Clifford Chance

Written in collaboration with Jaume Sanchiz.

In the Sony v. Datel Judgment (C‑159/23), the CJEU clarified the copyright protection of computer programs and concluded that the content of variables used to run a computer program cannot be protected under copyright law.

Introduction

In its Judgment in Sony Computer Entertainment Europe Ltd ("Sony") v. Datel Design and Development Ltd ("Datel") (C‑159/23) (the "Judgment"), the Court of Justice of the European Union ("CJEU") analysed the scope of protection of computer programs under copyright law in a dispute concerning video games and a 'cheat software' thereof.

The controversy that gives rise to the dispute is, essentially, whether altering the content of the variables stored in the random-access memory (RAM) of a computer (or console) which are used by a computer program in its running falls within the scope of the protection conferred by Directive 2009/24 on the legal protection of computer programs ("Directive 2009/24").

Although it may, at first glance, appear to be a very specific situation, 'the implications of this case go beyond the narrow confines of video games', as the Advocate General M. Szpunar noted, since it impacts not only video games but any sort of software/computer program.

Background facts of the case

The dispute between Sony and Datel began over 12 years ago. Sony, the company well known for, among others, commercialising the PlayStation video game console as well as video games for that console, claimed that Datel should be prohibited from marketing certain software intended to run alongside Sony's video games.

Sony alleged, inter alia, that Datel sold devices and software that enabled users to alter the software of their games by allowing players to remove the gameplay restrictions of PlayStation's video games and providing them with game options not provided at that stage of the game. For example, Datel's software allowed the removal of all restrictions in one of Sony's games on the use of the "booster" function, and allowed players to choose not only some of the drivers available, but also those which would otherwise be unlocked only once the player obtained a certain number of points.

Sony claimed, inter alia, that by means of Datel's devices and software, users could alter the video game's underlying software in a manner contrary to copyright, given that Article 4(1)(b) of Directive 2009/24/EC provides protection against "any other alteration of a computer program".

Conversely, Datel sustained that its software did not copy nor alter the code of Sony's video games, but merely modified the values of temporary variables which, while the game was running, the video game stored in the PlayStation console's RAM. Therefore, what Datel's software modified was not the software's code but the variables of the game: the game was the same but the user could benefit from an upgraded experience by having access to better game conditions than those actually earned by the player.

In 2012, the Hamburg Regional Court partially upheld Sony's claims. However, the Hamburg Higher Regional Court dismissed Sony's action in its entirety. This judgment was further appealed to the Bundesgerichtshof (Germany's Federal Court of Justice). And in this context, the Bundesgerichtshof referred the following questions to the CJEU for a preliminary ruling:

"(1) Is there an interference with the protection afforded to a computer program under Article 1(1) to (3) of Directive [2009/24] in the case where it is not the object code or the source code of a computer program, or the reproduction thereof, that is changed, but instead another program running at the same time as the protected computer program changes the content of variables which the protected computer program has transferred to the [RAM] and uses in the running of the program?

(2) Is an alteration within the meaning of Article 4(1)(b) of Directive [2009/24] present in the case where it is not the object code or the source code of a computer program, or the reproduction thereof, that is changed, but instead another program running at the same time as the protected computer program changes the content of variables which the protected computer program has transferred to the [RAM] and uses in the running of the program?"

Thus, in essence, the CJEU was asked to decide, when there is no change to a program's (source or object) code or its reproduction, but another computer program running at the same time as the protected computer program (i.e., the video game), whether (i) changes to the content of variables which the protected computer program has transferred to the RAM and uses in the running of that program affect the scope of protection of a computer program; and whether (ii) the concept of "alteration" of Article 4(1)(b) of Directive 2009/24/EC covers  the described situation, meaning that copyright infringement would exist.

Brief technical considerations

Before delving into the CJEU's decision, it may be helpful, for clarification purposes, to briefly touch on (i) what exactly the '"content of the variables" that were changed by Datel is; and (ii) why they matter.

In this context, a "variable" refers to a location in a computer's memory to which data is transferred, and from which it is retrieved, by a computer program. In the case at hand, the video game software defined the parameters of the variable to be accessed (e.g., location in the memory, its name, the data that can be transferred, etc.). Such parameters of a computer program do not change while the program is running; however, its content can change depending on the information that the software receives, for example from the user.

The feature of Datel's software that sparked this controversy essentially allowed users to modify the content of the variables stored in the computer memory and accessed by Sony's video games based on the parameters defined in their code. Therefore, although Datel's software did not actually modify the source code of Sony's video games, the software under dispute effectively altered how Sony's video games ran, as well as the gamer experience.

To illustrate the above, just imagine yourself playing Mario Kart and driving as Donkey Kong. While racing, your video game vehicle has a speed that has a value (i.e., the content of the variable) of between 0 and 10, depending on several factors, such as the acceleration value of the car, the weight of the character driving the vehicle, etc. Essentially, Datel's disputed feature would allow you, as user, to alter the speed value without taking into consideration those factors imposed by the game's rules or developers.

Findings of the CJEU

Taking the above into consideration, the CJEU replied to the questions referred to it, by (i) delimiting the scope of protection of computer programs under Directive 2009/24; and (ii) analysing whether the content of the variables stored and used by a computer program falls within the scope of copyright protection.

First, the CJEU reemphasised that, with respect to computer programs, Directive 2009/24 protects the "expression in any form" of a computer program only, provided always that it is original. In other words, copyright protection only applies to the expression of a computer program which permits its reproduction in different computer languages, such as the source code and the object code. Therefore, as the CJEU summarised in paragraph 38 of the Judgment, the protection guaranteed by Directive 2009/24 is limited to the intellectual creation as it is reflected in the text of the source code and object code, without being extended to (i) the ideas and principles which underlie such computer program, or (ii) other elements of the computer program that cannot be used to reproduce such program, such as, generally speaking, the graphic user interface.

The CJEU goes on to state that the content of the variables is merely an element of Sony's computer program by means of which users make use of the program's features. And since the content of such variables does not enable the reproduction of either the source code or the object code of the computer program (and since Datel's software does not alter either the object code, the source code or the internal structure and organisation of Sony's software), the CJEU concludes that the content of the variables does not fall within the scope of protection conferred by Directive 2009/24. And therefore, Sony's copyright is not infringed.

All in all, the Sony v. Datel case reinforces the CJEU's approach – previously set out in case C-309/09; Bezpečnostní softwarová asociace – according to which only the (source or the object) code, as a form of expression of a program  – and no other elements –  deserve copyright protection.