Advocate General at the ECJ on the Admissibility of Cheat Software
For many years, we had the opportunity to accompany one of the best-known automation bots for online games all the way to the Federal Constitutional Court. This specific case, involving Bossland’s “Honorbuddy” for the game World of Warcraft, exemplifies the complexity and far-reaching nature of legal issues surrounding cheat software.
The legal dispute between Bossland and Blizzard, the manufacturer of World of Warcraft, dragged on over several instances. It raised fundamental questions about the relationship between copyrights and rights of use, the protection of business models, and the scope of injunctive relief.
Now, more than a decade later, the Advocate General at the European Court of Justice (ECJ) has also addressed the issue. He expressed his opinion on whether the use of cheat software in online computer games is generally permissible. This follows a referral from the Federal Court of Justice (BGH), which has referred questions on cheat software to the ECJ. The BGH aims to clarify if the mere overwriting of variable values in a computer program’s working memory already constitutes a copyright infringement. This question was also relevant in the Bossland v. Blizzard case but remained inconclusively clarified at the time.
At the end of April 2024, the Advocate General issued his eagerly awaited opinion. He takes the view that the mere change of variable values in the working memory does not constitute an unauthorized modification of a computer program within the meaning of copyright law. He thus goes against the previous case law of the Federal Court of Justice. Instead, he proposes a more user-friendly interpretation that also leaves room for modifications and creative uses.
Although the Advocate General’s recommendation is not binding on the ECJ, in practice, the judges often follow his legal assessment. Should the ECJ agree with this view, it would have far-reaching consequences for the permissibility of cheat tools and mods in computer games. Game manufacturers would then find it much more difficult to take action against providers of such software if it only accesses the working memory and leaves the program code itself untouched.
This development would strengthen the legal position of users and third-party providers. It could also lead to more competition and innovation in the field of game modifications.
Key Aspects of the Advocate General's Opinion on Cheat Software
The Advocate General recommends that the ECJ answer the BGH’s questions as follows: The mere alteration of variable values in a computer program’s working memory does not infringe the scope of protection of the program within the meaning of Directive 2009/24/EC. Furthermore, it does not constitute a modification within the meaning of copyright law.
He argues that only the value of the variables, which the program takes into account to perform various tasks, changes. However, the source code and the structure of the program itself remain untouched.
The Advocate General emphasizes that the protection of computer programs serves to protect program authors from unauthorized reproduction and distribution of “pirated copies.” However, this protection should neither hinder the development of competing or compatible software nor restrict use by legitimate users in the private sphere.
He refers to the recitals of Directive 2009/24/EC, which clarify that copyright protection for computer programs should not create monopolies for ideas and principles. Consequently, copyright protection is limited to forms of expression enabling complete or partial reproduction of the computer program, meaning ultimately the object and source code. Pure manipulation of variable values in volatile working memory is not covered by this. Otherwise, the scope of protection would be overstretched, and users’ rights disproportionately restricted.
The Advocate General also draws parallels with the ECJ’s case law regarding interfaces and interoperability. In those cases, the Court ruled that the functionality of a computer program and the programming language are not covered by copyright protection (Case C-406/10 – SAS Institute).
Additionally, the reproduction of a program code or the translation of the code form may be permissible if indispensable for obtaining information necessary to establish the interoperability of an independently created program with other programs (Case C-476/17 – Voss).
Applying these principles to the present case, much suggests that the mere modification of variable values in the working memory does not constitute a copyright-relevant act of use. The Advocate General, therefore, advocates for a cautious interpretation of Directive 2009/24/EC. This approach avoids overstretching the protection of computer programs and allows room for competition, innovation, and creative uses. For more on copyright protection, consider our article on Copyright in the Digital World: What Startups Should Look Out For.
Significance for IT Security Research
The Advocate General’s opinion not only has implications for cheat software in games but also indicates a fundamental statement. It suggests that all software whose content intended for modification is temporarily modified in working memory is permissible under copyright law. This could particularly aid IT security research when analyzing software.
For example, buffer overflow-based “attacks” would be expressly permitted for investigation. As long as there is no completely secure software, providing the best possible information about vulnerabilities remains a crucial factor for the stability of the information society.
Security researchers depend on a legal framework that allows them to investigate potential vulnerabilities and exploits without facing prosecution. This includes the possibility of manipulating program sequences and analyzing how changed variable values affect software functionality. The coordinated and responsible detection and disclosure of IT security vulnerabilities is not an insurmountable problem.
Coordinated Vulnerability Disclosure (CVD) or Responsible Disclosure is a mechanism designed to reconcile the interests of science, society, and product stewards. Its core principles include:
- Security vulnerabilities are first reported confidentially to the manufacturers.
- They are only published after a reasonable period has elapsed to fix them.
- This gives manufacturers the opportunity to develop and provide security updates before vulnerabilities can be exploited by attackers.
This process also creates incentives for security researchers to handle their findings responsibly and not publish exploits carelessly. Premature disclosure of security vulnerabilities can entail considerable risks for affected systems and their users.
However, successful Coordinated Vulnerability Disclosure also requires manufacturers to work cooperatively and transparently with security researchers. This includes taking reported vulnerabilities seriously, rectifying them promptly, and informing the public about the measures taken. Unfortunately, practice shows that this is not always the case; some manufacturers attempt to conceal security vulnerabilities or intimidate those who discover them.
Therefore, it is all the more important that the legal system supports security researchers. It must clarify that the analysis of software vulnerabilities is generally permissible, as long as it is not abusive. The Advocate General’s opinion could send an important signal that the integrity and security of IT systems are valuable assets that must not be jeopardized by excessive copyright claims. Ultimately, all parties benefit from a robust and trustworthy IT infrastructure.
Manufacturers can use the findings of security researchers to improve their products and minimize liability risks. Users can rely on the fact that any vulnerabilities discovered are promptly rectified and their data secured. Society as a whole benefits if critical infrastructures and sensitive information are better protected against attacks. For those interested in securing systems, learning more about Pentesting as a Service: Legal Framework and Contract Design can be highly beneficial.
It is to be hoped that the ECJ will adopt the Advocate General’s considerations. This could create a balanced legal framework for IT security research with its decision. Only if the legal rules of the game are clear and innovation-friendly can security researchers develop their full potential and make an important contribution to digital security.
Influence on the Gaming Industry
Should the ECJ follow the Advocate General’s recommendations, this would have far-reaching consequences for the gaming industry. Video game manufacturers would then no longer be able to take action against cheat software providers so easily, as long as they only access the working memory and leave the source code untouched. This could stimulate competition in the field of game modifications and add-on programs.
At the same time, developers would have to consider how to implement restrictions and game mechanics that cannot be easily circumvented by external tools. There may also be increased pressure to offer cheat functions officially as options or mods to maintain control. Game publishers often argue that cheats compromise the integrity of the gaming experience and create unfair competition between players.
On the other hand, many gamers view cheats and mods as a creative way of customizing a game. The ECJ’s decision could, therefore, lead to a readjustment of the relationship between game manufacturers, cheat providers, and gamers. Learn more about Modding and User-Generated Content: Legal, Economic, and Strategic Aspects.
On one hand, publishers would have to accept that they cannot prevent every change to the gaming experience by third parties. They may be forced to offer more modding interfaces and customization options to keep users engaged. On the other hand, cheat developers would need to be prepared for their tools to be legal but not necessarily desired. They might have to do more to convince people that their offerings enrich the gaming experience rather than destroy it.
Ultimately, finding a balance of interests among the involved parties will be crucial. Game manufacturers have a legitimate interest in ensuring their products are used fairly and as intended. They invest significant money and effort in development and must protect their revenues. Cheats and hacks can undermine this business model by falsifying game content or circumventing payment barriers.
Conversely, players have an interest in being able to use the games they have purchased as they wish within the legal framework. They want to express their creativity, personalize the gaming experience, and network with other gamers. Mods and additional tools can help increase long-term motivation and attract new target groups. It can also enrich the gaming culture as a whole if users not only consume games but actively help shape them.
It will be interesting to see how game manufacturers and cheat providers react to a possible liberalization by the ECJ. For instance, publishers might increasingly rely on server-based games and cloud gaming to retain control over the gaming environment. They could also try to offer cheat functions as paid DLCs and monetize them that way. Cheat developers, conversely, could focus on marketing their tools as creative modding platforms that respect and enhance the original game.
Ultimately, it will depend on all parties involved to approach each other and seek constructive solutions. One thing is clear: the passion and commitment of players are the foundation of the gaming industry’s success. If this energy can be channeled positively into fruitful cooperation, everyone can benefit in the end – game manufacturers, cheat providers, and most importantly, the gamers themselves. For additional insights into legal frameworks in gaming, explore T&Cs, Regulation & Compliance in Blockchain & Computer Games.
Comparison with Previous Judgments
The Advocate General’s assessment contrasts with previous rulings by German courts. In 2012, the Regional Court of Hamburg affirmed an infringement of competition law through the distribution of bots. This occurred in preliminary injunction proceedings between game manufacturer Blizzard and cheat provider Bossland (LG Hamburg, decision of 12.06.2012, ref. 312 O 322/12). The court considered the use of bots to be a violation of Blizzard’s terms of use and thus a targeted obstruction of competition.
In another case, the Dresden Higher Regional Court ruled in 2015 that the distribution of bots constitutes a copyright infringement (OLG Dresden, judgment of 20.01.2015, ref. 14 U 1127/14). The court considered the bots an impermissible modification of the game software, as they interfered with the program flow and changed the code. Additionally, the bots would circumvent Blizzard’s technical protection measures, which is a copyright infringement in itself.
In 2017, the Federal Court of Justice (BGH) took a position against Bossland in an appeal case (BGH, judgment of 12.01.2017, ref. I ZR 253/14). This case involved the bots “Honorbuddy” and “Gatherbuddy 2,” used in World of Warcraft. The BGH confirmed the rulings of the lower courts. It viewed the cheat bots as both an anti-competitive obstruction and a copyright infringement through unauthorized modification and circumvention of technical protection measures. Bossland was, therefore, ordered to cease and desist and pay damages.
However, this BGH ruling concerned different bots than those now assessed by the ECJ Advocate General. While “Honorbuddy” and “Gatherbuddy 2” intervened deeply in the game mechanics and also circumvented protective measures, the bots relevant in the preliminary ruling proceedings are apparently limited to the manipulation of variable values in the working memory. In this respect, the cases are not readily comparable.
It will be interesting to see whether the ECJ follows the Advocate General’s reasoning. Such a decision could lead to a standardization of the previously inconsistent case law. It might also create more legal certainty for cheat developers and game manufacturers. Learn more about Anti-cheat Software vs. Data Protection: Legal Risks and Design Options.
Nevertheless, the Advocate General’s opinion also raises new questions. It remains unclear where exactly the boundary lies between permissible changes to variable values and impermissible reworking of the program code. It is also unclear to what extent technical protection measures of game manufacturers should be considered and whether their circumvention can constitute an independent copyright infringement.
Overall, the controversial discussion about cheat software shows that copyright law faces new challenges in the digital age. It is important to find an appropriate balance between the interests of rights holders, users, and the general public. The technical characteristics of computer programs and the importance of interoperability and competition must also be considered. It remains to be seen how the ECJ will rule and what consequences this will have for the gaming industry. However, it is clear that the legal framework for cheats and mods will remain an exciting and controversial topic in the future. Ultimately, it will be important to find a fair balance of interests that safeguards the rights of all parties involved and simultaneously allows room for innovation and creative development.
Points of Criticism and Counter-Opinions Regarding Cheat Software
Critics of the statement argue that cheat software impairs the integrity and the gaming experience, even if it does not directly interfere with the program code. Cheats would undermine the rules of the game and disrupt the balance intended by the developer. For example, players could use aimbots to take perfect aim in shooters without doing anything themselves, or use wallhacks to see enemies through walls. In multiplayer games, this leads to considerable frustration for honest players who suddenly face unfair opponents.
There is also a risk that cheaters will gain unfair advantages over other players, thus distorting competition. Especially in competitive games such as e-sports titles, this could lead to a devaluation of performance and prize money. For instance, understanding the Liability Risks for Esports Teams highlights the serious implications.
Even in games with in-game currencies or real-money transactions, cheating could lead to financial losses for players and manufacturers if cheaters unlawfully enrich themselves through exploits or duplication glitches. Some also fear that an overly liberal attitude towards cheat tools could reduce the incentive for game manufacturers to invest in elaborate anti-cheat measures. If cheating is virtually tolerated, this could lead to frustrated honest players and migration in the long run.
This, in turn, could reduce manufacturers’ revenues and damage their reputation. There is a danger that multiplayer games, in particular, will degenerate into “cheatfests” where regular players hardly stand a chance. There are also voices that see cheat software as a violation of copyright law, as it misuses the game software contrary to the license terms. The terms of use of most games expressly prohibit the use of cheats and hacks. By circumventing these provisions, cheat tools violate the license agreement between the manufacturer and the user.
This is comparable to breaking copy protection or making illegal copies. The boundary between permitted adaptation and circumvention of protective measures is often controversial. While supporters of cheat software argue that it merely exploits weaknesses in the game design without changing the code, critics see it as an impermissible intrusion into the integrity of the game. After all, the protective measures were deliberately implemented by the manufacturer to prevent cheating. For legal advice on software contracts, see our guide on Drafting Contracts for SaaS Companies.
Proponents argue that a certain degree of modding and customization by users is important for a vibrant gaming culture. The freedom of users to use purchased software in private as they wish should not be excessively restricted. The purchaser of a game has the right to use it as he wishes, as long as he does not infringe the rights of third parties. A strict ban on cheat tools would inadmissibly restrict this freedom, as cheat programs are ultimately a reaction to the market needs of players.
Instead of banning them across the board, manufacturers should offer attractive legal alternatives. These could include difficulty levels, accessibility aids, or creative game modes. In this way, they could meet the different needs and abilities of their customers without restricting their freedom. A better separation between competitive and relaxed game modes, as well as dedicated servers for modding and cheats, could also help to defuse conflicts.
Ultimately, the debate about cheat software shows that there are different interests and points of view when it comes to cheating. While some focus on the protection of competition and intellectual property, others emphasize the freedom and creativity of users. A balanced solution will only be possible if both sides approach each other and find compromises. In any case, blanket bans or complete liberalization are not sufficient.
Conclusion and Outlook
It remains to be seen how the ECJ will position itself. In any case, the decision has the potential to have a lasting impact on the legal framework for cheat tools, mods, and game modifications. On one hand, it is about protecting the creators and the integrity of the gaming experience, and on the other, about user freedom and lively competition. The ruling could also provide important impetus for IT security research.
The case of Blizzard v. Bossland is a good example of how complex and protracted such disputes can be. It may require a rethink on the part of game manufacturers and legislators to find an appropriate balance of interests. Instead of banning every change, official interfaces for modding and creative game design could be a way forward.
At the same time, players must be effectively protected against fraud and unfair practices. As a lawyer with over a decade of experience in copyright and competition law, as well as in drafting contracts for the gaming industry, I can affirm that the upcoming ECJ decision will be of great practical relevance. In my career, I have had the opportunity to participate in many highly complex court cases on cheat software and game modifications, including the Blizzard vs. Bossland case before the Federal Court of Justice. I have found that it is often difficult to find a balance between the legitimate protection interests of game manufacturers and the freedom rights of users. The legal situation has so far been anything but clear, leading to lengthy and costly legal disputes.
A clarifying decision by the ECJ could provide more legal certainty here, although even the ECJ will not be able to clarify all the details. It will continue to be a task for national courts, legislators, and, not least, the games industry itself to develop practical solutions that are in the interests of the players. We should also keep an eye on the opportunities and potential of mods and user-generated content, which can be an important driver of innovation.
In my view, it would be desirable if game publishers and cheat developers engaged in more dialogue with each other instead of just fighting in court. If we succeed in defining common standards and rules of the game that promote creativity and competition without opening the floodgates to infringements of the law, a great deal would already have been gained. However, this also requires the courage to question old ways of thinking and break new ground.
I will continue to monitor developments and report on the final decision of the ECJ. It is to be hoped that the judge’s ruling will provide a good basis for further discussion. As an expert in legal issues relating to gaming and e-sports, I will continue to closely accompany and support the industry in the future. Because one thing is certain: the issue of cheating will be with us for a long time to come.