On October 17, 2024, the Court of Justice of the European Union issued a ruling, stating that the use of ‘Cheat Software’—provided it only temporarily alters variables in the system’s memory—is permissible under copyright law when assessed solely within the framework of the EU Software-Directive. This decision comes shortly after significant rulings in the US where courts have sided with video game publishers and developers, finding that, in certain circumstances and depending on the technical design of the software, the use of cheat software constitutes a copyright infringement. At first glance, this contrast suggests that European software copyright law appears to be more lenient, while the US, particularly under the Digital Millennium Copyright Act, takes a stricter approach to ‘Cheat Software’. In the context of this paper, the aim is to determine whether this is indeed the case. Therefore, it delves into the recent Court of Justice of the European Union ruling and explores how a similar legal issue might have been addressed under US software copyright law.
The analysis focuses primarily on the questions referred to the CJEU, particularly concerning whether variables stored in RAM fall within the scope of protection under Article 1 of the Software Directive and draws comparisons between European and American legislation and case law. Additionally, it investigates whether modifying such variables constitutes an alteration under Article 4 of the Software Directive, which would be within the exclusive rights of the copyright holder. From a US standpoint, the evaluation centers on whether the variables in Random Access Memory qualify as derivative work and whether their reproduction falls outside the scope of the Fair Use doctrine. The analysis thereby considers both statutory laws, including the Copyright Act of 1976 and the Digital Millennium Copyright Act of 1998, as well as key case law, such as ‘Lewis Galoob Toys Inc v Nintendo of America Inc’ (9th Cir 1992) and ‘MDY Industries LLC v Blizzard Entertainment Inc and Vivendi Games Inc’ (2010).
Some argue the ‘Cheat Software’ decision of the CJEU holds significant importance for both the gaming and software industries, particularly in relation to its applicability to other relevant issues like ‘Ad-blockers’. That’s why various experts describe the decision as ‘game-changing’. But it should be emphasized that this ruling applies solely to ‘Cheat Software’ that temporarily modifies variables in the system’s memory and does not take into account the EU InfoSoc Directive or any other EU directives besides the Software Directive. Therefore, the ruling does not extend to other types of cheat software, particularly those that modify the underlying code. As a result, the decision may not carry as much significance as it initially appears. This should be considered when assessing the decision in comparison to how it would be evaluated under US law.