Why the European Court of Justice's decision on cheats is not a milestone | Opinion
The European Court of Justice (ECJ) is the highest court in the European Union. Decisions regarding video games are few and far between. So when it rules, we expect the decision to be a game changer.
The judgement it delivered on 17 October 2024 – ruling against Sony in a dispute over cheats provided through Datel's Action Replay for PSP – looks like one at first sight. A second look shows that for most cases it will not change anything. The reason for this is that lawsuits against cheat software developers, especially in multiplayer online games, are now based on violations of the game developers EULAs and competition law.
The ECJ case, however, is different. It is about the software Action Replay PSP and Tilt FX PSP, which gave super powers for various games on Sony's today nearly forgotten Playstation Portable. Sony originally won an interim injunction back in 2010 at the Regional Court in Hamburg, as well as two years later the case on the merits. The cheat producer went into appeal, and the decision was reversed nine years later in 2021.
The German Federal Court of Justice then sent the case to the ECJ. National courts can do that if they have doubts about the interpretation of EU law. As a reminder: the German Federal Supreme Court (Bundesgerichtshof) had already rendered two decisions regarding cheats for World of Warcraft (as of 6 October 2016 – case I ZR 25/15, and as of 12 January 2017 – case I ZR 253/14).
When the German Federal Supreme Court now submitted the case to the ECJ, it is not because the judges have changed their mind and became cheater friendly in the meantime. It was because the relevant question of law was another one. The question was whether Action Replay PSP and Tilt FX PSP infringe copyright even though they did not interfere with the source code and the software itself, but just modified variables in the computer's RAM. The ECJ held that this is not sufficient to assume a copyright infringement.
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