The last time this blog talked about an IP enforcement case to which Sony was a party was 12 years ago when hundreds of thousands of PlayStations were seized in the Netherlands over a patent infringement allegation by LG Electronics. More recently, Sony has been mentioned as the only vocal complainer over Microsoft's acquisition of Activision Blizzard King (most recent blog post, tweet about latest court filing by Microsoft, Twitter thread flagging errors in GamesIndustry.biz article previously identified by two of my followers, tweet about likely Chinese approval, tweet about European game developers' support, Microsoft's president's latest tweet about Nintendo deal).
Now Sony is the plaintiff in the most interesting software copyright case that has been referred to the European Court of Justice since SAS (decided in 2012). On Thursday, the Bundesgerichtshof (Federal Court of Justice of Germany) announced (in German) its decision to make a request for preliminary ruling--briefly called preliminary reference--to the European Court of Justice (ECJ). Yesterday, Graf von Westphalen--the law firm that represents the defendant, Datel Group--issued a press release as well (in German, too), from which I learned the names of the parties, which the court itself was not allowed to reveal.
In the IP law community, this case will, however, be widely referred to as Sony v. Datel. And the question is whether cheat software--that allows video gamers to make faster progress or unlock features in games through technical manipulation--infringes copyright law.
These are the questions referred to the top EU court (in German, plus my unofficial translation):
1. Wird in den Schutzbereich eines Computerprogramms nach Art. 1 Abs. 1 bis 3 der Richtlinie 2009/24/EG eingegriffen, wenn nicht der Objekt- oder Quellcode eines Computerprogramms oder dessen Vervielfältigung verändert wird, sondern ein gleichzeitig mit dem geschützten Computerprogramm ablaufendes anderes Programm den Inhalt von Variablen verändert, die das geschützte Computerprogramm im Arbeitsspeicher angelegt hat und im Ablauf des Programms verwendet?
2. Liegt eine Umarbeitung im Sinne von Art. 4 Abs. 1 Buchst. b der Richtlinie 2009/24/EG vor, wenn nicht der Objekt- oder Quellcode eines Computerprogramms oder dessen Vervielfältigung verändert wird, sondern ein gleichzeitig mit dem geschützten Computerprogramm ablaufendes anderes Programm den Inhalt von Variablen verändert, die das geschützte Computerprogramm im Arbeitsspeicher angelegt hat und im Ablauf des Programms verwendet?
Unofficial translation by FOSS Patents:
1. Is the object of [copyright] protection of a computer program under Art. 1 (1) to (3) of EU directive 2009/24/EC ["the Software Directive"] encroached if neither the object code nor the source code of a computer program or a copy thereof is altered, but a different computer program running separately with the protected computer program modifies the values of variables stored in memory by the protected computer program and used by it in the execution of the program?
2. Is it an alteration within the meaning of Art. 4 (1) (b) of the Software Directive if [what follows now is the same conditional subclause as in question 1] neither the object code nor the source code of a computer program or a copy thereof is altered, but a different computer program running separately with the protected computer program modifies the values of variables stored in memory by the protected computer program and used by it in the execution of the program?
To understand the technical background of the dispute, it's helpful to look at how long this litigation has been pending: well over a decade. In January 2012, the Hamburg Regional Court sided with Sony, but was overruled in October 2021 by the Hamburg Higher Regional Court. This is an unusually long time almost ten years between the two decisions, and from the publicly available information I cannot deduce the reason for the delay. Anyway, the case was then appealed further (by Sony) to the Federal Court of Justice (case no. I ZR 157/21, caption: Action Replay).
The Wikipedia page about Datel indicates that the company has a long history of making cheat devices and was sued by Sony as early as in the 1990s. I suspect that the case that has now been put before the ECJ involves a product called Lite Blue Tool, which according to Wikipedia "caused a Sony PlayStation Portable (PSP) to enter into Jigkick or Factory programming mode, allowing the execution of the boot code from a removable storage."
It is extremely difficult to execute unauthorized code on today's PlayStations. It's like with the iPhone: one has to "jailbreak" (or "mod") the device.
Those practical hurdles don't render the legal question here irrelevant. Cheat programs that manipulate games are hated by the industry and by honest players.
I don't want to be a hypocrite: I did something similar in the 1980s on Commodore home computers. There was a BASIC command named POKE that made it possible to modify the value stored in memory (POKE address, value). Plenty of cheat codes were known at the time, and for a couple of games I looked into the program code (using what was called a monitor--a program that displays machine language code in a more legible form) to find out where, for instance, the number of lives was stored so I could just increase it from, say, 3 to 255 (maximum value of a byte). And back then it was even done prior to execution (those were single-tasking devices), meaning that what we altered was the copyrighted work that we had downloaded.
While I understand Sony's desire to combat cheating with copyright law, it may not be the best vehicle. It would take DMCA-style legislation (even going beyond the DMCA in my opinion), but the ECJ may just decide to legislate from the bench as it did when it held website operators liable for copyright infringements on third-party websites they link to (good for right holders) or when it declared a programming language unprotectable regardless of the level of creativity (SAS Institute v. World Programming) (bad for right holders).
Copyright has always been a suboptimal--but still pretty useful--means of protecting computer programs. In practice, it's really a mix now of various intellectual property rights that software makers rely on: copyright, patents, trade secrets (particularly in the age of cloud computing), and trademarks.
Copyright is meant to protect creative expression, such as art and literature. The fact that it extends not only to source code (which comes with legible variable and function names) but also to object code (which is derived from source code, but typically stripped of such clearly expressive elements) is a bit of a stretch, but justifiable because it's still the same structure, sequence, and organization as the source code. However, technical functionality--whatever happens at runtime--is the prerogative of patent law. Art. 1 of the EU Software Directive says that it "shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works" and "[p]rotection ... shall apply to the expression in any form of a computer program." The directive clearly says:
"Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive."
Art. 4 of the EU Software Directive relates to restricted acts, meaning acts for which one has to be the creator or needs a license from the creator. Of the three types of restricted acts, the first (reproduction) and third (distribution) are not at issue. It's the one in the middle that matters:
"(b) the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program;"
The passage that could help Sony here is "any other alteration of a computer program"--though we are talking about an alteration of an in-memory value as opposed to the protected program code, and the final part protects "the rights of the person who alters the program" (which could include the right to just change values stored in memory after you've paid for the device and the software).
If the ECJ focuses on the effect, Sony has a strong case: if, for example, a runner game puts obstacles in the way of a gamer and a cheat program just writes zeroes into the memory section where the data points for those obstacles (type of obstacle and location) are placed, you get the same effect as if you removed the obstacles by altering the program code that displays them, checks for collisions, or penalizes players for hitting them: the obstacles don't appear or at least don't affect the player. But we're talking about runtime technical effects while copyright is about design time and more static than patent law. I believe the appeals court in Hamburg was right when it held that it would have to take something more than just modifying variables in memory to perform a copyright infringement in the sense of an alteration of a copyrighted work itself. But there is no court above the ECJ, and like in the link liability case I mentioned further above, it may again take an expansive view on the scope of copyright protection.
