Sony markets PlayStation videogame consoles and games for those consoles. Until 2014, it sold the PlayStation Portable console and the game ‘MotorStorm: Arctic Edge’. Sony filed a lawsuit before the German courts against Datel, which offers software and a device compatible with that PlayStation that provides the users with additional 'cheating' game options. In case C-159/23, Sony claims that Datel’s products alter the software of its game, infringing the exclusive right to authorise such changes.
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#1. Variable data stored in a software’s RAM is not protected by copyright law
The CJEU ruled that the cheating software, which modified variable data stored in the game’s RAM, did not constitute copyright infringement as such variable data is not protected by copyright law. It has become apparent that data loaded into the working memory (RAM) of a computer program lacks copyright protection. Consequently, add-ons such as ad-blocking plugins or other software-enhancing tools that modify data in RAM or cache memory without altering the source code itself, can be considered authorised during the runtime of the software.
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#2. Impact on the IT industry: possible encouragement of innovation and investment in software enhancements
This decision sets an important precedent for software that interacts with, but does not replicate or modify, the internal structure of protected programs. Under copyright law, such software is permitted to operate. This clarification may have considerable implications for the IT industry, as it could encourage innovation and investment in software ‘enhancements’ while potentially discouraging rights holders from enforcement efforts.
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#3. ‘Any form’ of expression enjoys copyright protection
The ruling necessitates a closer examination of what is protected under EU copyright law concerning computer programs. The ‘expression in any form of a computer program’ is subject to protection, provided that it is original, signifying that it is the author's own intellectual creation. The concept of ‘expression in any form’ pertains to the elements that enable the program to be reproduced or subsequently created.
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#4. The source code and the object code of a computer program are ‘expressions in any form’
The source code and the object code, which are sets of instructions to perform a particular function or task on a computer, fall within this concept. Source code is written in a human-readable programming language, while object code is machine-readable, created through compilation from the source code. Programs are normally distributed as object code in trade. Preparatory design work that enables future program creation also falls under this concept.
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#5. Other protection regimes may apply
The ruling invites caution, as elements not covered by copyright could still be protected by other regimes like unfair competition, trademark, trade secrets, database copyright, or patents. While EU law expressly excludes computer programs from patent protection, they may qualify in certain strict conditions.
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