Courts in the Australia and the European Union have recently considered software designed to help players of online games ‘cheat’. The EU held that such software did not infringe the copyright of game developers where the software did not change or reproduce the source code of the game or allow the game to be reproduced. In Australia, courts have found that such software which provides gamers with advantages by allowing the gamer to perform unauthorised actions would fall afoul of the laws relating to technological protection measures. Our article considers what this means for game makers and software developers in Australia.

Late last year the Court of Justice of the European Union (CJEU) handed down a landmark decision, Sony v Datel (C – 159/23), which clarified the copyright protections afforded to the makers of online games in Europe. Effectively, the Court said that software designed to help players ‘cheat’ did not infringe the copyright of game developers where the software did not change or reproduce the source code of the game or allow the game to be reproduced.

In this article Partner Michael Park, Associate Peter Divitcos and Law Graduate Ben McAdams explain how the CJEU reached this decision and what it means for online game developers and software developers in Australia.

CJEU Decision

The decision by the CJEU was the culmination of a long legal dispute between Sony, a distributor of PlayStation Video games, and Datel Design which is a group of companies that develops software. Datel developed two products which alter Sony’s game, ‘MotorStorm: Arctic Edge’, these being:

1. A software program installed by USB which alters in game variables allowing players to ‘cheat’ (i.e. by unlocking characters without reaching the necessary number of points and removing booster restrictions on cars); and
2. A sensor which connects to PSP consoles and allows them to be controlled by motion.

The CJEU found that neither product led to copyright infringement. This was because neither product changed or reproduced either the object code or the source code of the game, altered the internal structure of Sony’s software or allowed the game to be reproduced. Instead, the CJEU found that the software merely changed the content of the variables temporarily transferred by the game to the player’s RAM, and accordingly, there was no breach of the copyright held by Sony.

What is the position in Australia?

Australian copyright law protects the original expression of an idea. Copyright protection in Australia operates differently to the EU and Australian courts may reach a different conclusion regarding whether variables temporarily stored on a player's RAM are protected by copyright. In Australia, a literary work (which includes a computer program or compilation of computer programs) is made when the work was first reduced to writing or to some other material form¹. Material form includes any form (whether visible or not) of storage of the work or adaptation². In the case of visual images in a video game, it has been held that the images were “embodied” in the computer program because the computer program was capable of reproducing the images³. This goes to show that the analysis regarding temporary variables is more complex in Australia.

If temporary variables are copyright works in Australia, to establish infringement the work must also be original and a substantial part of the work must have been reproduced. Just because one part of an author’s work has been reproduced, does not by itself mean that a substantial part of the work has been reproduced. The substantial part test is qualitative, and takes into account the volume of material taken, and whether the part taken is a distinctive portion of the original.

Despite the complexities with temporary variables, Australian copyright law certainly does protect various components of a video game, including the game’s source code as a literary work, the graphics within the game as artistic works, the sounds accompanying the game as musical works, and the visual images as cinematographic film.

Technological Protection Measures as mechanisms to defeat 'cheating' software

Software which helps players to ‘cheat’ in video fames may be captured by the Technological Protection Measures (TPMs) contained within the Copyright Act 1968 (Cth) (Copyright Act).

We have already written several articles on the issue of TPMs and how they apply to VPN’s and VPN’s used for sport. In short, a TPM is a software, component or other device which is used by the copyright owner to protect their copyrighted material such as technical locks, passwords or encryption. The Copyright Act prohibits:

1. an act results in the circumvention of an access control technological protection measure (ACTPM);
2. the manufacture, import, distribution, offer, provision or communication of a device that is a circumvention device for a technological protection measure (TPM); or
3. the provision or offering of a service that is a circumvention service for a TPM.

The Australian courts recently found that 'cheating' software that provides gamers with advantages by allowing the gamer to perform unauthorised actions would fall afoul of the laws relating to TPMs. In the decision Take-Two Interactive Software, Inc v Anderson (No 2) [2024] FCA 1459, the Federal Court dealt with cheating software which didn’t change or reproduce the source code of an online game but only altered variables transferred to the player’s RAM. In that case, Take-Two Software, designers of the game Grand Theft Auto, brought an action against Anderson who had developed a downloadable software which allowed players to ‘cheat’ in Take-Two’s game. Take-Two Software had installed TPMs including the following:

• measures to check for, and report, foreign code;
• measures to suspend or ban a gamer if they attempt to use a prohibited function; and
• encryption measures to protect a gamer accessing your game’s source code or object code.

In this instance, the Federal Court found that Andersons’ software did breach the TPM laws and was ordered to stop supplying the software.

What does this mean for game makers and software developers in Australia?

• If you have not created the game’s code, graphics, sounds or characters and storyline, you do not own these components of the game. You will need to seek an assignment to own such components or a licence to use these works in your game.
• Game makers who have adequate technological protection measures inbuilt to their games are likely to be protected from 'cheating' software.
• Gaming developers should ensure the technological protection measures designed to prevent software aimed to 'cheat' their game are enforceable.
• Gaming developers should review end user license agreements and terms of service to ensure they set out the rights and limitations of users.
• Gaming developers should monitor for video game cheating activity, analyse how cheating software works and develop cheat detection and anti-cheat methods, tools and systems.

Dentons can assist you with advice on gaming software and TPMs. Please contact Partner Michael Park for further information.

1. Copyright Act 1968 (Cth), section 22.
2. Copyright Act 1968 (Cth), section 10.
3. Galaxy Electronics Pty Ltd & Gottlieb Enterprises Pty Ltd v Sega Enterprises Ltd (1997) 37 IPR 462, at 472.