CJEU clarifies modifying variables in RAM does not infringe copyright under the Software Directive

Speed Read

The European Court of Justice (CJEU) has ruled that variable data transferred by a protected computer program to the random-access memory (RAM) of a computer and used by that program does not gain protection under the Software Directive 2009/24/EC, as the transferred contents do not enable the reproduction or subsequent creation of the computer program. The CJEU confirmed that, as long as the source code and object code remain untouched, rights holders have no claim against makers of cheating software under the Software Directive to ensure their programs run as originally intended. This preliminary ruling is not only significant for the gaming industry but also relevant for software developers more generally.

Background of the Dispute

The CJEU's ruling stems from a lawsuit filed by Sony Interactive Entertainment Ltd (Sony) against several companies within the Datel Group (Datel). Until 2014, Sony marketed the PlayStation (PSP) and games for that console, including the racing game MotorStorm: Arctic Edge. Datel developed and marketed cheat software that allowed users to modify Sony's game. When a user connected their PSP to a computer and inserted a USB stick containing Datel’s software, they gained access to an additional tab on the console, enabling modifications to the game. These modifications included options to remove usage restrictions, such as unlocking the full 'booster' function or making all drivers selectable without earning the necessary points.

In German courts, Sony argued that Datel’s software should be barred from the market based on copyright protection under the Software Directive, specifically Articles 1 and 4(1)(b), which prohibit "any other alteration" of computer programs. Datel countered that its software did not reproduce or modify Sony’s game code directly; instead, it adjusted the temporary variable values that MotorStorm: Arctic Edge created and stored in the PSP's RAM while the game was running. Datel argued that altering these variables caused the game to behave in ways possible within its design but unearned by the player's in-game progress.

In 2012, the Hamburg District Court partially upheld Sony's claims, but this decision was overturned by the Hamburg Court of Appeal. In early 2023, the German Supreme Court referred two questions to the CJEU regarding the interpretation of the Software Directive: first, whether altering variables stored in a computer's RAM without modifying a program's source or object code falls within the scope of protection under Article 1, and second, whether such modifications constitute an "alteration" under Article 4(1)(b).

The CJEU’s Preliminary Ruling

The CJEU addressed the first question — and consequently the second — that the content of variable data transferred by a protected computer program to the RAM of a computer and used by that program does not fall within the protection conferred under Article 1 of the Software Directive:

“Article 1(1) to (3) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the content of the variable data transferred by a protected computer program to the RAM of a computer and used by that program does not fall within the protection conferred by that directive, insofar as that content does not enable such a program to be reproduced or subsequently created.”

As Advocate General Szpunar noted in points 38 and 40 of his Opinion, the CJEU emphasized that the Software Directive limits protection to “any form of expression” of a computer program while explicitly excluding its “underlying ideas and principles.” Thus, only the text of the source code and object code are protected. This interpretation is supported by the Directive’s recitals, particularly recital No. 15, which emphasizes the protection of “the form of the code.” The CJEU further clarified that it also aligns with the Directive’s objectives — to prevent against the distribution of ‘pirated’ copies of those programs.

How has cheating software been dealt with in the UK?

Whilst the Software Directive has been incorporated into UK law, the two cases on cheating software in the UK to date (Blizzard Entertainment SAS & Anor v Bossland GmbH & Ors [2019] and Take-Two Interactive Software Inc & Anor v James & Ors [2020]) have focused on slightly different grounds, namely inducement of breach of contract and of authorizing copyright infringement.

In relation to the former ground, using cheating software is outside the terms of the licence provided by the video game provider to the player under the end user licence agreement (EULA) or terms of service. As such, the Court found in Take-Two and the defendants admitted in the judgment by consent in Blizzard that an entity that provides players with cheating software is deemed to be inducing players to breach the EULA or terms of service provided that entity knew there was a contract between players and video games providers (even where they didn’t know, or turned a blind eye to, the exact terms).  

The second ground, authorizing copyright infringement, is related to the first in that once a breach of the EULA or terms of service has been committed by a player, all temporary reproductions of the video game created by the player through the process of playing it are infringing copies. The Court found in Take-Two and the defendants admitted in Blizzard that the   entity that provided the cheating software authorized the creation of these infringing copies.

In any future UK cases that consider modifying variables in RAM as in the Sony v Datel case, the UK courts may well be influenced by the CJEU’s reasoning, especially given that the two UK cases to date were decided by judgment by consent and summary judgment respectively rather than full trial. However, now that the UK is no longer bound by case law of the CJEU, this is an area where further divergence between the EU and UK is possible. If this does occur, this would inevitably add complexity to any multijurisdictional disputes involving both territories.

Analysis and Impact

While it is understandable that developers and rights holders like Sony — and likely most users too — would consider cheating software an alteration, the recent preliminary ruling from the CJEU clarifies that this is not necessarily the case from a copyright protection point of view. Under the Software Directive, only the object code and source code are protected. Consequently, only a change or reproduction of those codes or the software's internal structure qualifies as an "alteration", which is prohibited.

The preliminary ruling provides room to developers of cheating software to bypass copyright restrictions in the Software Directive. However, the recent ruling does not endorse cheating software as a whole. In particular the reference to the CJEU asked a specific question about protection available under the Software Directive; protection may still be available under standard copyright law for aspects not protected under the Software Directive such as interfaces or in relation to bypassing technical protective measures. Other laws such as unfair competition and contract law could also be relevant. As such, the legal protection available to rights holders against cheating software is complex and must be evaluated on a case-by-case and jurisdiction-by-jurisdiction basis.

As software that allows computer programs to be used differently from their original design may also exist elsewhere, this preliminary ruling is significant not only for the niche audience of the gaming industry but also for software developers across various sectors.