BGH refers “cheat software” for game consoles to the ECJ

The I. Civil Senate of the Federal Court of Justice, which is responsible among other things for copyright law, has, following the legal issues surrounding Bossland(in which the Federal Constitutional Court most recently ruled), once again to decide on the permissibility under copyright law of the distribution of software that enables the user to manipulate the program running on a game console.

Facts:

As the exclusive licensee, the plaintiff distributes game consoles and computer games for them throughout Europe. Defendants 1 and 2 are companies in a group of companies that develops, produces and distributes software, in particular supplementary products for the plaintiff’s game consoles. Defendant 3 is a director of Defendant 2. Defendant’s software enabled users of Plaintiff’s game consoles to circumvent certain restrictions in Plaintiff’s computer games, for example, in a racing game, the restriction on the usability of a “turbo” or the availability of drivers. The defendant’s software products did this by modifying data that the plaintiff’s games store in the game console’s memory. The plaintiff complains that this constitutes an unauthorized reworking of its computer games within the meaning of Section 69c No. 2 UrhG.

Previous process history:

The Hamburg Regional Court granted most of the claims for injunctive relief, disclosure, and a declaration of liability for damages. By interfering with and changing the program flow of the plaintiff’s computer games by means of the defendant’s software through external commands, the plaintiff’s computer program is reworked. It makes no difference – neither from the user’s nor the author’s point of view – whether a change in the program flow is achieved by changing the game software or by changing data in the working memory.

On appeal by the defendant, the Higher Regional Court set aside the judgment of the Regional Court and dismissed the action. The Higher Regional Court dismissed the plaintiff’s appeal. The Higher Regional Court assumed that there was no reworking of a computer program within the meaning of Section 69c No. 2 UrhG. The defendant’s software merely interferes with the running of the plaintiff’s computer games by altering the data stored in the game console’s memory, but not the computer commands themselves. However, the program flow of a computer program does not belong to the subject matter of protection under Section 69a UrhG.

However, the plaintiff continues to pursue its claim in the appeal allowed by the Higher Regional Court.

The decision of the Federal Court of Justice “postpones” the legal questions once again and attempts to have numerous legal questions, some of which were already open at Bossland GmbH, clarified at the ECJ:

The Federal Court of Justice therefore stayed the proceedings and referred the following questions to the ECJ:

1. If the scope of protection of a computer program under Art. 1 para. 1 to 3 of Directive 2009/24/EC if it is not the object or source code of a computer program or its reproduction which is altered, but another program running at the same time as the protected computer program alters the content of variables which the protected computer program has created in working memory and uses in the running of the program?
2. If there is a reworking within the meaning of Art. 4 para. 1(b) of Directive 2009/24/EC if it is not the object or source code of a computer program or its reproduction which is altered, but another program running at the same time as the protected computer program alters the content of variables which the protected computer program has created in working memory and uses in the running of the program?

After more than 10 years in which I have handled legal issues, including in the area of cheat and automation software, for example for Bossland GmbH, and have represented numerous other clients in these legal matters against many large law firms, there are still legal questions that remain unanswered. Some have now been clarified by the Federal Constitutional Court, while others will probably soon have to be clarified by the Dresden Higher Regional Court. However, it is good to see that the BGH is now finally aware of the fact that such software and the associated distribution channels raise Europe-wide, if not worldwide, legal issues.