By the judgment of October 17 2024 r in Case C 159/23, the CJEU ruled that article 1 (1)-(3) of Directive 2009/24/WE of the European Parliament and of the Council on the legal protection of computer programs should be interpreted as meaning that: the protection granted by this Directive does not extend to the content of variable data that the protected computer program has stored in the computer’s RAM and which the program uses during its operation, provided that this content does not allow for the reproduction or subsequent creation of such a program.

The preliminary ruling was issued at the request of the Federal Court of Justice in Germany in a dispute between Sony, a company involved in the distribution of consoles and games, and the Datel group of companies, that develop, produce, and distribute software. The dispute concerned the infringement by the Datel group of Sony’s exclusive right to authorize any modification of the computer program owned by that company. According to Sony, users modified Sony’s games unlawfully using Datel’s software by creating new game mode. For this purpose, the Sony game and the Datel software had to run at the same time.

However, doubts have arisen as to whether the use of software by Datel companies affects the scope of computer program protection, in a situation where there is no change to the source code or object code of that program or its duplication, but rather when another computer program, operating simultaneously with the protected computer program, alters the content of the variables that the protected computer program has saved in the computer’s RAM and uses during the operation of that program.

Summary:

The Court recalled that the protection guaranteed by Directive 2009/24 is limited to intellectual creations reflected in the the text of the source code and object code, and thus to the literal expression of the computer program in these codes, which constitute the set of instructions according to which the computer must perform the tasks intended by the program’s author.

The Court pointed out that Datel’s software is installed by the user on the Sony console and operates at the same time as the game software. Moreover, this software neither alters nor reproduces the object code, source code, or the internal structure and organization of Sony’s software, but is limited to modifying the content of variables temporarily stored by Sony’s games in the console’s RAM, which variables are used during the game’s operation, so that the game operates based on these variables with modified content.

It was therefore significant that the software of Datel companies does not allow for the duplication of this program or any of its parts, but rather assumes that this program operates at the same time.

The full text of the judgment>>