Top EU Court’s Advisor Explains Why Video Game Cheats Are Not Copyright Infringement
One of the reasons that today’s copyright is such a bad fit for the modern digital world is that its roots lie deep in 18th-century law and analogue objects like books. This fact has created a kind of legislative drag that means copyright is always decades behind the latest technological developments. A case in point is the phenomenon of “cheating” in video games. Despite the negative connotations of the name, “cheating” has a remarkably rich and interesting culture. It is about extending the capabilities of a computer game, often through add-on software. That, of course, raises the hackles of companies that sell computer game software; for them, complete control over what a player does is paramount. An important legal dispute in this area, discussed on the Lexology blog, involves 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.
Since it was filed, Sony’s legal action has been bouncing around the German legal system. Sony won initially, but that decision was later overturned. The case then passed up to the German Federal Court of Justice. Recognizing that the dispute raised important questions about copyright protection, the federal court requested an interpretation from the EU’s top legal body, the Court of Justice of the European Union (CJEU). As is usual, a preliminary opinion has been offered by one of the CJEU’s Advocates General, in this case Maciej Szpunar. Such opinions are not binding, but often indicate what the court’s thinking might be. The Lexology blog reports that Szpunar made the following important comments:
[His] 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.
If the CJEU agrees with this line of thinking, it would lay down a new and extremely important aspect of copyright in the digital context. It would create a distinction between the software code, whose copyright belongs to its author, and the temporary data that is produced by the user when running that code, which is not. As the Lexology post points out, that could have immediate ramifications for fields outside gaming. For example, it might confirm that plug-ins blocking ads, over which a fierce battle has been waged by a publisher against the idea, as we reported two years ago, would be perfectly legal. More generally:
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.
Implicitly, what that comment is saying is that currently copyright is an obstacle to innovation and user customization in software. Let’s hope the CJEU agrees with its Advocate General’s opinion, and sets people’s creativity free in this area.
Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to Walled Culture.