Traple Konarski Podrecki & Partners | View firm profile
In the world of gaming, the legality of various types of software used for cheating or “enhancing” the gaming experience (usually in the form of plug-ins) continues to be a topic of debate.In a recent legal opinion (delivered on 25 April, 2024, in case C‑159/23 Sony Computer Entertainment Europe Ltd vs Datel Design and Development Ltd, Datel Direct Ltd), Maciej Szpunar, Advocate General at the CJEU, stated that creating such plugins does not violate game developers’ copyright. This important clarification could also have a negative side effect, as it might encourage further innovation and investment in gaming “enhancements” and any other software facing similar legal issues, potentially impacting the entire IT industry.
The issue came to light following a long-running dispute between Sony Computer Entertainment Europe and Datel Design and Development. Datel’s plugin enabled players to access a separate menu to skip difficult game sections on Sony’s consoles. This plugin interacted with the game’s variable data stored temporarily in the console’s RAM, avoiding any modification to the game’s original code.
Initially, Sony secured a favorable verdict when a German regional court found that Datel had violated copyright laws. However, this decision was later overturned. The case eventually reached the German Federal Court of Justice, which requested an interpretation from the CJEU on the extent of copyright protection in such instances.
Advocate General Szpunar’s opinion asserts that manipulating transient data generated during gameplay through third-party software does not infringe copyright according to the EU’s Computer Programs Directive. This distinction between protecting a game’s code and the temporary data it generates is a very significant one for all developers of game-enhancing tools.
The Advocate General also highlighted that the variable values in question are not original works of the game’s author but result from player interactions and game progression, which are unpredictable and dynamic. Since they depend on unforeseeable factors, these values lie beyond the author’s creative control. This viewpoint might also influence the legal stance on other software tools, such as ad-blocking plugins, which have faced similar legal challenges.
If the CJEU adopts the Advocate General’s opinion, it could encourage the development and use of game plugins that enhance the player experience without violating copyright laws, potentially fostering greater innovation and user customization in gaming and other software sectors. On the other hand, it could increase the proliferation of cheat software, the use of which is the scourge of many games. This case not only highlights the challenges of adapting copyright laws to modern digital realities, but also underscores the potential for legal systems to support creative solutions in software development.