Judgment of the Court of Justice of October 17, 2024, Sony (C-159/23).
Facts
The lawsuit pits Sony Computer Entertainment Europe Ltd (“Sony”), the distributor of the PlayStation Portable (PSP) console and its games, against Datel Design and Development Ltd (“Datel”), a manufacturer of accessories and complementary software such as Action Replay PSP and Tilt FX.
Datel's programs ran alongside Sony's and allowed users to alter variables temporarily stored in the console's memory, enabling unintended functions such as removing speed limits in the game“MotorStorm: Arctic Edge.”
Sony argued that these modifications constituted an unauthorized “adaptation” of its programs, within the meaning of Article 4.1(b) of Directive 2009/24/EC, thereby infringing its exclusive right of adaptation.
The Bundesgerichtshof (Federal Court of Justice of Germany) referred two questions to the Court of Justice for a preliminary ruling: (i) whether the content of variables modified during the execution of the program is protected by copyright, and (ii) whether such a modification can be considered a transformation within the meaning of the Directive.
Statements
The Court of Justice defines the scope of legal protection for computer programs in accordance with Articles 1 and 4 of Directive 2009/24/EC, specifying 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 runtime data.
The Supreme Court cites the WIPO Treaty and the TRIPS Agreement, which also limit protection to expressions, not to ideas or technical processes.
In this context, the TJ considers that the content of variables temporarily stored in memory is not part of the form of expression of the computer program. Such variables are transient states that neither reproduce nor transform the protected code.
The Court of Justice further 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 Court of Justice concludes that modifying variables during execution does not constitute a transformation of the program nor does it infringe copyright, provided that such modifications do not allow the program to be reproduced or re-executed.
Comment
The Court of Justice's ruling clarifies a key aspect of EU law: copyright in software protects the code as a creative expression, but not the functional behavior of the program when it is used.
The ruling is consistent with previous decisions, such as SAS Institute (C-406/10) andBezpečnostnísoftwarová asociace (C-393/09), which had already limited protection to the literal expression of the code. In doing so, the Court of Justice reaffirms the distinction between protected expression and free functionality, which forms the basis of the balance between intellectual property and innovation.
From a practical standpoint, the ruling has two main effects. First, it requires software developers to strengthen their technological protection measures or license agreements, since copyright does not cover functional modifications to the software’s execution. Second, it provides legal certainty to developers of auxiliary programs, provided they do not modify the code of the protected program.
In short, this ruling establishes a uniform standard across the EU: Only forms of expression—source code and object code—are protected by copyright, while execution states and dynamic variables remain outside the scope of protection.
Ana Sanz, Associate Partner in the Legal Department.