The holder of the protection that Directive 2009/24 on the legal protection of computer programs provides cannot prohibit the marketing by a third party of software which merely changes variables transferred temporarily to a game console’s RAM.
Sony markets PlayStation video game consoles as well as games for those consoles. Until 2014, it offered for sale, among other products, the PlayStation Portable console and the game ‘MotorStorm: Arctic Edge’. Sony brought an action before the German courts against the undertaking Datel, which offers software and a device that are compatible with that PlayStation and presents the user with game options not provided at that stage of the game by Sony.
Sony is of the view that those Datel products have the effect of altering the software which underpins its game and thereby infringe its exclusive right to authorize such alterations. It therefore requested those courts to prohibit Datel from marketing the products in question and to order it to pay compensation for the loss allegedly suffered.
The German Federal Court of Justice (BGH) has requested the CJEU to interpret the Directive on the legal protection of computer programs.
The BGH observes that Datel’s software is installed by the user on the PlayStation and runs at the same time as the game software. It does not change or reproduce either the object code, the source code or the internal structure and organization of Sony’s software. 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. Thus, the game runs on the basis of those variables to the changed content.
The Court decides 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 directive 2009/24 on the protection of computer programs, in so far as that content does not enable such a program to be reproduced or subsequently created.
See the press release here and the CJEU decision here.