After more than a decade of legal battles in Germany, key questions in Sony’s lawsuit against cheat device maker Datel were referred last year to Europe’s highest court. Should the Court of Justice’s judgment favour Sony, the implications could reach far beyond a device designed for a console discontinued a decade ago. For the broader good, it’s a case that Sony must lose, and for once, things are looking positive in a copyright lawsuit.
When the home video gaming market began with affordable hardware in the early 1980s, Sony’s lawsuit against Datel would have seemed outrageous. It was a time of innovation and pushing hardware to its limits.
Initial Victories and Shifting Momentum
While the software is rightly protected by copyright law, Sony seeks a ruling against Datel that would ban the modification of variables generated by software that only exist in RAM and are not part of the copyrighted source code. Datel’s software modified values in memory to change gameplay in games like Motorstorm Arctic Edge.
In January 2012, the Hamburg Regional Court ruled largely in favor of Sony, stating that Datel’s software interfered with the ‘program flow’ of Sony’s games, thus creating a derivative of Sony’s copyrighted code. This decision was overturned on appeal in 2021, and the case was dismissed. Sony appealed to the Federal Court of Justice, which then referred key questions to the Court of Justice of the European Union for a preliminary ruling.
If Sony prevails and the protection under the 2009 Computer Programs Directive extends to transient variables in RAM, users of such tweaking software would be direct infringers, and creators like Datel could be secondarily liable.
Advocate General’s Favorable Opinion
Advocate General Szpunar’s opinion, while not binding, is a significant indicator of the CJEU’s potential direction. Szpunar’s conclusions are legally sound, well-researched, and logically robust.
“The value of the variables is not an element of a computer program’s code. They are merely data, external to the code, which the computer produces and reuses when running the program,” Szpunar states. These data are generated only during the program’s runtime and cannot enable the program’s reproduction.
Non-Creative Variables
Directive 2009/24’s protection is limited to source and object code, which meet the originality criterion. Variables in RAM do not. AG Szpunar emphasizes that these variables result from game progress and player behavior, not the author’s intellectual creation.
“While the author designs the variable categories and rules for their values, the values themselves depend on unforeseeable factors like player behavior, escaping the author’s creative control,” Szpunar explains. Therefore, this value cannot be protected by copyright.
Variables, being “transitory, temporary, and provisional,” do not meet the threshold for copyright protection due to their lack of precision and objectivity.
AG Szpunar’s Conclusion
AG Szpunar concludes that Article 1(1) to (3) of Directive 2009/24/EC must be interpreted to mean that the protection does not extend to variables transferred to RAM by a protected program, where another program changes this content without altering the object or source code.
