When today’s home video gaming market took its first tentative baby steps thanks to more affordable hardware in the early 1980s, the details of Sony’s lawsuit against Datel would’ve been dismissed as outrageous.
This was a time of experimentation; one that thrived on the energy of pushing unimaginably incapable hardware by today’s standards, to perform in unexpected ways that often exceeded manufacturers’ expectations. In some cases, that included being able to run half-decent games, or even games at all.
Sony Wins Early But Cooler Heads Prevail
Software quite rightly receives protection under copyright law but in Datel, Sony wants a ruling that outlaws the modification of variables generated by software that only ever exist in RAM and form no part of the underlying copyrighted source code. Datel’s software simply ran alongside games like Motorstorm Arctic Edge, tweaking values in memory to modify how the game played.
In January 2012, the Hamburg Regional Court found largely in favor of Sony. The Court found that Datel’s software (Action Replay PSP and Tilt FX) intervened in the ‘program flow’ of Sony’s games and, by changing the flow, the original code was modified to create a derivative of Sony’s copyrighted game code.
The decision was overturned on appeal in 2021 and the case was dismissed. Sony appealed to the Federal Court of Justice which referred key questions to the Court of Justice of the European Union for a preliminary ruling.
If Sony has its way and the protection software enjoys under the 2009 Computer Programs Directive is extended to transient variables in RAM, those who modify those variables – the users of tweaking software – would become direct infringers under copyright law. Creators of the software, in this case Datel, could be held secondarily liable.
Advocate General’s Opinion Nudges Case in the Right Direction
Advocate General Szpunar’s published opinion is not binding and the CJEU could ultimately decide on its own path.
The challenge, should one exist, would be to dismiss AG Szpunar’s conclusions as anything other than legally sound, impeccably researched, and flawlessy logical.
“[T]he value of the variables is not an element of a computer program’s code. They are merely data, external to the code, which the computer produces and reuses when running the program,” he writes.
“Those data do not exist at the moment that the program is created by its author or when it is loaded into the computer’s memory, since they are generated only while the program is running. They are therefore not such as to enable the program – or even a part of it – to be reproduced.”
Variables Are Not Creative Works
According to case law, the protection conferred by Directive 2009/24 is limited to source code and object code, both of which satisfy the criterion of originality set out in Article 1(3). Variables in RAM, on the other hand, do not satisfy the criterion of originality.
The variables are not the author’s own intellectual creation, AG Szpunar points out. On the contrary, the variables are the result of progress made in the game, and a direct result of the player’s behavior.
“It is indeed true that the author designed the categories of the variables that are recorded as well the rules whereby their value is determined in the course of the game. However, that value itself escapes the author’s creative control, since it is necessarily dependent on factors which cannot be foreseen in advance, such as the player’s behavior. That value therefore cannot enjoy copyright protection.”
Noting that the variables are “transitory, temporary and provisional,” and “often reset to zero” when a program is next run, the variables fail to meet the threshold for copyright protection since they cannot be identified with “sufficient precision and objectivity.”
More Restrictions, More Money
AG Szpunar’s opinion is lengthy, technical, and at times quite challenging to absorb. The blame for that sits squarely with Sony, whose mental gymnastics appear laser-focused on what it needs to win the case, and oblivious to almost everything else.
It’s perhaps telling that various intellectual property law firms commenting on the opinion are noting the AG’s advice, while also advancing theories that generated variables in RAM could reasonably be considered part of the overall creative package.
When work for companies like Sony pays the bills, advocating for greater restrictions on existing freedoms doesn’t lead to less business, let’s put it that way. That the opposite is being argued in legal matters relating to output from generative AI, is certainly interesting, if nothing else.
AG Szpunar’s Conclusion
Ultimately, AG Szpunar draws the following conclusion:
Article 1(1) to (3) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the protection conferred by that directive pursuant to that provision does not extend to the content of the variables which the protected computer program has transferred to the RAM of the computer and uses in running it, in the situation in which another program operating at the same time as the protected computer program changes that content, without however the object code or the source code of the latter program being changed.
Full opinion available here
