Cheat Software and Copyright: Recent CJEU Case Law and Its Significance for Practice
In its decision of October 17, 2024 (Case No. C-159/23), the Court of Justice of the European Union (CJEU) provided a fundamental clarification regarding the copyright classification of so-called ‘cheat software’ for video games. The proceedings focused on whether developing and distributing programs that give players an unfair advantage in online games constitutes an infringement of the copyrights to the respective computer game. The judgment has far-reaching implications for the gaming industry as well as for producers and providers of digital content as a whole.
Background: What is meant by ‘cheat software’?
Cheat software refers to programs that intervene in the rules of a digital game to give individual players an advantage. Such programs are particularly widespread in the area of multiplayer games and often lead to distortions of competition among users.
In the original case, an Italian provider was at the center of the legal dispute for having developed and distributed cheat software for a well-known video game. The manufacturer of the game considered this an infringement of its rights to the game and filed suit, among other things, for an injunction and damages. During the legal proceedings, the competent Italian court referred several questions concerning Union law to the CJEU for a decision.
Copyright Assessment by the CJEU
Legality and Scope of Technical Protection Measures
A central issue in the preliminary ruling was to what extent the author or holder of rights to a video game can take legal action under copyright law against providers of cheat software. The decisive criterion was whether the cheat programs constitute unauthorized reproduction or adaptation of the computer game.
The CJEU ruled that pure cheat software does not, in principle, constitute a legally relevant act of use of the video game software itself under copyright law. This means that copyright reproduction and adaptation rights are not affected, as long as the software does not copy, alter, or otherwise directly access the original game or its digital work. In the court’s view, external programs that solely manipulate the gameplay without modifying or intervening in the source code do not infringe the copyright in the protected work.
Significance of Directive 2001/29/EC and the Software Directive
The court based its decision primarily on Directive 2001/29/EC (Copyright Directive) and the Software Directive 2009/24/EC. Both directives set narrow limits for copyright protection of computer programs. The functionality of a program, as well as its algorithms and programming languages as such, are, according to consistent case law, not protected. Only the concrete form of expression, such as the source code for example, is protected under copyright law.
The court, therefore, concluded that the mere fact that players violate other terms of use by using cheat software does not amount to an infringement of the rights holder’s exclusive rights, provided a copyright-protected element is not also affected. The CJEU rather makes clear that violations of terms of use are, as a rule, to be prosecuted under contract or unfair competition law, but not under copyright law.
Implications for the Games and Software Industry
The ruling is likely to be highly significant for many involved in the development and distribution of software—especially in the gaming segment. The decision clarifies the distinction between copyright protection and other legal protection mechanisms, such as unfair competition regulations or contractual sanctions.
For rights holders, this means that not every circumvention or manipulation by third parties necessarily gives rise to a copyright claim. Instead, a precise examination is required as to whether protected elements of the work as defined by copyright are actually being infringed. The CJEU explicitly also pointed out that possible violations of competition law or breaches of contractual obligations are unaffected by this.
Further Questions and Legal Uncertainties
Distinction from Technical Protection Measures (§ 95a UrhG)
The CJEU decision did not explicitly address whether certain forms of circumvention of technical protection measures—for example those implemented by anti-cheat tools—could constitute independent offenses under national law, in particular § 95a UrhG. These are special regulations that may apply regardless of an actual copyright infringement.
Contractual and Competition Law Aspects
It also remains unclear to what extent the use of cheat software may be subject to contractual prohibitions. Many video game providers explicitly prohibit cheats in their terms of use and impose corresponding sanctions affecting user accounts. Enforcing these rules requires a careful case-by-case assessment, which must also take into account national consumer protection regulations.
Outlook and Further Considerations
The judgment of the CJEU draws a clear line in interpreting the concept of a copyrighted work and the scope of protection against manipulation of software by third-party programs. At the same time, it makes clear that protection against abuse and manipulation in the digital sphere cannot rely on copyright law alone, but rather requires a coordinated combination of various areas of law.
Further legal issues in connection with the legality and combating of cheat software currently remain partially unresolved and are being dealt with in further proceedings in the member states, which rights holders and software providers should be prepared for. Nevertheless, the CJEU’s decision provides an important guideline for practice regarding the distinction of copyright claims from other available legal remedies.
Source: CJEU Judgment of 17.10.2024, C-159/23
If you have specific questions regarding the legal implications of the current decision, or in connection with the protection of digital products and software, an individual legal assessment of the particular facts can provide further clarification. The Rechtsanwälte at MTR Legal support companies, developers, and investors with all legal matters relating to the protection of intellectual property and in IT and distribution law.
