Mods and the legal protection of computer programs

For game developers, mods can broaden a game's audience and increase community engagement. However, mods can also disrupt the balance of competitive games and reduce demand for official content, potentially impacting long-term revenue. For instance, Bethesda Game Studios is known for promoting mods in titles like Skyrim and Fallout, while Activision Blizzard has been more restrictive with them in games such as Call of Duty.

The legal landscape surrounding mods is complex and constantly evolving. A significant development in this area is the recent ruling from the Court of Justice of the European Union (CJEU) in case C-159/23 (Sony v. Datel), which may have important implications for game developers, players, and modders alike.

In summary, the context of the case was as follows: Until 2014, Sony sold the PlayStation Portable (PSP). Datel offered software for the PSP enabling functions not originally available in certain PSP games (such as unlimited boost in function in the PSP game MotorStorm: Arctic Edge). Sony sued Datel in Germany, alleging that Datel's products modified its game software, violating Sony's exclusive rights. The German Federal Court of Justice (BGH) requested the CJEU to interpret the Directive 2009/24/EC on the legal protection of computer programs. 

The CJEU considered that Datel’s software was installed by the user on the PSP and ran at the same time as the game software, but that it did not change or reproduce the object code, the source code or the internal structure and organization of Sony’s software. Instead, Datel’s software merely changed the content of the variables temporarily transferred by Sony’s games to the PSP's RAM. The CJEU found that this did not violate Sony's exclusive rights under Directive 2009/24/EC. Specifically, the CJEU ruled that Article 1(1) to (3) of Directive 2009/24/EC on the legal protection of computer programs 

"must be interpreted as meaning that the content of the variable data transferred by a protected computer program to the RAM of a computer and used by that program in its running does not fall within the protection conferred by that directive, in so far as that content does not enable such a program to be reproduced or subsequently created."

Although this ruling by the CJEU provides a welcome clarification on the scope of protection for computer programs under Directive 2009/24/EC, it is important to note that there are still other avenues for game developers to control or restrict modding in their games. For example, game developers may implement EULAs that specifically prohibit modding or technical measures to prevent unauthorized mods.