Sony v Datel – a “cheat code” for copyright infringement?

On 17 October, the Court of Justice of the European Union (“CJEU”) handed down its decision in Sony v Datel (C-159/23), finding that software which allows players to “cheat” in video games does not infringe copyright, where that software only changes the content of the variables stored in the relevant device’s RAM, and does not enable the computer program for the video game to be reproduced or re-created.

Background

The decision concludes a long legal battle between Sony, a video game and console manufacturer, and Datel, a developer of software and devices which allow players to use consoles and games in ways not intended by their manufacturer (so-called “cheating software”). 

Datel’s products include the “Action Replay PSP” software and the “TiltFX” device, which allow players of Sony’s racing game “MotorStorm: Arctic Edge” to access normally unavailable features (such as previously locked drivers) by running in parallel with the game and changing the content of certain variables the game transfers to the device’s RAM. 

Sony brought proceedings against Datel in Germany, alleging that the use of Datel’s products infringed its exclusive right to alter its computer program within the meaning of the German implementation of Articles 1(1) to (3) and Article 4(1)(b) of the Software Directive (Directive 2009/24/EC).

Articles 1(1) to (3) set out how computer programs are protected under EU copyright law, with that protection extending to the original expression of the program, but not the underlying ideas. Article 4(1)(b) gives the copyright holder exclusive rights to translate, adapt, arrange and alter their computer program. 

In March 2023, the German Federal Court of Justice referred the following two questions on these provisions to the CJEU:

1. Does a program interfere with the protection afforded under Article 1(1) to (3) of the Software Directive, if it changes the variables transferred to the RAM by the protected program and used in the running of that program, but does not change the object code, source code, or the reproduction of the underlying program?
2. Does it constitute an “alteration” under Article 4(1)(b) of the Software Directive when a program alters variables transferred to the RAM by the protected program and used in the running of that program, but does not change the object code, source code or reproduction of the protected program?

The CJEU's Decision

In answering the first question, the CJEU essentially reframed it to ask whether the content of variables which a computer program transfers to a computer’s RAM and which are used for running that program, falls within the scope of copyright protection under the Software Directive. And it answered that question in the negative – “the content of the variable data (…) does not fall within the protection conferred by that directive, in so far as that content does not enable such a program to be reproduced or subsequently created.”

The CJEU’s reasoning was based on three main lines of analysis. 

First, Article 1(2) of the Software Directive protects the expression of a computer program, not the ideas and principles which underlie its elements. The source code and object code are forms of expression, since they allow the program to be reproduced or subsequently created, whereas other elements are not protected (such as the program’s functionalities and the elements by means of which users make use of such functionalities).

Second, this interpretation is supported by the preamble to the Software Directive, which states that the ideas and principles which underlie programs, algorithms and programming languages are not protected – it is only the reproduction, translation, adaptation or transformation of the “form of the code” that constitutes infringement.

Third, this interpretation is consistent with the objectives pursued by the Software Directive, namely to protect authors of computer programs against unauthorised reproduction, which is easy and cheap in the digital environment. It is not, however, to grant monopolies hindering independent development – competitors are free to create their own implementations of the same ideas in order to create compatible products.

In light of the above, the CJEU found it unnecessary to answer the second question that was referred. 

Comment

The CJEU’s decision confirms that copyright protection for computer programs under the Software Directive is narrow and only extends to the literal expression of the program, particularly the source and object code. The functionality, programming language, data format, and content of variable data transferred to a computer’s RAM (and subsequently used by the program) are not protected. 

Interestingly, in its observations, the European Commission raised the possible protection of elements of Sony’s games other than the computer program itself (e.g. graphic, sound, visual and narrative elements) under the InfoSoc Directive and asked the CJEU to consider whether the use of “cheating software” like Datel’s could constitute the reproduction of a work within the meaning of Article 2(a) of that Directive. Unfortunately, the CJEU refused to examine this point on procedural grounds (the questions referred to it did not mention the InfoSoc Directive and the referring German court expressly stated in its order for reference that reproduction was not in issue). However, the Advocate General, whilst agreeing that this was something the CJEU did not need to analyse, did give some high level views on it in his Opinion and expressed concerns about the viability of the Commission’s argument. In particular, he noted that any direct infringement based on the InfoSoc Directive would be attributable to users, and only indirectly to manufacturers like Datel. And, as far as graphic elements of games might be reproduced on users’ computer screens when those games were running, he considered that those reproductions would fall within the temporary copies exception in Article 5(1) of the InfoSoc Directive.

As a result, whilst Sony v Datel does not close the window for challenging “cheating software” entirely, it certainly does appear to significantly narrow it down.