Top EU Court’s Advisor Explains Why Video Game Cheats Are Not Copyright Infringement
from the it's-your-computer dept
One of the reasons that today’s copyright is such a bad fit for the modern digital world is that its roots lie deep in 18th-century law and analogue objects like books. This fact has created a kind of legislative drag that means copyright is always decades behind the latest technological developments. A case in point is the phenomenon of “cheating” in video games. Despite the negative connotations of the name, “cheating” has a remarkably rich and interesting culture. It is about extending the capabilities of a computer game, often through add-on software. That, of course, raises the hackles of companies that sell computer game software; for them, complete control over what a player does is paramount. An important legal dispute in this area, discussed on the Lexology blog, involves Sony Computer Entertainment Europe and Datel Design and Development:
Datel’s plugin enabled players to access a separate menu to skip difficult game sections on Sony’s consoles. This plugin interacted with the game’s variable data stored temporarily in the console’s RAM, avoiding any modification to the game’s original code.
Since it was filed, Sony’s legal action has been bouncing around the German legal system. Sony won initially, but that decision was later overturned. The case then passed up to the German Federal Court of Justice. Recognizing that the dispute raised important questions about copyright protection, the federal court requested an interpretation from the EU’s top legal body, the Court of Justice of the European Union (CJEU). As is usual, a preliminary opinion has been offered by one of the CJEU’s Advocates General, in this case Maciej Szpunar. Such opinions are not binding, but often indicate what the court’s thinking might be. The Lexology blog reports that Szpunar made the following important comments:
[His] opinion asserts that manipulating transient data generated during gameplay through third-party software does not infringe copyright according to the EU’s Computer Programs Directive. This distinction between protecting a game’s code and the temporary data it generates is a very significant one for all developers of game-enhancing tools.
The Advocate General also highlighted that the variable values in question are not original works of the game’s author but result from player interactions and game progression, which are unpredictable and dynamic. Since they depend on unforeseeable factors, these values lie beyond the author’s creative control.
If the CJEU agrees with this line of thinking, it would lay down a new and extremely important aspect of copyright in the digital context. It would create a distinction between the software code, whose copyright belongs to its author, and the temporary data that is produced by the user when running that code, which is not. As the Lexology post points out, that could have immediate ramifications for fields outside gaming. For example, it might confirm that plug-ins blocking ads, over which a fierce battle has been waged by a publisher against the idea, as we reported two years ago, would be perfectly legal. More generally:
If the CJEU adopts the Advocate General’s opinion, it could encourage the development and use of game plugins that enhance the player experience without violating copyright laws, potentially fostering greater innovation and user customization in gaming and other software sectors.
Implicitly, what that comment is saying is that currently copyright is an obstacle to innovation and user customization in software. Let’s hope the CJEU agrees with its Advocate General’s opinion, and sets people’s creativity free in this area.
Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to Walled Culture.
Filed Under: cheats, cjeu, copyright, eu, maciej szpunar, third-party software, transient data, video games
Comments on “Top EU Court’s Advisor Explains Why Video Game Cheats Are Not Copyright Infringement”
So, accessing RAM data to unlock DLC (that actually need to buy a key on PlayStation Store) is copyright protected since it’s the author creative work.
But accessing RAM data to manipulate in-game variables for tool-assisted speedruns (like to get more precise controlling over the game) is fine.
Nice to know that the CJEU had been able to see the difference and didn’t jump into the copyright rabbit hole.
Or it might go the opposite: because the plugin is not manipulating “data” it’s manipulating “code”. That is the code that describes the web page.
Of course all of this is bunk. The distinction between code an data is basically non-existent until the very moment of usage. The fact that the court tries to suggest such a distinction is important is troubling to me.
And to be clear, I think ad blocking plugins are a life safer. For example: I don’t give a rip how copyrighted a physical book is, if I want to tear pages out and not read them. or black out certain sections and not read them. or re-arrange the pages… I am legally entitled to do ALL of that to my book. It’s my book I own it.
Obviously following, for lucid thinkers, if I legally receive some content. how I view that content, in what order or if I view it at all, should be my choice.
But maybe that’s too much sanity and consistency for people
Re:
You’ve hit a nerve of a LOT of people with compeating intrests.
The avrage game player playing an online game wants no cheats. Cheaters are a huge problem and break games fairly quickly since at some point you have to trust the game client sending data as unless your using Stadia, some code is local.
But there is also single player games, and with those mods are HUGE, and along with that cheats to make the game easier / harder or whatever. Hacking those games is big business and no one cares other then a few publishers or game designers who shout “thats not how your ment to play my game!” (This is where your idea of totally changing your copy of a book works best)
To be fair, for actual devs code and data are clearly differnt, code would be the core doom engine, data would be the WAD file the engine reads. Obviously todays games are not build with this clear split but the idea is the same. Graphics are data, Code is what renders that data in a specific way.
Re: Re:
As an actual software developer, that simply fails to be true in general. Sure’s a great simplification of a lot of cases. But just start talking about JIT and it’s down and out.
But you say “JIT is run time generated so that code isn’t protected”. However about interpreted languages (which are increasing used in lots of things, including games), those are NOT “code” in the only clear division possible: that of what instructions the cpu executes. In fact, a lot of interpreted languages allow self modifying code (code that treats itself as data).
In the cause of web pages: you download some “data” that then directs your web browser to render the web page. But there are several things that can go into that html is the most “data” like, but there’s also javascript (and css, and the list goes on).
It’s note worthy to point out: it’s fairly common for javascript to manipulate the html (or rather the browsers internal representation of it) to change what and how objects are displayed.
So, no I am very much afraid code and data are more similar than different. And a court trying to reason on that is likely to not only confuse themselves but also come up with terrible rulings.
for amusement (mine):
Re: Re:
I hear you on the online aspect, at least as regards multiplayer games, but single player games with no multiplayer element should never have cheats blocked. Sometimes people just want to finish a game, but a too steep learning curve makes it impossible for all but gifted gamers.
So there’s a chance this ruling will make adblocker extensions legally protected, and thus make Google’s crackdowns on it illegal?
Hell yeah.
Re:
Not illegal, just less defensible.
In todays episode of everything old is new again, the EU Court’s advisor advised on the findings of Lewis Galoob Toys V Nintendo lawsuit from the US in 1992, also known as the Codemasters lawsuit, or the Game Genie Lawsuit.
Re:
Due to DMCA section 1201 and Micro Star v. FormGen Inc., Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. might be dead.
Re: Re:
The findings about fair use were not invalidated by either. Microstar is distinguished from Galoob by the transitory nature of the game genie’s derivative works, compared to the repackaged fan created levels sold as a set in Microstar. The exception to tge creation of derivative works established in Galoob is not impacted by microstar.
As for section 1201, a TPM bypasses fair use, it does not change fair use. Under 1201, your fair use can still be infringing.
Meanwhile, some game companies (Paradox, for example) outright encourage players to mess with the game’s code. Or is modding legally distinct from the “cheating” mentioned in the article?
Re:
Given some steam games disable the ability to earn achievements if playing with mods, that question may be a can of worms in itself.
Notable games that do this include Baldur’s gate 3 and Skyrim Special/Anniversary edition.
In BG3’s case, there is a mod manager built into the game as of the latest patch. Furthermore, in many cases you can still play multiplayer provided the other person has the same mod setup (granted, it’s a buggy system to my understanding)
In Skyrim’s case, the current in-game mod manager is built into the the creations menu. All of the creations that were formerly part of the prior creation club program do not disable earning achievements, while (to my understanding) the creations introduced under the new system will disable earning achievements much like playing with mods.
Given that knowledge and it’s implications, perhaps the correct question is “at what point is modding considered immoral rather than amoral?”
Minor quibble: To a gamer, “cheating” is something you do in a multiplayer game. It disadvantages other players.
Messing around with a single-player game is hacking or modding. There’s nobody to cheat against.
I was completely confused until I realized this was about single-player games.
A company has a legitimate interest in stamping out cheating in an MMO; it’s expected as part of the service because the game sucks if they don’t.
If a player wants to get around some godawful escort mission in single player… seriously, who cares?
FWIW I don’t see how copyright has anything to do with either.
Re:
Counter quibble: We still use the term ‘Wall Hacks’ regarding that kind of cheat in MOBAs and FPS games.
Re:
The game genie was long marketed as a cheat device. Codes like level select have been known as cheats since the arcade. The language reflected the advisarial nature between players and arcade cabinets built to drain quarters. That language ported over to home consoles, particularly in the ‘Nintendo hard’ era – where difficulty helped pad out games that were short due to technical limitations. Its a newer phenomenon to treat attempts to bypass content with third party tools as something other than a cheat. That is still not universally accepted by the gamers, and The legacy language is still commonplace in the industry. Your attitude is, I hope, only more broadly adopted in the future. But your strict definition is not universal and ahistorical.
As for copyright, its a bit messy when it comes to games. Copyright reserves the right to create and distribute derivative works to the holder. Under the law, when you change how a game plays from stock, it creates a derivative work. Fair use (or fair dealing) provides some ability to create such works for personal use. Modern mod frameworks use transitory modifications in part because of rulings like Galoob v Nintendo (the game genie lawsuit), that found in-ram manipulation of copyright protected elements for personal use does not violate copyright. Things like the progression of the story are protected (to some degree) by copyright.
There are many who argue that, as an interactive work, a video game is never ‘fixed in the medium’ but instead a collaborative work, and therefore while assets are protected, the gameplay itself is unprotected. That is not currently supported by precedent, and while an interesting policy discussion, it is outside the scope of my current assessment.
Re:
People were cheating in computer games and video games long before “online” was a thing. Retrodefining the word doesn’t really do anyone any good.
I do think there should be a distinction drawn though:
Modifying your personal experience of a product you consume should be legal, moral and defensible.
Modifying other people’s experience of a product they consume, against their wishes and the wishes of the company providing the service you are both using, should have safeguards, be considered not so moral, and not so defensible.
Following this, I have no issues with people requiring an account that comes with ToS to play an online game, and if they break the ToS, they lose access to the account. If they attempt to abuse the account system itself, that should open them up to criminal hacking charges.
None of this, of course, involves copyright; it’s all about contract and criminal law.
So the konami code is not copyright protected
up up dwn dwn left right left right B A
Re:
Technically, it is under copyright, but it’s been so widely disseminated that there’s no point chasing down everybody who uses it. If Konami have that much of a problem, they can just not implement it, but they instead reward the loyalty of their fans by including it in games such as Silent Hill 3.
A one-two punch (in the US)
1) Oracle v Google: Implementing APIs (interfacing with existing code without modifying said code) is not copyright infringement.
2) Non-human entities, be they animal, AI, or machine, cannot hold copyright. A program, copyrighted or not, is non-human. A program that creates data creates no copyright in that data.
Breaking a EULA? Conceivable.
Tortuous interference with business? Conceivable.
Copyright? Only if your legal strategy is to outspend your opponent. … which often works.
The Statute of Anne may have been stuck in the 18th century and analogue forms of communications, ie, BOOKS, but…
Its precursors were worse. The preceding Act, ie, Licensing of the Press Act 1662, has a Longer Title that makes its intent very clear.
ie, it’s about fucking censorship.
It gets better.
The very same Act also created AND cemented a monopoly in which only members of One Company, ie, The Stationer’s Company, were allowed to print books, own printing presses, and more importantly, censor speech.
Copyright was ALWAYS about censorship AND creating a publisher-only monopoly on ideas.
And the writers then didn’t even like the damn thing once they were through the wringer.
Copyright was always a bad fit for the world. It is an even WORSE fit for the digital world because of what it actually IS.