European Court of Justice rules against Sony in lawsuit over Action Replay cheats

The European Court of Justice has ruled in favour of UK peripherals firm Datel as it faces a lawsuit from Sony over its cheat software Action Replay – but legal experts tell GamesIndustry.biz that third-party software used for cheating, modding and so on will still be "unlawful in many cases."

In a case that dates back to 2012, Sony sued Datel in German courts of its Action Replay for PlayStation Portable, using examples of the cheats this product provides for titles such as MotorStorm: Arctic Edge (for instance, infinite boosts).

The platform holder claimed Action Replay was infringing on its rights to authorise any alterations to its game software, and sought protection under the European Parliament's 2009 directive of the legal protection of computer programs.

According to a release by the European Court of Justice, the German Federal Court of Justice observed that Action Replay "does not change or reproduce either the object code, the source code, or the internal structure and organisation of Sony's software."

Instead, it "merely changes the content of the variables temporarily transferred by Sony’s games to the console’s RAM, which are used during the running of the game."

The German courts called on the European Court of Justice to weigh in on this interpretation of the 2009 directive, and the latter agreed.

"The Court finds that the content of the variable data transferred by a computer program to the RAM of a computer and used by that program in its running does not fall within the protection specifically conferred by that directive, in so far as that content does not enable such a program to be reproduced or subsequently created," the statement reads.

Sony had called for Datel to be forbidden from marketing its Action Replay products, and requested compensation for the losses it allegedly suffered. However, GamesMarkt reports that, as a result of the European Court's decision, the case will now be closed under German law.

Speaking to GamesIndustry.biz, ADVANT Beiten partner Dr. Andreas Lober said: "No doubt developers and publishers of cheat software will rejoice. [But] they should not be too enthusiastic about this judgement.

"For procedural reasons, the Court only ruled on one single ground: whether merely changing variables of a computer program qualified as an unauthorized modification. When publishers of multiplayer games act against providers of cheat software today, they typically rely on other legal instruments which are not affected by this decision, e.g. breach of EULAs and unfair competition."

Similarly, Harbottle & Lewis' partner and co-head of its Interactive Entertainment group Kostyantyn Lobov says that this ruling relates to one very specific point; namely, whether you can copyright variables that a temporarily stored in a device's RAM, as opposed to copyright in the code of the game itself.

"What's important to remember is that there are typically a number of reasons why the making, promotion, sale and use of third party software which interacts with the code of a game (and ultimately affects gameplay) could be unlawful – this is just one of them," he said.

"This decision does nothing, for example, to change the fact that the development, distribution and use of such software often involves other acts of copyright infringement and the breach of the game’s Terms of Use. The enforceability of other intellectual property rights, such as utility patents and trade marks, is also unaffected by this decision.

"The bottom line is that third party software used for cheating, modding or otherwise tampering with a game will still be unlawful in many cases, and rights holders have a number of tools at their disposal to deal with it."

Cheat software has evolved considerably since the release of Action Replay and the PlayStation Portable. Bungie won a $4.3 million lawsuit against cheat provider AimJunkies earlier this year, while Activision was awarded $14.4 million in damages from its legal battle with EngineOwning.