In the legal dispute between Sony and Datel, the German Federal Supreme Court of Justice (BGH) has to rule on the permissibility under copyright law of the distribution of cheat software, which enables gamers to manipulate games running on a console.
On 23. February 2023, the BGH referred two questions to the ECJ for a preliminary ruling in order to clarify the legal situation under EU law (Decision of 23. February 2023, Case No. I ZR 157/21 – Action Replay).
Facts of the Case
The defendant, the British company Datel, develops, produces and distributes, among other things, the software “Action Replay PSP”, which enables players to manipulate the gameplay of games on the claimant’s handheld console Sony Playstation Portable (also “PSP”) in such a way that certain game restrictions are circumvented. For example, in the racing game “Motorstorm Arctic Edge,” players were able to bypass the limitation of the “Turbo” function in order to be able to use the “Turbo” infinitely, or to unlock all driver characters available in the game regardless of the actual game progress.
Defendant’s software essentially works by running in the background on the multitasking capable PSP as a separate program, independent from the console’s operating system and the game being played at that moment. By using a hotkey combination, the player opens a separate menu in which he or she can activate the desired cheats. The cheat software then changes individual values in the data that the games of the plaintiff Sony temporarily store in the RAM of the console in order to achieve the desired effect in the game, without influencing the software of the game itself.
Sony claims that this process constitutes an unauthorized reworking of its games within the meaning of Section 69c No. 2 of the German Copyright Act (UrhG).
The Hamburg Regional Court (LG Hamburg) had largely upheld the claim for injunctive relief, disclosure and a declaration of liability for damages (Judgment of 24. January 2012, Case No. 310 O 199/10). According to the LG Hamburg, the influence on the game’s program sequence by the defendant’s external software constituted a modification of the plaintiff’s affected games. The fact that the change in the program execution did not take place through a change in the game software itself, but rather through the change of the data stored in the RAM, was immaterial for the copyright infringement.
The Hamburg Higher Regional Court (OLG Hamburg) overturned the judgment of the Regional Court and dismissed the claim (Judgment of 7. October 2021, Case No. 5 U 23/12). The OLG Hamburg denied a modification of the software, since there was neither a modification of the program itself, nor a modification of a program copy uploaded to the RAM of the PSP. The use of simultaneous commands that modify the data stored by the protected game in the RAM is not sufficient for a modification that is relevant to copyright law. This follows, so the OLG Hamburg, from an interpretation of Section 69c No. 2 UrhG oriented to the subject matter of Article 4 of the Software Directive 2009/24/EC.
Sony is now pursuing its claim with the appeal allowed by the Hamburg Higher Regional Court.
Questions for the ECJ
The BGH considered Union law provisions to be affected in the present case, requiring an interpretation by the ECJ. Therefore, in its decision of 23. February 2023, the BGH suspended the proceedings and referred the following questions to the ECJ for a preliminary ruling:
- Is the scope of the protection of a computer program under Article 1(1) to (3) of Directive 2009/24/EC infringed if it is not the object code or source code of a computer program or its copy that is modified, but rather the content of variables that the protected computer program has created in the working memory and uses in the execution of the program are modified by another program running at the same time as the protected computer program?
- Does modification occur pursuant to Article 4(1)(b) of Directive 2009/24/EC if it is not the object code or source code of a computer program or its reproduction which is modified, but another program running at the same time as the protected computer program modifies the content of variables which the protected computer program has created in the working memory and uses in the running of the program?
Consequences for the Practice?
The Playstation Portable and the defendant’s cheat software are most likely of interest to only a handful of dedicated gamers due to the generational changes in the games industry since the beginning of the dispute. Nevertheless, the specific methodology in cheating remains relevant despite the use of more advanced technology and anti-cheat software.
The ECJ’s answers will also have a very high practical relevance beyond the world of video games.
In part, it is argued that websites also constitute computer programs as defined by Section 69a UrhG. Should the ECJ follow the view of the LG Hamburg and consider the operation of the cheat software to be a modification of the game, then it might have consequences for websites as well. It would be necessary to see whether add-ons, which do not make changes to the source code itself, but to data in RAM or cache memory that is read by the source code and influences the operation of a website, could also be considered a modification in violation of copyright (cf. LG Hamburg dated 14. January 2022, Az. 308 O 130/19 – AdBlocker; not legally binding).
In the present case, many factors speak in favor of the fact that the operation of the cheat software does not constitute a modification of the copyrighted game pursuant to Section 69c No. 2 UrhG. The workflow of a computer program does not regularly belong to the object of protection of §§ 69 ff UrhG. Since the source code of the manipulated games is not accessed in the present case and no other technical processes relevant to copyright are affected, the reasoning of the Hamburg Higher Regional Court is convincing. Moreover, in its SAS Institute ruling of 2.5.2012 – C-406/10, the ECJ had already established that the functionality, and thus also the undisturbed program flow, i.e. in the context of the use of the software itself, is not subject to the protection of copyright in computer software.
It remains to be seen how the ECJ will rule. We will report further on this matter.