Action Replay II – Cheating allowed?
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Marcel Pemsel
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Action Replay II – Cheating allowed?
The IPKat has received and is pleased to host the following post by Katfriend Lea Kristin Fischer
(Trainee Lawyer at the Higher Regional Court of Munich) on the recent
Action Replay II decision of the German Federal Court of Justice. Here
is what Lea writes:
Action Replay II – Cheating allowed?
by Lea Kristin Fischer
Reminiscent of teenage days, typing motherlode on the parents’ laptop’s keyboard, pressing enter and suddenly having (what felt like) unlimited credits to buy all the fashion and interior items a The Sims™ character could ever wish for, software ‘outsmarting’ the system has now made its way to the courts.
In a recent judgment (I ZR 157/21 – 31 July 2025), the German Federal Court of Justice (Bundesgerichtshof, BGH) decided (after the respective judgment of the Court of Justice of the EU (CJEU), C-159/23) that a complementary software that ‘modifies’ an original computer program’s regular execution, commonly referred to as ‘cheat software’, does not infringe the copyright in the original program, namely its exclusive right of alteration, because the complementary software at issue does not change the code or parameters of the original program but merely the content (more specifically referred to, as clarified by AG Szpunar in his Opinion, the value) of the variables of those parameters. Whereas complementary software may be lawful to a certain extent (see Nintendo v PC Box, IPKat here), the original creation must remain untouched.
Background and referral
Before the Regional Court of Hamburg back in 2012, Sony Computer Entertainment Europe Ltd (‘Sony’) claimed inter alia that the software of Datel Design and Development Ltd and Datel Direct Ltd (together ‘Datel’) infringes their copyright, specifically the exclusive right of alteration. Sony claimed that ‘by means of Datel software, users alter, in a manner contrary to copyright, the computer programs which underpin its games, and that Datel is responsible for that unlawful alteration.’ Though, both parties agreed that neither the software itself nor its users gain access to or in any way change the code of those programs.
Datel’s software works as follows (as described by AG Szpunar):
"The [Action Replay] software is used by connecting the PSP [PlayStation Portable, a handheld gaming console] to a computer and then inserting into the PSP a USB stick which loads that software. After restarting the PSP, the user is able to bring up an additional tab on that console allowing changes to be made to Sony’s games. Those include, for example, in the case of the game ‘MotorStorm: Arctic Edge’, options enabling the removal of all restrictions on use of the ‘booster’ function or on the choice of drivers, some of whom are usually unlocked only once a particular number of points have been obtained."As regards another software at issue, the ‘Tilt FX’, the user i
ntervenes in the
game’s execution with a motion sensor (see para. 18 of the CJEU’s
decision).
After the Regional Court of Hamburg upheld Sony’s claims on the basis of Sec. 69a, 69c of the German Act on Copyright and Related Rights (implementing Articles 1, 4 (and 5) of the Software Directive), the Higher Regional Court of Hamburg dismissed Sony’s claims in their entirety. Now, the BGH has confirmed the latter court’s judgment: changing the value of the variables does not qualify as copyright infringement as long as the original source code of the program with its parameters and their internal structure and organisation remains untouched and the changed values of the variables do not amount to the reproduction or subsequent creation of such a program.
The judgment was made after a referral to the CJEU with the following questions (emphasis added):
As mandated by the WIPO Copyright Treaty as well as the TRIPS Agreement, computer programs shall be protected as literary works. Under EU law, the copyright protection of computer programs is subject to the Software Directive – a ‘special protection scheme’ for this special kind of ‘text’ which is unlike any other category of literary work. Article 4(1) of the Software Directive stipulates as restricted acts inter alia the permanent or temporary reproduction and the translation, adaptation, arrangement and any other alteration of a computer program. These acts are restricted for (any element of) a computer program that is original in the sense that it is the author’s intellectual creation.
Copyright protection shall only apply to the expression, not any ideas and principles which underlie any element of the computer program (Article 1 Software Directive), or its functionalities (see CJEU decision Bezpečnostní softwarová asociace). As emphasised by AG Szpunar, this protection of computer programs as literary works is a double-sided coin: even though the rightsholders may have greater control over their works and a greater scope of acts is restricted under the Software Directive, a computer program may exclusively be copyright protected in its coding text, which is a computer program’s ‘expression’.
The question the BGH and the CJEU had to answer in the case discussed here is whether variables of a computer program are a copyright protected expression and whether such copyright protected expressions were altered by the (individual) user using the ‘cheat software’, for which Datel may be deemed responsible.
The CJEU held in its preliminary ruling that ‘cheat software’ comparable to the one at issue merely changes the content of the variable. According to AG Szpunar, this content, which is essentially data, is not original as it is unforeseeable and dependent on the player’s behaviour as well as ‘merely transitory, temporary and provisional since it can change while the program is running and is often reset to zero when that program is next run’. This means that it is not identifiable with sufficient precision and objectivity (as required, see Levola Hengelo).
The BGH’s decision
The BGH followed the CJEU’s interpretation in its recent judgment, holding that the modification of the content of the variables at issue did not infringe Sony’s copyright.
Datel’s software changed, in non-technical terms, the variable, i.e. the information or data, to e.g. ‘pretend’ that a certain level of the game has been achieved by the player, allowing him to use the ‘booster’ function (reserved for that higher level or achievement of points). This act itself does not change or alter the parameters, i.e. the protected code of the game, but the ‘value of the variable’, which is already transferred to the RAM by the original computer program. Hence, it is considered an option anticipated by the author as it is inherent to the original source code, merely not occurring at the respective point of time in the game but would occur eventually during regular execution of the game (clarified in BGH judgment). Further illustrated with AG Szpunar’s analogy: ‘In the same way, the author of a detective novel cannot prevent the reader from skipping to the end of the novel to find out who the killer is, even if that would spoil the pleasure of reading and ruin the author’s efforts to maintain suspense.’
Comment
The courts have, once again and in a consequent manner, confirmed that it is all about the original expression of a creator. It is questionable whether, when it comes to awarding copyright protection, reducing gaming software to its code does its nature justice as it is rather the experience, so indeed the functionalities and ‘anticipated suspense’, that is of interest to the user. Taking into consideration this argument, AG Szpunar circled back to the intentions and objective of the Software Directive concluding that the ‘limitation’ to protect exclusively the software author’s expression (which is inherent to copyright law, see IPKat on idea/expression dichotomy), i.e. the code, is logical and in line with the Directive.
Datel software users’ very specific act of modifying the regular execution of Sony’s game does not amount to copyright infringement. Still, it becomes evident that – in the absence of a legally valid exception (see, e.g., Article 5 of the Software Directive) – the copyright protection of a computer program’s original expression remains, and must remain, untouched.
On another (last) note: the BGH did not submit any questions regarding infringements of the exclusive rights stipulated in the InfoSoc Directive to the CJEU. Hence, this was not further analysed by the latter despite being considered relevant (see paras. 25 – 29 of the CJEU’s judgment). Also not considered due to lack of referred questions in this regard were copyright infringements potentially committed during the development of Datel’s software as well as infringements of trademark and unfair competition laws (see paras. 25 and 58 of AG Szpunar’s Opinion).
After the Regional Court of Hamburg upheld Sony’s claims on the basis of Sec. 69a, 69c of the German Act on Copyright and Related Rights (implementing Articles 1, 4 (and 5) of the Software Directive), the Higher Regional Court of Hamburg dismissed Sony’s claims in their entirety. Now, the BGH has confirmed the latter court’s judgment: changing the value of the variables does not qualify as copyright infringement as long as the original source code of the program with its parameters and their internal structure and organisation remains untouched and the changed values of the variables do not amount to the reproduction or subsequent creation of such a program.
The judgment was made after a referral to the CJEU with the following questions (emphasis added):
"(1) Is there an interference with the protection afforded to a computer program under Article 1(1) to (3) of Directive [2009/24] in the case where it is not the object code or the source code of a computer program, or the reproduction thereof, that is changed, but instead another program running at the same time as the protected computer program changes the content of variables which the protected computer program has transferred to the [RAM] and uses in the running of the program?The protection of computer programs under EU copyright law and the CJEU’s view
(2) Is an alteration within the meaning of Article 4(1)(b) of Directive [2009/24] present in the case (…) [described under 1]"
As mandated by the WIPO Copyright Treaty as well as the TRIPS Agreement, computer programs shall be protected as literary works. Under EU law, the copyright protection of computer programs is subject to the Software Directive – a ‘special protection scheme’ for this special kind of ‘text’ which is unlike any other category of literary work. Article 4(1) of the Software Directive stipulates as restricted acts inter alia the permanent or temporary reproduction and the translation, adaptation, arrangement and any other alteration of a computer program. These acts are restricted for (any element of) a computer program that is original in the sense that it is the author’s intellectual creation.
Copyright protection shall only apply to the expression, not any ideas and principles which underlie any element of the computer program (Article 1 Software Directive), or its functionalities (see CJEU decision Bezpečnostní softwarová asociace). As emphasised by AG Szpunar, this protection of computer programs as literary works is a double-sided coin: even though the rightsholders may have greater control over their works and a greater scope of acts is restricted under the Software Directive, a computer program may exclusively be copyright protected in its coding text, which is a computer program’s ‘expression’.
The question the BGH and the CJEU had to answer in the case discussed here is whether variables of a computer program are a copyright protected expression and whether such copyright protected expressions were altered by the (individual) user using the ‘cheat software’, for which Datel may be deemed responsible.
The CJEU held in its preliminary ruling that ‘cheat software’ comparable to the one at issue merely changes the content of the variable. According to AG Szpunar, this content, which is essentially data, is not original as it is unforeseeable and dependent on the player’s behaviour as well as ‘merely transitory, temporary and provisional since it can change while the program is running and is often reset to zero when that program is next run’. This means that it is not identifiable with sufficient precision and objectivity (as required, see Levola Hengelo).
The BGH’s decision
The BGH followed the CJEU’s interpretation in its recent judgment, holding that the modification of the content of the variables at issue did not infringe Sony’s copyright.
Datel’s software changed, in non-technical terms, the variable, i.e. the information or data, to e.g. ‘pretend’ that a certain level of the game has been achieved by the player, allowing him to use the ‘booster’ function (reserved for that higher level or achievement of points). This act itself does not change or alter the parameters, i.e. the protected code of the game, but the ‘value of the variable’, which is already transferred to the RAM by the original computer program. Hence, it is considered an option anticipated by the author as it is inherent to the original source code, merely not occurring at the respective point of time in the game but would occur eventually during regular execution of the game (clarified in BGH judgment). Further illustrated with AG Szpunar’s analogy: ‘In the same way, the author of a detective novel cannot prevent the reader from skipping to the end of the novel to find out who the killer is, even if that would spoil the pleasure of reading and ruin the author’s efforts to maintain suspense.’
Comment
The courts have, once again and in a consequent manner, confirmed that it is all about the original expression of a creator. It is questionable whether, when it comes to awarding copyright protection, reducing gaming software to its code does its nature justice as it is rather the experience, so indeed the functionalities and ‘anticipated suspense’, that is of interest to the user. Taking into consideration this argument, AG Szpunar circled back to the intentions and objective of the Software Directive concluding that the ‘limitation’ to protect exclusively the software author’s expression (which is inherent to copyright law, see IPKat on idea/expression dichotomy), i.e. the code, is logical and in line with the Directive.
Datel software users’ very specific act of modifying the regular execution of Sony’s game does not amount to copyright infringement. Still, it becomes evident that – in the absence of a legally valid exception (see, e.g., Article 5 of the Software Directive) – the copyright protection of a computer program’s original expression remains, and must remain, untouched.
On another (last) note: the BGH did not submit any questions regarding infringements of the exclusive rights stipulated in the InfoSoc Directive to the CJEU. Hence, this was not further analysed by the latter despite being considered relevant (see paras. 25 – 29 of the CJEU’s judgment). Also not considered due to lack of referred questions in this regard were copyright infringements potentially committed during the development of Datel’s software as well as infringements of trademark and unfair competition laws (see paras. 25 and 58 of AG Szpunar’s Opinion).
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