“Action Replay” – the German Federal Supreme Court submits questions on copyright protection against “cheating” devices for PlayStation Portable games to the European Court of Justice

In a legal dispute that has been ongoing for more than 10 years between Sony and the manufacturers and distributors of the “Action Replay” hacking devices, the German Federal Supreme Court has now referred two questions to the Court of Justice of the European Union (“CJEU”) concerning the scope of copyright protection for computer programs[1]: 1) Is variable data in random access memory part of a computer program protected under copyright law? 2) Does the modification of such data by other software constitute an unauthorised alteration of this computer program? There are substantial arguments for and against copyright protection. The Federal Supreme Court appears to favor a narrow construction of the relevant provisions, thereby limiting the extent of the author’s right of alteration of the original code. However, the CJEU may also draw on substantial arguments supporting a broader, more technology-neutral understanding of the law.