A landmark judgement by the ECJ: new challenges for game developers

Manipulation in computer games, so-called ‘cheats’, is an old but still highly topical issue in the gaming industry. The ECJ recently ruled in a dispute between Sony and cheat software manufacturer Datel on the question of whether the use of such software infringes copyright.

Sony had sued Datel because its ‘Action Replay PSP’ software gave users unfair advantages in games such as ‘MotorStorm: Arctic Edge’ on the PlayStation Portable. Datel did not manipulate any programme structures or source codes, but accessed variable data in the RAM in order to influence the gameplay. After several instances, the ECJ ruled that as long as the source or object code of a programme remains untouched, there is no copyright infringement.

The Federal Court of Justice (BGH) had originally referred the case to the ECJ to clarify whether the manipulation of variable data in a game's RAM falls under the copyright protection of a ‘computer programme’ within the meaning of the EU Software Directive. It is now up to the BGH to make a final decision on the basis of the ECJ judgement. The ECJ's assessment indicates that Sony's appeal will be dismissed and the ruling is likely to be in Datel's favour.

The judgement does not offer game developers comprehensive protection against cheat software. The ECJ clarified that the scope of copyright protection cannot be extended to functional elements such as variable data. Developers must therefore increasingly rely on technical protective measures, such as AI-based cheat detection, or legal approaches, for example in competition law.

In their guest article in the Frankfurter Allgemeine Zeitung, our lawyers Dr Kai Tumbrägel and Dr Ricardo Vocke-Kerkhof shed light on the legal details of the ruling and its significance for the future of the industry.

You can find the online article here (in German): What helps against cheating software