Sony Loses as CJEU Rules Datel’s RAM Data ‘Cheat’ Non-Copyright Infringing

The Court of Justice of the European Union has handed a historic victory to Datel, the company behind video game cheat device Action Replay. For well over a decade, Sony argued that modification of game generated code amounted to copyright infringement. The CJEU judgment holds that there was no violation of Sony's rights, since Action Replay ran alongside Sony's game code, only modifying values in RAM while leaving object code untouched.

 The legal battle in Germany between Sony Entertainment Interactive and cheat cartridge seller Datel has been ongoing for well over a decade.

Sony had hoped to end sales of Datel’s Action Replay PSP and Tilt FX. These products enabled users of Sony’s PSP console to modify gameplay by tweaking code, thereby obtaining extra ‘lives’ and similar ‘cheat’ features.

According to Sony, Datel’s software intervened in the ‘program flow’ of its games and, by changing the flow, Sony’s copyrighted game code was modified. Therefore, the software creating an unauthorized derivative work.

In 2012, the Landgericht Hamburg (Regional Court) partially upheld Sony’s claims. In 2021, the Oberlandesgericht Hamburg (Higher Regional Court) overturned the lower court’s judgment, dismissing Sony’s action in its entirety. Sony’s subsequent appeal to the Bundesgerichtshof (Federal Court of Justice) led to a stay in proceedings while questions were referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling.

Matter Begins to Turn in Datel’s Favor

On April 25, 2024, Advocate General Szpunar delivered his opinion on the case. It noted that Action Replay modifies variables held in the RAM of Sony’s PSP console during gameplay. However, these values are not elements of Sony’s copyrighted code, but code produced by a console while running Sony’s code.

Source code and object code receive legal protection under Directive 2009/24 because both meet the criterion of originality set out in Article 1(3). Variables in RAM, on the other hand, do not satisfy the criterion of originality; they’re generated by a computer and did not even exist when the game code was created and copyrighted.

At this point, Datel’s chances of coming out on top looked healthier than ever. However, while supportive of Datel’s case, AG Szpunar’s opinion was non-binding and the CJEU still had the freedom to disregard it.

CJEU Decision Best Possible News For Datel

On Wednesday, the CJEU issued its judgment in the case, finding in favor of Datel. The decision clarifies that the content of variable data modified by Datel’s products, falls beyond the scope of protection afforded to computer programs under the Directive.

“The Court finds that the content of the variable data transferred by a computer program to the RAM of a computer and used by that program in its running does not fall within the protection specifically conferred by that directive, in so far as that content does not enable such a program to be reproduced or subsequently created,” the CJEU’s summary notes.

“The directive protects only the intellectual creation as it is reflected in the text of the computer program’s source code and object code. On the other hand, the directive does not protect the functionalities of the program or the elements by means of which users make use of such functionalities, unless they allow that program to be reproduced or subsequent created.”

As a result, the Court’s answer in response to the questions referred by Germany’s Federal Court, reads as follows:

Article 1(1) to (3) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the content of the variable data transferred by a protected computer program to the RAM of a computer and used by that program in its running does not fall within the protection conferred by that directive, in so far as that content does not enable such a program to be reproduced or subsequently created.

For additional clarity, the CJEU clearly states that under the specific circumstances of this case, Sony cannot prevent Datel marketing its cheat devices/software.

The Directive on the legal protection of computer programs does not allow the holder of that protection to prohibit the marketing by a third party of software which merely changes variables transferred temporarily to game console’s RAM.

The CJEU judgment clarifies the limits of copyright protection in respect of source/object code, while highlighting an area of freedom (subject to boundaries and conditions) in which data generated by software can be modified without triggering a lawsuit.

What this victory means for Datel after all this time isn’t clear. The company is still selling interesting products, including on Amazon where its CatShark product aims to reduce the catalytic converter theft epidemic continuing to plague the UK.

For those familiar with Datel products, the company’s WiFi Commander retains the essence and traditions of old. Worn on the wrist and looking much like a regular watch, this ‘WiFi management’ tool is reportedly capable of launching a deauth attack on nearby wireless networks. For legal reasons, strictly your own, of course.

The CJEU’s decision, AG’s opinion, and other documents relating to the referral, are available here

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