The matter at hand

Sony exclusively licenses PlayStation consoles and games in Europe. Until 2014, this included the PlayStationPortable (“PSP”) console and games for it, such as MotorStorm: Arctic Edge.

Datel develops, produces, and distributes software, especially products that work with Sony game consoles. This included Action Replay PSP software (which, after installation on the PSP, unlocked certain in-game options or removed in-game restrictions) and the Tilt FX device and its accompanying software (which allowed motion control of the PSP).

Datel’s software achieved this, not by changing the source code, object code or the internal structure and organisation of Sony’s software, but by running at the same time as the game software, and changing only the variables temporarily transferred by Sony’s games to the PSP console’s RAM, which are used during the running of the game, such that it runs on the basis of those variables to the changed content.

Sony sued Datel and claimed that Datel's devices and software allow PSP users to alter Sony's game software in a way that violates copyright law. Sony requested an injunction to stop the marketing of Datel's devices and software, and it also requested compensation for its alleged losses.

The referring court, the Bundesgerichtshof (Federal Court of Justice, Germany), raises the questions whether the sole manipulation of the content of variables which the protected computer program has transferred to the RAM of a device (which the protected computer program in turn uses in the running of the program) falls within the protection afforded to a computer program under Article 1(1) to (3) of the Computer Programs Directive, and whether such a change of the variable data stored in RAM amounts to an alteration within the meaning of Article 4(1)(b) of the Computer Programs Directive.

The Judgment of the ECJ

The ECJ answers the first question of the referring court in the negative, and states that there’s no need to answer the second question.

The ECJ notes that Article 1 of the Computer Programs Directive defines, according to its title, the object of protection of computer programs (paragraph 31), and that it is apparent from the wording of in particular paragraphs 2 and 3 of this article, that an ‘expression in any form’ of a computer program is protected, apart from ideas and principles which underlie its constituent elements, provided that such a program is original, in the sense that it is the ‘author’s own intellectual creation’ (paragraph 32).

The ECJ recalls that the ‘expression in any form’ of a computer program is that which permits reproduction in different computer languages, such as the source code and the object code (see BSA, C‑393/09) (paragraph 34).

On the other hand, the ECJ recalls that the graphic user interface of a computer program, which does not enable the reproduction of that program, but merely constitutes one element of that program by means of which users make use of the features of that program, does not constitute a form of expression of a computer program within the meaning of that provision (see also BSA, C‑393/09) (paragraph 35).

Likewise, the ECJ recalls that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program for the purposes of that provision. To accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development (see SAS Institute, C‑406/10) (paragraph 36).

The ECJ summarizes that it is apparent from the wording of Article 1(2) of the Computer Programs Directive, that the source code and the object code fall within the concept of ‘forms of expression’ of a computer program, within the meaning of that provision, since they allow that program to be reproduced or subsequently created, whereas other elements of that program, such as, inter alia, its functionalities, are not protected by that directive. Nor does that directive protect the elements by means of which users make use of such functionalities, without, however, allowing such reproduction or subsequent creation of the said program (paragraph 37). Article 1(3) of the Computer Programs Directive provides that protection is limited to the intellectual creation as it is reflected in the text of the source code and object code and, therefore, to the literal expression of the computer program in those codes (paragraph 38).

Datel’s software, in so far as it changes only the content of the variables transferred by a protected computer program to a computer’s RAM and used by that program in its running, does not, as such, enable that program or a part of it to be reproduced, but presupposes, on the contrary, that that program will be run at the same time. The ECJ holds that the content of the variables is therefore an element of the said program by means of which users make use of its features, which is not protected as a ‘form of expression’ of a computer program within the meaning of Article 1(2) of the Computer Programs Directive, which it is for the referring court to verify (paragraph 51).

The ECJ concludes 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 (paragraph 52).

Commentary

The ECJ followed AG Szpunar's opinion in its decision, affirming that altering transient variable data which is stored and used by a computer program, without changing the underlying source or object code of that computer program, does not fall within the scope of copyright protection offered by the Computer Programs Directive. The ECJ’s reasoning aligned with the AG's view, emphasizing that copyright protection extends to the expression of a program (its code), which enables reproduction, and not to the transient data it processes during runtime. Manipulating the latter, even if it affects the computer program’s output (in this case: the game experience), does not fall within the scope of protection of a computer program. At face value, this ruling is relevant for developers of so-called ‘mods’, ‘cheats’, and other software that interacts with copyrighted games in this way.