The Court of Justice of the EU recently issued a ruling regarding the scope of legal protection for computer programs under Directive 2009/24/EC, which lays the foundation for copyright in software within the EU. This question was raised by the Bundesgerichtshof (Federal Supreme Court of Civil and Criminal Matters, Germany).

In this case, Sony Computer Entertainment Europe Ltd (hereinafter, Sony) sued Datel Design and Development Ltd (hereinafter, Datel), arguing that Datel had modified variables in the game “MotorStorm: Arctic Edge” using an external program without authorization on the PSP console, altering its behavior without modifying the source or object code. Sony claimed this alteration violated the legal protection for computer programs, as it constituted an unauthorized transformation of the program.

After restarting the console, the user could access an additional menu called Action Replay, offering gameplay options not anticipated by Sony. To use this program, a USB memory stick was required, which allowed the interface setup and removed certain limitations. For this reason, Sony sought to stop the marketing of the program and demanded compensation for the damage caused, claiming it represented an unauthorized transformation of the original code.

The Regional Court of Hamburg partially upheld Sony’s claims, but this judgment was appealed and modified by the Higher Regional Court of Hamburg. Sony filed a cassation appeal against this decision before the German Federal Supreme Court, which presented the following preliminary questions to the CJEU:

  1. Does modifying variables stored in a program’s memory, without affecting the source or object code, infringe copyright under Directive 2009/24? Do these variable data infringe intellectual property rights, or is only the literal expression of the program (Source Code and Object Code) protected?
  2. Does the concept of “transformation,” under Directive 2009/24, include modification of memory variables?

First Preliminary Question: Should the Directive be interpreted as protecting the variable data stored by a computer program?

The CJEU concluded that the protection of computer programs under the Directive is limited to the literal expression of the program, i.e., its source and object code, and does not extend to the temporary variable data a program stores in local memory during execution. According to the Directive, “transformation” implies a modification of the code, not merely a manipulation of data in memory. This interpretation aligns with the TRIPS Agreement and the Berne Convention, which protect the literal expression of code, not the underlying ideas or principles.

Therefore, in this case, Datel’s program installs on the user’s console and runs simultaneously with the game software, modifying only the temporary variables in memory, without changing the source or object code. Thus, it is not considered a protected form of expression under Article 1(2) of Directive 2009/24, as it does not reproduce the program or any part of it, but instead operates alongside it.

Second Preliminary Question: The answer to this question is resolved by the first, as Article 1 of Directive 2009/24/EC should be interpreted to mean that it does not protect variable data stored in the local memory of a computer and used by a program during its execution, as long as they do not allow reproduction or execution of the program.

JUDGMENT OF THE COURT OF JUSTICE (First Chamber), of October 17, 2024 – Case C 159/23