After more than a decade of litigation in Germany, key questions in Sony’s lawsuit against cheat device maker Datel were referred last year to Europe’s highest court. If the Court of Justice rules in Sony’s favour, the implications could extend far beyond a device designed for a game console discontinued ten years ago. For the greater good, Sony must lose this case, and for once, the direction of the copyright lawsuit seems promising.
When the home video gaming market started in the early 1980s with more affordable hardware, Sony’s lawsuit against Datel would have seemed absurd. It was an era of innovation, pushing hardware beyond its expected limits.
Initial Wins and Changing Trends
Software rightly receives copyright protection, but Sony seeks a ruling against Datel that would outlaw the modification of variables generated by software existing only in RAM, 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 largely ruled in favour of Sony, stating that Datel’s software intervened in 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 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 held secondarily liable.
Advocate General’s Key Opinion
Advocate General Szpunar’s opinion, though not binding, suggests a significant direction for the CJEU. 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, meeting the originality criterion. Variables in RAM do not. AG Szpunar points out that these variables result from game progress and player behaviour, not the author’s intellectual creation.
“The author designs the variable categories and rules for their values, but the values themselves depend on unforeseeable factors like player behaviour, escaping the author’s creative control,” Szpunar explains. Thus, this value cannot be protected by copyright.
Variables, being “transitory, temporary, and provisional,” fail to 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 should 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. Sony’s Legal Struggle with Datel: Heading to Europe’s Highest Court