Can a video game producer ban cheat software?

How far does copyright protection for video games extend? The Court of Justice had to rule whether offering cheat software (being software that makes playing a video game easier by circumventing certain difficulties devised by the video game producer) infringes the producer's copyright. This is not the case stated the Court of Justice in a judgment dated October 17, 2024.

Sony is the manufacturer of the well-known PlayStation video game consoles and also markets video games for these consoles. Until 2014, it offered for sale the PlayStation Portable console and the game "MotorStorm: Arctic Edge," among others.

Sony initiated legal proceedings in German courts against company Datel, which offers software and a device compatible with that PlayStation and provides the user with game options not offered by Sony in the video game itself.

Sony believes that these products from Datel have the effect of modifying the software on which its game is based, thereby infringing its exclusive right to allow such modifications. Sony therefore requested the German court to prohibit Datel from marketing the products in question and to order it to pay compensation for the damages allegedly suffered.

The case eventually came before the Bundesgerichtshof (BGH) which decided to refer a preliminary question to the ECJ on the interpretation of the directive on the
protection of computer programs (the Software Directive) which was transposed in Belgium by Articles XI.294 et seq. of the Code of Economic Law .

The BGH notes that Datel's software is installed on the PlayStation by the user and runs concurrently with the game software. It does not modify or reproduce the object code, source code or internal structure and organization of Sony's software. It only changes the content of the variables temporarily transferred to the console's working memory (RAM) by Sony's games and used during game execution. So the game runs based on those variables to the changed content.

The Court of Justice finds that the content of variable data stored by a computer program in the working memory of a computer and used by that program in its operation is not covered by the protection granted by the Software Directive to the extent that that content does not permit the reproduction or subsequent manufacture of such a program.

Indeed, the Software Directive protects only the intellectual creation as expressed in the text of the source and object code of the computer program. By contrast, the Software Directive does not protect the functionalities of the program or the elements that allow users to make use of such functionalities, unless they allow that program to be reproduced or created at a later time.

Although this case involved Sony's PlayStation, the significance of this ruling goes further. Software also exists in other industries that allows computer programs to be used in ways other than those originally intended. This in itself is not an infringement of the software producer's copyright.