Judgment of the Federal Court of Justice (BGH) dated 31.07.2025 – Case No. I ZR 157/21
The Federal Court of Justice (BGH) ruled on July 31, 2025, that so-called cheat software does not infringe copyright as long as it does not alter the source code, object code, or internal structure of the original program (Case No. I ZR 157/21). The civil senate of the BGH dismissed the lawsuit because the defendant’s software products only influence program execution without modifying the source or object code.
Works that originate from personal intellectual creation, such as images, texts, music, or computer programs, are automatically protected by copyright. When distributing cheat software, it is legally relevant that this can be permissible as long as the source or object code of the program is not changed and only the program flow is manipulated. For computer programs, only the source code and object code are protected by copyright, as they enable the reproduction or future creation of the program. Other elements of the program, especially its functionality, however, are not protected by copyright according to the BGH ruling, explains the law firm MTR Legal Rechtsanwälte, which advises, among others, in intellectual property and copyright law.
The Key Concepts of Copyright Law
Copyright protects the creative work of individuals who create works such as books, music, films, or computer programs. Especially in the area of computer games and the related software – like cheat software or mods – it is important to understand the central terms to grasp the legal framework.
Author and Work: The author is the person who creates a work – that is, a personal intellectual creation such as a game, a piece of music, or a computer program. Copyright grants the author the exclusive right to determine the use, reproduction, and distribution of their work. The term “Copyright” is also often used but in German law, it refers to copyright law.
Rights and Protection: Copyright grants the author various rights, including the right to reproduce, distribute, and make their work publicly accessible. These rights protect intellectual property and prevent unauthorized use. Protection especially extends to the source code and object code of software, which form the technical basis of computer games and programs.
Software, Game Software, and Programs: Software refers to computer programs developed for specific tasks. Game software is specifically designed for playing on PCs or gaming consoles like PlayStation or Xbox. Programs and apps can fulfill various functions, from entertainment to productivity.
Cheat Software, Mods, and Cheat Codes: Cheat software allows players to bypass restrictions in games, for example, by entering cheat codes or using mods that alter or extend the game. While cheat software is often used in single-player mode to customize the gameplay individually, mods can also add new content or functions. It is important that these changes do not affect the protected source code or object code of the game to avoid copyright infringement.
Users, Players, and Rights Holders: Users and players are the individuals who use a game or software. The rights holder – usually the author or a company – owns the usage rights to the work and can decide on its use. In case of legal disputes, such as alleged copyright infringement by cheat software, a plaintiff often acts as the rights holder.
Reproduction, Distribution, and Public Accessibility: These terms describe the main types of use of a work. Reproduction means copying, distribution means selling or passing on, and public accessibility means making available on the internet or other platforms.
Changes and Restrictions: Changes to the work, such as those made by mods or cheat software, are only relevant under copyright law if they affect the protected program code. Restrictions in the game, such as difficulty levels or locked content, can be bypassed by cheat software – as long as this does not interfere with the copyright-protected area.
Legal Disputes and Judgment: If a conflict arises over the use of software or games, a legal dispute can occur, which is resolved in court by a judgment. Such rulings, like that of the BGH on cheat software, provide important clarity for developers, rights holders, and users.
With this overview of the key copyright terms in the area of computer games, software, and cheat software, you are well equipped to better understand the legal aspects surrounding your favorite game, mods, or new versions.
Use of Cheat Software in Computer Games
In the underlying case, the BGH had to decide whether so-called cheat software, which allows users to manipulate the flow of computer games on the game console, constitutes unauthorized alteration or reproduction within the meaning of copyright law. An example of such cheat software is Action Replay II, which influences the program flow by adjusting variables in memory without changing the source code or object code of the games.
The manufacturer of the game console sued the provider of the cheat software because it saw an infringement of its copyright in it. This software allowed players, for example, to unlock game characters that would normally only be available after a certain progress in the game. However, the software did not interfere with the source code or object code of the game but only changed certain data held in the console’s working memory (RAM) during gameplay. In the context of the copyright assessment of software, the question of permissible or impermissible reproductions is of central importance, as copyright law provides exceptions under certain conditions, such as for temporary reproductions or private copies.
The console manufacturer considered the distribution and use of the software an infringement of its copyright exploitation rights, specifically viewing it as an impermissible adaptation under § 69c No. 2 of the Copyright Act (UrhG). Therefore, it sued for injunction and damages. The Higher Regional Court (OLG) Hamburg dismissed the lawsuit.
BGH dismisses complaint
The Federal Court of Justice (BGH) confirmed the decision of the OLG Hamburg and rejected the appeal against the judgment. The judges explained that a copyright-relevant adaptation within the meaning of § 69c UrhG only exists if there is an intervention in the protected form of expression of a computer program. According to the case law of the BGH and the European Court of Justice (ECJ), especially the source code and object code of a program are protected. However, the states generated by the program at runtime, particularly the specific data contents in the RAM, are not protected.
In the present case, the code of the game was not changed or edited, stated the BGH. Rather, the cheat software ran alongside the game and made changes at certain memory locations, which concerned, for example, the turbo mode or progress in the game. Since these interventions took place outside the actual program code and only involved values that are generated or altered in the course of the gameplay anyway, there was no adaptation or reproduction within the meaning of copyright law, the BGH emphasized. In addition, this is an exception in copyright law: temporary changes in working memory fall under a statutory limitation and do not constitute a copyright-relevant adaptation.
BGH follows ECJ jurisprudence
The BGH thus followed the jurisprudence of the ECJ from October 17, 2024 (Case No.: C-159/23). The ECJ had decided that the temporary changes made by the cheat software in the working memory of the game console do not constitute an impermissible adaptation of the game and therefore do not violate copyright. The European Directive 2009/24/EC on the protection of data only covers the intellectual creation reflected in the source codes and object codes of the computer program and protected by copyright. In contrast, the content of variable data created in the computer’s working memory and used during the program’s runtime is not protected, as long as this content does not enable the reproduction or creation of such a program, according to the ECJ.
According to the European Directive 2009/24/EC and § 69a of the Copyright Act (UrhG), computer programs are protected by copyright. However, the case law of the ECJ and BGH clearly shows that the use of cheat software, which only influences temporary memory values without altering the protected program code, does not constitute copyright infringement. Thus, the courts have drawn a clear distinction between copyright-protected software and unprotected dynamic game functions. The limits of copyright protection are clear here: while the scope of protection covers the program code, other game functions that are only affected by temporary changes do not fall under copyright regulations.
MTR Legal Rechtsanwälte advises on copyright law and other topics of industrial property protection.
Feel free to contact us!
