Game over: Cheat software “Action Replay” does not infringe game publisher’s copyrights

1. Facts and technical background

The defendant, a British company called Datel, develops, produces and distributes the programme in question, Action Replay. Action Replay is cheat software specifically designed for video game consoles such as Game Boy, Nintendo DS, PlayStation 2 and PlayStation Portable (PSP). It allows users to manipulate the flow of video games by overwriting variables in the console's memory. This allows players to bypass the limitations of the game, for example by unlocking certain characters earlier and independently of the game’s progression, or by using certain features (such as a turbo function in a racing game) indefinitely.

Action Replay runs as a separate programme in the background on the console, in this case the PSP, and is independent of the game being played. The player can activate the desired cheats via a separate menu. The actual game software and its programme commands remain unchanged. However, the data specifically stored in the RAM by the game software and relevant to the gameplay will be altered, thus interfering with the gaming experience and the gameplay intended by the game developer.

Sony, the manufacturer of Playstation consoles, including the PSP (until 2014), and associated games, considered this to be an infringement of its copyright in its games and brought a claim against Datel for injunctive relief, disclosure and damages.

2. The legal dispute and the ECJ's decision

At the heart of the dispute was the question of whether the game software - which is undoubtedly protected by copyright as a “computer program” - had been “modified” within the meaning of Section 69c no. 2 of the German Copyright Act (UrhG). The defendant's position was that the software did not make any changes to the game code itself, but only to the variables stored in the console's RAM.

At first instance, the Hamburg Regional Court (judgment of 24 January 2012, case no. 310 O 199/10) largely upheld Sony’s claim. The term “modification” in Section 69c no. 2 UrhG was to be understood broadly and covered any change to a computer program. It was not necessary to change the substance of the program, but it was sufficient to interfere with the running of the program by means of external commands.

However, the appeal was dismissed by the Higher Regional Court of Hamburg (judgement of 7 October 2021, case no. 5 U 23/12). It essentially based its decision on the fact that the substance of the program was not changed, nor was a modified copy of the software created, but only its execution was affected. This did not fall under the protection of Section 69a UrhG and was therefore not protected against external interference by Section 69c UrhG.

The ensuing appeal proceedings were stayed by the German Federal Supreme Court (BGH) in a decision of 23 February 2023 (case no. I ZR 157/21). As Sections 69a et seq. UrhG are based on Directive 2009/24/EC (“Computer Programs Directive”), the BGH referred the decisive questions of interpretation to the ECJ. In particular, the BGH wanted to know whether the protection afforded to a computer program is infringed if it is not the object code or source code of a computer program, nor the reproduction thereof, that is modified, but rather a program running in parallel that modifies the contents of variables that the program has transferred to the RAM and uses in the running of the program.

In its judgment of 17 October 2024, case C-159/23, the ECJ has essentially confirmed the legal opinion of the Higher Regional Court of Hamburg and clarified that the copyright protection of computer programs under Directive 2009/24/EC is limited to the intellectual creation reflected in the text of the source and object code, i.e. as a sequence of instructions according to which the computer is to perform the tasks intended by the author of the program. Consequently, the scope of protection of a computer program does not extend to the content of variables temporarily transferred by the game software into the RAM of the console. The modification of these variables, with the result that the game runs on the basis of the externally modified variables, is therefore not objectionable under copyright law.

The case will now go back to the BGH, which will have to decide in the light of the ECJ’s legal opinion.

3. Analysis and practical implications

Due to several generational changes in the games industry since 2010, when the case arose, the PSP and the cheat software in question are likely to be of interest only to a niche audience. Nevertheless, the ECJ’s decision and its abstract statements have some significance and relevance for software developers beyond this individual case and the games industry.

For developers of cheat or other modification software, the ruling provides an important clarification: temporary modifications that exclusively affect variables in the RAM and do not change the source code of a program are not objectionable under copyright law. Nevertheless, caution is advised, as the ruling does not give the green light to cheat software as a whole. Rather, the exact functionality of the software in question must always be examined on a case-by-case basis. Furthermore, the decision should not obscure the fact that cheat software can also be critical under unfair competition law, as the BGH already stated in its “World of Warcraft II” decision.

For game and software developers as well as other right holders, however, the ruling poses a challenge, as the protection of the integrity of their games under copyright law is limited. If no sufficient technical protection against the manipulation of data in RAM or other anti-cheating mechanisms can be implemented, the basis for claims outside of copyright law must be examined in any case.