Judgment of the Court of Justice of 17 October 2024, Sony (C-159/23).
Acts
The litigation pits Sony Computer Entertainment Europe Ltd (“Sony”), distributor of the PlayStation Portable (PSP) console and its games, against Datel Design and Development Ltd (“Datel”), manufacturer of accessories and complementary programs such as Action Replay PSP and Tilt FX.
Datel's programs ran alongside Sony's and allowed for altering variables temporarily stored in the console's memory, activating unforeseen functions such as, for example, removing speed limitations in the game.MotorStorm: Arctic Edge".
Sony argued that these modifications constituted an unauthorized “transformation” of its programs, within the meaning of section 4.1.b) of the 2009 / 24 / CE Directive, violating their exclusive right of transformation.
The Bundesgerichtshof (German Federal Supreme Court for Civil and Criminal Matters) referred two preliminary questions to the CJEU: (i) whether the content of the variables modified during the execution of the program is protected by copyright and (ii) whether such alteration can be considered a transformation within the meaning of the Directive.
pronouncements
The CJEU delimits the scope of legal protection for computer programs in accordance with Articles 1 and 4 of the 2009 / 24 / CE Directiveclarified that only the forms of expression of the program are protected.
Remember that Article 1.2 excludes ideas, principles, and methods of operation from protection. Therefore, copyright protects source code and object code, but not functional elements or execution data.
The CJ cites the WIPO Treaty and the TRIPS Agreementwhich also limit protection to expressions, not to ideas or technical procedures.
In this context, the CJEU considers that the content of variables temporarily stored in memory does not form part of the computer program's expression form. Such variables are transient states that neither reproduce nor transform the protected code.
The CJEU also emphasizes that the purpose of the Directive is to protect the intellectual creation of the program, but without granting monopolies over its operation, so as not to hinder competition or technical progress.
Consequently, the CJE concludes that the modification of variables during execution does not constitute a transformation of the program nor infringe copyright, provided that such modifications do not allow the program to be reproduced or performed again.
Comment
The CJEU ruling clarifies a key aspect of EU law: copyright on software protects the code as a creative expression, but not the functional behavior of the program during its use.
The ruling follows the line of previous decisions such as SAS Institute (C-406 / 10) and Bezpečnostní softwareá associate (C-393 / 09), which already limited protection to the literal expression of the code. With this, the CJEU reaffirms the distinction between protected expression and free functionality, the basis of the balance between intellectual property and innovation.
From a practical standpoint, the ruling has two main effects. First, it compels software developers to strengthen their technological protection measures or licensing agreements, since copyright does not cover functional modifications to the software's execution. Second, it offers legal certainty to developers of auxiliary programs, provided they do not modify the code of the protected program.
In short, this ruling consolidates a uniform criterion in the EU: Only forms of expression - source code and object code - are protected by copyright, while execution states and dynamic variables remain outside the protected scope.
Ana Sanz, Associate Partner in the Legal Department.
