German Federal Court of Justice decision in Sony v. Datel: Its implications for gaming, cheat tools and EU software copyright law

The case: Sony v. Datel

Sony brought an action against UK-based Datel, a provider of cheat tools such as Action Replay PSP and Tilt FX. These tools allowed players to gain unfair advantages in games like MotorStorm Arctic Edge - for example, by enabling unlimited turbo or unlocking all characters. However, they did not alter the program code, but merely changed the contents of certain memory locations in RAM.

Sony argued that this constituted an unlawful modification under § 69c No. 2 of the German Copyright Act (UrhG) and the EU Software Directive 2009/24/EC. 

After the Hamburg Regional Court initially ruled partially in Sony’s favour, the Higher Regional Court dismissed the claim entirely. The BGH then referred key questions to the CJEU for interpretation.

The legal question: What constitutes a “modification”?

At the heart of the case was the question: does changing RAM data during program execution - without modifying the source or object code - constitute a copyright-relevant modification?

The CJEU answered this question in the negative in its decision of 17 October 2024:

• Copyright protection for software does not extend to functional manipulation of variables stored in RAM.
• Such actions do not constitute reproduction or modification of the protected code or its copies.
• Therefore, no copyright infringement occurs.

The BGH adopted the CJEU’s interpretation of the Software Directive and ruled accordingly that no copyright infringement had taken place.

What the judgment clarifies - and what it doesn’t

What is clarified:

• Manipulating RAM data is permissible under copyright law, provided the code remains untouched.
• The scope of software copyright protection is limited to code and its copies - not to dynamic data in RAM.

What remains open:

• The judgment does not exclude the possibility that other types of cheat software may infringe copyright. 
• Tools that modify the program code, circumvent technical protection measures, or create unauthorised copies may still constitute copyright infringement under EU law. 
• The judgment leaves other legal avenues unaffected - particularly under contract law (e.g., EULA violations), competition law (e.g., unfair hindrance), or consumer protection law (e.g., misleading advertising).

Practical implications

For video gaming publishers:

• Copyright law alone is no longer sufficient to disincentive use of cheat software.
• Required measures include:
  • Technical protection measures (TPMs) such as anti-cheat systems.
  • Enforcement of EULAs with clear usage restrictions.
  • Alternative legal approaches, e.g., under competition or consumer protection law.

For cheat software developers:

• The judgment provides greater legal certainty, but not a “free pass”.
• It is crucial that the code is not modified and no TPMs are circumvented.

For the software industry at large:

• The judgment may also be relevant for modding tools, debugging software, or interoperability solutions.
• It reinforces a narrow interpretation of software copyright and could foster innovation in the accessory market.

Final observations

With its judgment in Sony v. Datel, the BGH - guided by the CJEU’s interpretation - has for the first time at the highest level clarified that cheat software which merely alters RAM data does not infringe copyright. This provides legal certainty and sends a signal that is relevant to both the gaming sector and beyond.

For publishers, the message is clear: those who want to prevent cheating must do so through technical means - copyright law alone is not enough.

Want more information?

For more information in relation to:

• Video gaming, see our video gaming thought leadership hub, Insights: Gaming.
• Technology regulation, see Inside Tech Law.
• Recent tech-related IP cases in Germany, see our publications:
  
  • Germany: landmark court decision deals with AI training and copyright
  • Germany: AI cannot be named as inventor - insights from the Bundesgerichtshof’s DABUS decision
  • Germany: Copyright and ad blockers