Ruling by the CJEU on October 17, 2024 – C-159/23
Cheat software does not necessarily violate copyright. This was decided by the Court of Justice of the European Union (CJEU) in a ruling on October 17, 2024 (Case No. C-159/23). According to the CJEU’s jurisprudence, temporary modifications in the working memory of a gaming console do not constitute an impermissible adaptation of the program. A copyright infringement would only occur if the source code or the structure of the program were altered.
Copyright automatically protects works that are the result of a personal intellectual creation. This protection applies not only to images, texts, music, films, and other works but also to computer programs, according to the commercial law firm MTR Legal Rechtsanwälte, which provides counsel in IT law. The CJEU was tasked with clarifying whether copyright is violated through the use of cheat software.
Cheat Software Removes Restrictions
Cheat software allows players to bypass certain restrictions of the computer program, enabling greater gameplay possibilities. These restrictions are often intentionally implemented by game developers and are circumvented by using cheat software. The German Federal Court of Justice (BGH) referred the question to the CJEU for a preliminary ruling on whether this constitutes a copyright infringement.
The case at hand involved a video game for a specific gaming console. Using cheat software, players gained access to additional gameplay features. The console provider considered this an impermissible adaptation of the game, thereby infringing its copyright, and pursued claims for damages.
Lawsuit Reaches the Federal Court of Justice
The lawsuit progressed through several levels of the judiciary. While the Hamburg Regional Court determined that copyright had been infringed, the Hamburg Higher Regional Court took a different view during the appeal process and dismissed the claim. The Higher Regional Court reasoned that cheat software merely interferes with the gameplay process without altering the program’s coding, meaning no copyright infringement occurred.
The claimant appealed this decision, prompting the BGH to involve the CJEU. The CJEU was asked to determine whether cheat software constitutes an impermissible adaptation of the game and infringes on copyright. The BGH highlighted that although cheat software operates concurrently with the game software, it neither modifies nor replicates the source code or the internal structure of the game software.
Variable Data Not Protected
Under the European Directive 2009/24/EC and Section 69a of the German Copyright Act (UrhG), computer programs are protected by copyright. This protection covers all forms of expression of a computer program, but the ideas and principles underlying the program are not covered by copyright.
The CJEU clarified that the temporary changes made by cheat software in the working memory of a gaming console do not constitute an impermissible adaptation of the game and, therefore, do not breach copyright. The European directive for the protection of computer programs does not cover the content of variable data that a computer program stores in a computer’s working memory and uses during its runtime, provided such content does not enable the replication or creation of a program, the CJEU ruled. The directive only protects the intellectual creation as reflected in the source codes and object codes of the computer program. It does not protect the program’s functionalities or the elements through which users utilize these functionalities if they do not facilitate the reproduction or subsequent creation of the program, the CJEU emphasized.
Final Decision Lies with the BGH
The final decision in this years-long legal dispute now rests with the BGH. It is expected that the judges in Karlsruhe will conclude, in light of the CJEU’s ruling, that cheat software does not violate copyright. While such a ruling would set a precedent, other scenarios could still involve copyright infringement—for example, if cheat software were to interfere with the program’s source code. Therefore, caution remains essential, as copyright infringement can result in warnings or claims for damages.
MTR Legal Rechtsanwälte advises in IT and copyright law.
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