Sony vs. Datel: Implications of Europe’s Highest Court Ruling

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’s judgment ultimately sides with Sony, the implications could extend far beyond a device designed for a game console discontinued ten years ago. For the greater good, it’s a case that Sony must lose, and for once in a copyright lawsuit, things are looking promising.

When today’s home video gaming market began in the early 1980s with more affordable hardware, the details of Sony’s lawsuit against Datel would’ve seemed absurd. It was a time of innovation, where pushing limited hardware capabilities to exceed expectations was celebrated.

Sony’s Early Victory and the Shift in Momentum

Software rightly receives protection under copyright law, but Sony seeks a ruling against Datel that would outlaw the modification of variables generated by software that exist only in RAM and form no part of the underlying copyrighted source code. Datel’s software ran alongside games like Motorstorm Arctic Edge, modifying values in memory to alter gameplay.

In January 2012, the Hamburg Regional Court largely ruled in favor of Sony, stating that Datel’s software intervened in the ‘program flow’ of Sony’s games, thus modifying the original code to create a derivative of Sony’s copyrighted game code. However, this decision was overturned on appeal in 2021, and the case was dismissed. Sony then 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’s view prevails and the protection software enjoys under the 2009 Computer Programs Directive extends to transient variables in RAM, users of tweaking software would become direct infringers under copyright law, and creators like Datel could be held secondarily liable.

Advocate General’s Opinion Paves the Way

Advocate General Szpunar’s published opinion is not binding, and the CJEU could ultimately take its own path. However, Szpunar’s conclusions are legally sound, impeccably researched, and logically flawless.

“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,” he writes. These data are generated only while the program is running and cannot enable the program – or even a part of it – to be reproduced.

Variables Are Not Creative Works

According to case law, the protection conferred by Directive 2009/24 is limited to source code and object code, which satisfy the criterion of originality set out in Article 1(3). Variables in RAM do not meet this criterion. AG Szpunar points out that these variables are the result of progress in the game and the player’s behavior, not the author’s intellectual creation.

“While the author designed the categories of the variables and the rules for their value determination, the value itself escapes the author’s creative control, as it depends on unforeseeable factors like the player’s behavior,” Szpunar explains. Consequently, this value cannot enjoy copyright protection.

Variables, being “transitory, temporary, and provisional,” fail to meet the threshold for copyright protection as they cannot be identified with “sufficient precision and objectivity.”

AG Szpunar’s Conclusion

AG Szpunar concludes that Article 1(1) to (3) of Directive 2009/24/EC must be interpreted to mean that the protection does not extend to the content of variables transferred to RAM by a protected computer program, in situations where another program changes this content without altering the object or source code.