Between control and interoperability: The BGH’s judgment in Sony v. Datel and its implications for software copyright

Technical background: Cheat tools and RAM manipulation

As the exclusive licensee for the whole of Europe, the plaintiff distributes game consoles and computer games designed for them. The defendant develops and distributes so-called “cheat tools”, including "Action Replay PSP" and "Tilt FX", which alter the behaviour of computer games on the game console “PlayStation Portable”. In particular, these tools interfere with the Random Access Memory (RAM), the temporary working memory of a computer or gaming console, where data is stored and accessed during program execution, in order to manipulate game scores or modify game characters, for example. The plaintiff claimed that this violated its rights to the game software and sought an injunction.

Legal basis: Section 69c No. 2 UrhG and the EU Software Directive

The legal assessment focuses on Section 69c No. 2 German Copyright Act (Urhebergesetz – UrhG), which regulates the processing and modification of computer programs. The provision is based on Article 4(1)(b) of Directive 2009/24/EC (EU Software Directive) and aims to safeguard the rights holder from unauthorized alterations to the structure or functionality of a program.

The key legal question was whether the manipulation of RAM data by cheat tools constitutes an “adaptation” or “modification” of the program within the meaning of copyright law. The answer to this question determines whether such interventions fall within the scope of exclusive rights granted to the software author under both national and EU law.

The Judgment: RAM manipulation is not processing

The BGH clarified that the targeted manipulation of data in RAM during program execution – such as activating cheats – is not to be considered an adaptation of the program under copyright law. The decisive criterion is whether the program code itself is altered. Merely modifying data in the working memory does not affect the copyright-protected code.

The Judgment aligns with the interpretation of the Court of Justice of the European Union (CJEU), which emphasized in its preliminary judgment of 17 October 2024 (Case C-159/23) that the scope of protection of the EU Software Directive does not extend to dynamic data in working memory, provided that such manipulation does not result in the reproduction or recreation of the program.

Implications for the gaming sector

The BGH’s decision has significant implications for both providers of cheat tools and the modding community; that is, the users who modify games through their self-created extensions. While mods are often viewed as creative enhancements, they may qualify as adaptations under copyright law depending on the extent and nature of the intervention. The Judgment helps delineate the boundary between lawful interoperability and unlawful manipulation.

For manufacturers, the Judgment does not mean a general strengthening of their control rights over RAM manipulations. Instead, they must now differentiate between actions that alter the actual program code and those that merely affect transient data in working memory, which do not fall under the scope of copyright protection. 

For developers of single-player games, other legal instruments may still offer protection. For instance, the distribution or use of cheat software could potentially constitute an act of unfair competition. Additionally, it may be legally permissible to include enforceable clauses in End User License Agreements (EULAs) prohibiting the use of such software.

By contrast, publishers of multiplayer games may face fewer legal uncertainties. Numerous courts have consistently found that cheats for online multiplayer games are unlawful. A notable example is Bungie v. AimJunkies, a case litigated in the United States, where the court ruled against the cheat developers. There is no compelling reason to assume that courts in the European Union would have reached a different conclusion. This is supported by the German Federal Court of Justice (BGH) in its decision of 12 January 2017 (World of Warcraft II, ref. I ZR 253/14), which confirmed that the use of bot software can constitute both a violation of contractual terms and an act of unfair competition.

Alignment with EU jurisprudence on software protection

Furthermore, the decision of the BGH reflects a broader European trend towards a more nuanced delineation of the scope of copyright protection for software. As clarified by the CJEU, copyright protection of computer programs applies exclusively to their forms of expression, namely, its source and object code. Functional manipulations of RAM data during program execution, insofar as they do not lead to the reproduction or recreation of the program, fall outside the Directive’s protective scope.

This interpretation reinforces the fundamental distinction between protected expressions (code) and unprotected elements such as ideas, principles, and dynamic data processed by a program. It aligns with the Directive's dual objectives: protecting authors from unauthorized copying while enabling interoperability and independent development.

Nevertheless, legal uncertainty persists regarding the extent of protection when users modify programs to introduce new functionalities or improve existing ones. Striking the right balance between copyright protection and technological innovation remains a challenge – particularly in the gaming sector, where user expectations and developer interests often collide. 

Conclusion and outlook

The German Federal Court of Justice has clarified that cheat software manipulating RAM data does not constitute a copyright-relevant adaptation unless it alters the protected program code. Under Section 69c UrhG, only modifications to the code fall within the scope of protection; transient data changes remain excluded. For game publishers, this distinction is critical: it limits the reach of copyright law and highlights the need for contractual and technical measures to safeguard game integrity. The judgment offers practical guidance for evaluating cheat tools and user-generated modifications, helping publishers navigate the tension between user creativity and IP enforcement.