Directive 2009/24/EC, such as its user interface, or, in the case of a computer game, its plot and storyline, can arguably be protected under “standard” copyright law, which at least the European level is harmonized by Directive 2001/29/EC.
• Under certain circumstances, the distribution of fraudulent software that allows players to violate the rules of the game may be prohibited, at least in Germany, on the basis of unfair competition law. In a historic decision, the German Supreme Court, for example, banned the use of so-called “buddy bots”, which allowed cheating in World of Warcraft, a paid online game where cheating threatens the business model because players can cancel their subscription. membership if cheaters spoil the fun (Judgment of January 12, 2017, Case I ZR 253/14 – World of Warcraft II).
• When cheats or other third-party software are used to circumvent technical protection measures (e.g. password queries, program or time locks), such circumventions may be subject to independent claims under Articles 95a and 69f(2 ) of the German Copyright Act (which implements Article 6 Directive 2001/29/EC). However, this requires that the software in question is used exclusively to circumvent technical protection measures and does not, at the same time, perform legitimate technical functions, such as playing music discs on a games console (CJEU, Ruling of 23 January 2014, Case C-355/12 – Nintendo vs PC Box).

In conclusion, despite the CJEU ruling, the legal protection available to rightholders against external manipulation of games (or other software) will still depend on the specific facts of each case.