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Copyright Protection for Video Games and the Challenges Posed by Cheat Software
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The development and distribution of cheat software for video games are increasingly the subject of legal disputes before the courts. The reason for this is the decision of the German Federal Court of Justice (BGH) of 9 February 2023 (Case No. I ZR 157/21), which addressed the question of the extent to which the use of so-called cheats affects the copyright-protected rights of game developers.
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Scope of Protection for Computer Programs and Works of Applied Art
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Video games generally enjoy copyright protection as computer programs pursuant to Section 69a of the German Copyright Act (UrhG) and, where applicable, as works of applied art pursuant to Section 2(1) No. 4 UrhG. Protectability covers the source code, the graphic design, and the game concept, provided that a corresponding degree of individuality and creative achievement exists. In the legal assessment, a distinction must be made as to whether only the program code is affected or whether graphic and design elements are also affected that go beyond mere code.
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Cheat Software and Interference with Copyright Powers
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In the proceedings mentioned, the Federal Court of Justice had to address the legal consequences of producing and distributing cheat software. These programs alter gameplay to the detriment of the original game concept and enable users to obtain unfair advantages. From a legal perspective, the central question was whether placing such software on the market is to be classified as an interference with copyright exploitation rights—particularly the right of reproduction and adaptation pursuant to Sections 69c, 23, 24 UrhG.
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The BGH considered it decisive whether the cheat software goes beyond permitted use and thus alters the protected software in a manner reserved to the game manufacturer’s original exploitation rights. Depending on its design and the depth of intervention, changing the gaming experience through external programs may constitute an impermissible adaptation or modification. This requires that the integrity of the original work or program part is significantly impaired by the cheat software and that the changes actually affect parts that are relevant under copyright law.
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Acts and Attribution in the Context of Liability
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In the case at issue, it additionally had to be clarified to what extent the provider of the cheat software bears perpetrator liability or at least joint responsibility for copyright infringements. What is decisive here is whether the act is directed at a use of the original software that goes beyond the end user’s intended rights of use. The distribution of cheat software may—depending on its design—be regarded as incitement or aiding and abetting a copyright infringement, provided that use by third parties sustainably impairs the author’s rights.
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Open Outcome of the Proceedings and Significance for Practice
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In its decision, the BGH emphasized that a final assessment of the copyright relevance of the specific cheat software requires further findings by the court of fact. In particular, it must be determined whether the game code or other protected elements, within the meaning of copyright law, are impermissibly modified or used through the use of the cheat software. The case was therefore remanded to the lower court and is thus not yet finally concluded with legal force. (Source: BGH, judgment of 09.02.2023 – I ZR 157/21)
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Outlook and Further Legal Considerations
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The classification of cheat software in the copyright context remains legally demanding and depends significantly on the specific mode of operation as well as the individual case. Companies, rights holders, and investors in the digital economy are faced with growing challenges in effectively enforcing their protection rights and minimizing compliance risks. For in-depth legal analyses in connection with copyright issues relating to software, video games, and related technologies, well-founded advice is recommended. Interested clients can find detailed information and direct contact details under Legal advice in copyright law.
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