Opinion of the Advocate General — ECLI:EU:C:2024:363
Date: 2024-04-25
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-159/23 – 1 
Case C-159/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
15 March 2023 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
23 February 2023 
Applicant and appellant on a point of law: 
Sony Computer Entertainment Europe Ltd. 
Defendant and respondent on a point of law: 
Datel Design and Development Ltd. 
Datel Direct Ltd. 
JS 
  
Subject matter of the main proceedings 
Intellectual property – Directive 2009/24/EC – Legal protection of computer 
programs – Scope – Extensions to the basic equipment of game consoles – 
Concept of ‘alteration’ – Software which changes the content of variables used in 
the running of a protected computer program 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
EN 
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Questions referred for a preliminary ruling 
1. Is there an interference with the protection afforded to a computer program 
under Article 1(1) to (3) of Directive 2009/24/EC in the case where it is not the 
object code or the source code of a computer program, or the reproduction thereof, 
that is changed, but instead another program running at the same time as the 
protected computer program changes the content of variables which the protected 
computer program has transferred to the working memory and uses in the running 
of the program? 
2. Is an alteration within the meaning of Article 4(1)(b) of Directive 
2009/24/EC present in the case where it is not the object code or the source code 
of a computer program, or the reproduction thereof, that is changed, but instead 
another program running at the same time as the protected computer program 
changes the content of variables which the protected computer program has 
transferred to the working memory and uses in the running of the program? 
Provisions of European Union law relied on 
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 
2009 on the legal protection of computer programs, in particular Article 1(1) to (3) 
and Article 4(b) 
Provisions of national law relied on  
Gesetz über Urheberrecht und verwandte Schutzrechte (Law on copyright and 
related rights) (UrhG), in particular Paragraphs 69a and 69c 
Succinct presentation of the facts and procedure 
1 The applicant, as exclusive licensee for Europe, distributes PlayStation game 
consoles, in particular the PlayStationPortable (PSP), which was distributed until 
2014, as well as games for those consoles (‘the games, software or computer 
program distributed by the applicant’), including the ‘MotorStorm: Arctic Edge’ 
game. Datel Design and Development Ltd. (‘the first defendant’) and Datel Direct 
Ltd. (‘the second defendant’) are part of the Datel Holdings Group, which 
develops, produces and distributes software, in particular complementary products 
for the game consoles distributed by the applicant, including the ‘Action Replay 
PSP’ software and, under the name ‘Tilt FX’, an additional input device for the 
PSP game console, together with software. The ‘Tilt FX’ device allows the game 
console to be controlled by motion. The first defendant developed the ‘Action 
Replay PSP’ and ‘Tilt FX’ software products. The second defendant distributed 
them. JS (‘the third defendant’) is the ‘director’ of the second defendant. 
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2 The defendants’ software products work exclusively with the applicant’s original 
games. To this end, the PSP is connected to a PC and a memory stick with the 
defendants’ software written on it is inserted into the PSP. After restarting the 
PSP, the user is able to bring up on the game console an additional menu item, 
‘Action Replay’, that can be used to make changes to individual games distributed 
by the applicant. In the case of the ‘MotorStorm: Arctic Edge’ game, those 
changes consist, for example, of the ‘Infinite Turbo’ and ‘All Drivers Available’ 
options, which remove restrictions on use of the ‘Turbo’ (‘Booster’) function or 
activate the drivers’ part otherwise released only on attainment of certain scores.  
3 With the ‘Tilt FX’ software, the purchaser receives a sensor which, once 
connected to the headset port on the PSP, enables the PSP to be controlled by 
moving the game console. The motion sensor too is deployed by inserting a 
memory stick into the PSP. This brings up an additional menu item, ‘Tilt FX’, 
together with a selection of games. Here too, the ‘Tilt FX’ software allows the 
user, by depressing a combination of keys, to call up during the game an 
additional menu not available in the original game. Selecting the ‘FX’ option from 
that menu removes certain restrictions. Thus, for example, in the case of the 
‘MotorStorm: Arctic Edge’ game, the ‘FX’ option enables unlimited use of the 
‘Turbo’ function. 
4 The applicant claims that, by using the defendants’ software products complained 
of, users alter the software underpinning its games in a manner impermissible 
under copyright law. The defendants are liable for this. In the alternative, the 
applicant asserts claims based on competition law and, in the further alternative, 
relies on tort law in alleging interference with its right to establish and operate an 
undertaking. 
5 At first instance, the applicant claimed in the end that the court should: 
I. order the defendants, on pain of specified judicial enforcement measures, to 
desist, in the Federal Republic of Germany, from 
a. offering, selling, distributing and/or having a third party offer, sell or 
distribute the Action Replay PSP software usable on hardware variants 
PSP 1000, PSP 2000, PSP 3000 and PSP Go, and deployable by the 
user to effect in respect of games running on the PSP game console an 
interference making it possible or easy to alter the games by changing 
the game software, 
b. offering, selling, distributing and/or having a third party offer, sell or 
distribute the motion-sensor-linked ‘Tilt FX’ software usable on 
hardware variants PSP 1000, PSP 2000 and PSP 3000, and deployable 
by the user to effect in respect of games running on the PSP game 
console an interference making it possible or easy to alter the games by 
changing the game software, 
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c. and from offering for download software such as that described in 
points (a) and (b) and/or licences and/or updates for such software; 
II. order the defendants to provide the applicant with information, presented in 
a chronologically ordered list and starting from January 2008, on the origin 
and channel of distribution of the products distributed to Germany, as set out 
in section I, which must include details of the names and addresses of the 
manufacturers, suppliers and other previous holders [of the products], the 
commercial buyers and customers, and the quantities and prices of the goods 
produced, delivered, received and ordered, and must be accompanied by 
supporting documentation (offers, invoices, delivery notes and customs 
documents); 
III. declare that the defendants are jointly and severally liable for compensating 
the applicant for all of the damage which it has suffered and is still suffering 
as a result of the fact that the defendants are committing and have already 
committed the acts described in section I. 
6 In the alternative, the applicant claimed that the court should prohibit the first 
defendant from supporting the acts referred to in the main head of claim set out in 
section I. In the further alternative, it claims that the defendants should be ordered 
to desist from making it possible or easy to circumvent measures to protect against 
copying the game console. 
7 At first instance (LG Hamburg (Regional Court, Hamburg, Germany), judgment 
of 24 January 2012 – 310 0 199/10, juris), the second and third defendants were 
the subject of orders upholding the main heads of claim, the second defendant was 
the subject only of a prohibitory injunction upholding the alternative head of claim 
and the action was otherwise dismissed. 
8 The parties appealed against that judgment. In the appeal proceedings, the 
applicant pursued the claims set out in sections I and II as against the second and 
third defendants and, in addition, claimed that the court should, 
I. order the first defendant, on pain of specified judicial enforcement measures, 
to desist, in the Federal Republic of Germany, from 
offering, selling or distributing the ‘Action Replay PSP’ software usable on 
the PSP 1000, 2000, 3000 and PSP GO hardware variants and the motion-
sensor-linked ‘Tilt FX’ software, and deployable by the user to effect in 
respect of games running on the PSP game console an interference making it 
possible or easy to alter the games and at the same time to change the game 
software, or offering updates to such software for download; 
II. order the first, second and third defendants to provide the applicant with 
information on the extent to which it has committed the acts described in 
section I, in particular by submitting a list setting out: 
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a) the names and addresses of the manufacturers, suppliers and other 
previous holders [of the products], 
b) the delivery quantities, type designations, item numbers, delivery times 
and delivery prices, 
c) the cost prices, including all cost factors, and the profit obtained, 
d) the individual offers, including details of the quantities offered, the 
type designations, item numbers, offer times and offer prices, 
e) the nature and extent of the advertising carried out, broken down by 
advertising medium, print run, time of publication and area of 
distribution, and  
f) the names and addresses of the commercial purchasers and commercial 
addressees of offers; 
III. declare that the first defendant is jointly and severally liable with the second 
and third defendants for compensating the applicant for all the damage 
which it has suffered and will yet suffer as a result of the fact that the first 
defendant is committing and has already committed the acts described in 
section I. 
9 The appeal court (OLG Hamburg (Higher Regional Court, Hamburg, Germany) 
dismissed the applicant’s appeal and, in response to the defendants’ appeal, varied 
the judgment at first instance and dismissed the action in its entirety. 
10 The appeal court considered the action alleging copyright infringement to be 
permissible but unfounded. It stated that the applicant does not have standing to 
assert the rights to obtain a prohibitory injunction that are provided for in the first 
sentence of Paragraph 97(1) and Paragraph 69c, point 2, of the 
Urheberrechtsgesetz (Law on Copyright) (UrhG). The use of the defendants’ 
software does not lead to an alteration of the computer programs underpinning the 
applicant’s original games. It is true that the applicant’s games meet the 
conditions of definition as a computer program laid down in Paragraphs 69a of the 
UrhG. In accordance with Paragraphs 69a and 69c of the UrhG, however, the 
object of the copyright protection afforded to a computer program consists of the 
program data of the object code and the source code and the internal structure and 
organisation of the computer program, but not the running of that program as 
prescribed. The defendants’ software does not make any change either to the 
programs themselves or to the copies of the programs that are uploaded to the 
PSP’s working memory. Parallel instructions issued from it change only the 
variable data saved by the computer game to the working memory and thus bring 
about a change in the result of the game. The functional approach advocated by 
the applicant, whereby, irrespective of any influence exerted upon the program 
code or of any modified reproduction of that code, an alteration must also be 
assumed to be present in the case where the running of the program is interfered 
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with in some other way, is irreconcilable with the object of the protection afforded 
to a computer program as defined in Paragraph 69a of the UrhG. The running of a 
computer program as prescribed is not covered by the exclusive right of alteration 
provided for in Paragraph 69c, point 2, of the UrhG. The author of a computer 
program has no right derivable from Paragraphs 69a or 69c of the UrhG to be 
assured that his/her program will be used only in the chronological order he/she 
originally intended, provided that – as in the case at issue – the game, even if 
influenced by third parties, runs as prescribed by the program and the individual 
game scenarios are provided for by the game software itself. 
11 By its appeal on a point of law, which the appeal court allowed it to bring and the 
defendants contend should be dismissed, the applicant continues to pursue the 
heads of claim it raised on appeal.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The success of the appeal on a point of law depends, so far as the applicant’s main 
heads of claim are concerned, on whether the use of the defendants’ software 
infringes the exclusive right to alter a computer program which the applicant 
claims to have under Paragraph 69c, point 2, of the UrhG. The application of that 
provision raises questions as to the interpretation of Article 1(1) to (3) and 
Article 4(1)(b) of Directive 2009/24/EC. 
13 The applicant complains of an infringement of the exclusive right to alter a 
computer program which it claims to have under Paragraph 69c, point 2, of the 
UrhG. 
14 Question 1: The issue is whether Article 1(1) and (2) of Directive 2009/24/EC is 
to be interpreted as meaning that there is an interference with the protection 
afforded to a computer program under Article 1(1) to (3) of Directive 2009/24/EC 
in the case where it is not the object code or the source code of a computer 
program, or the reproduction thereof, that is changed, but instead another program 
running at the same time as the protected computer program changes the content 
of variables which the protected computer program has transferred to the working 
memory and uses in the running of the program. 
15 According to the appeal court’s findings, which are not challenged on appeal on a 
point of law, the effect of the defendants’ software products is to leave untouched 
the loading of the program to the working memory but to influence the running of 
programs by making changes to variables which in principle form part of the 
game. Changes are not made to the instructions in the working memory 
themselves but only to the (variable) data which the game software saves to the 
working memory during the execution of those instructions. The program 
instructions from the applicant’s game software likewise remain active and their 
internal structure untouched. It is only data in the working memory which have 
been generated from the game in play that are changed. Thus, the game’s 
instructions are executed on the basis of values different from those that would 
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have arisen at this point in regular play. Even when the defendants’ software is 
being used, the game always runs as prescribed by the program. However, the 
defendants’ software overwrites certain data generated during the game (for 
example, use of the ‘Turbo’ function) and saved to the working memory with 
values which are also known to, and can be interpreted by, the game itself. The 
program is thus presented with a scenario which, although capable of arising 
during regular game operation and forming an integral part of the program, would 
not arise at the score concerned. For example, the defendants’ software does not 
add an instruction triggering a ‘crash barrier collision’; it simply influences when 
and how often the game executes that instruction, which likewise forms part of the 
original program. 
16 The decisive criterion in the case at issue, therefore, is whether the content of 
variables which the computer program saves to and uses in the working memory 
of the game console still falls within the scope of the protection conferred by 
copyright in the computer program. It is important to bear in mind in this regard 
that variables of the category in question are fully provided for by the applicant’s 
software and it is only the content of those variables that is changed by use of the 
defendants’ software during play, inasmuch as there is a change, for example, in 
the timing or frequency of the execution of a command as dictated by the value of 
those variables. Whether such an influence on the variable data generated during 
play and saved to the working memory of a computer program constitutes in and 
of itself an interference with copyright, is unclear. 
17 In accordance with the first sentence of Article 1(1) of Directive 2009/24/EC (see 
Paragraph 69a(4) of the UrhG), Member States are to protect computer programs, 
by copyright, as literary works within the meaning of the Berne Convention for 
the Protection of Literary and Artistic Works (the Berne Convention). In 
accordance with the second sentence of Article 1(1) of Directive 2009/24/EC and 
Paragraph 69(1) of the UrhG, the term ‘computer program’ is to include their 
preparatory design material. In accordance with the first sentence of Article 1(2) 
of Directive 2009/24/EC and the first sentence of Paragraph 69a(2) of the UrhG, 
the protection so granted is to apply to any form of a computer program. In 
accordance with the second sentence of Article 1(2) of Directive 2009/24/EC and 
the second sentence of Paragraph 69a(2) of the UrhG, ideas and principles which 
underlie any element of a computer program, including those which underlie its 
interfaces, are not protected by copyright. In accordance with the first sentence of 
Article 1(3) of Directive 2009/24/EC and the first sentence of Paragraph 69a(3) of 
the UrhG, a computer program is to be protected if it is original in the sense that it 
is the author’s own intellectual creation. In accordance with the second sentence 
of Article 1(3) of Directive 2009/24/EC and the second sentence of 
Paragraph 69a(3) of the UrhG, no other criteria are to be applied to determine its 
eligibility for protection. 
18 Both the wording of the rules laid down in Directive 2009/24/EC, on the one 
hand, and the context and drafting history of that legislation, on the other, 
probably support an interpretation of the concept of computer program which is 
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informed by the source code and the object code as expressions of the work 
uniquely self-styled by the programmer (author), and does not therefore include 
[within that concept] a mere act of influencing the variable data generated in the 
computer’s working memory during play. 
19 According to the wording of the first sentence of Article 1(1) of Directive 
2009/24/EC, computer programs are to be protected, by copyright, as literary 
works within the meaning of the Berne Convention. A computer program is 
initially written in the form of a ‘source code’ in a programming language 
comprehensible to humans, before being transcribed into a functional form which 
the computer can understand, that is to say, into the form of an ‘object code’, by 
means of a special program called the ‘compiler’ (see Court of Justice, judgment 
of 6 October 2021, Top System, C-13/20, EU:C:2021:811, paragraph 35). 
Article 10(1) of the TRIPS Agreement provides that computer programs, whether 
in source or object code, are to be protected as literary works under the Berne 
Convention. The source code and the object code of a computer program are thus 
the forms of expression thereof and therefore benefit from the copyright 
protection afforded to computer programs. The object of the protection conferred 
by Directive 2009/24/EC is the expression in any form of a computer program 
which permits reproduction in different computer languages, such as the source 
code and the object code (Court of Justice, judgments of 22 December 2010, 
Bezpečnostní softwarová asociace, C-393/09, EU:C:2010:816, paragraphs 33 to 
35, and of 6 October 2021, Top System, C-13/20, EU:C:2021:811, paragraph 36). 
The foregoing principle is also supported by recital 15 of Directive 2009/24/EC, 
according to which the unauthorised reproduction, translation, adaptation or 
transformation of the ‘form of the code’ in which a copy of a computer program 
has been made available constitutes an infringement of the rights of the author. 
20 The drafting history of the EU-law provisions on the copyright protection of 
computer programs also appears to support the proposition that a computer 
program is to be understood on the basis that it is the embodiment of the result of 
programming. Thus, during the preparations for Directive 91/250/EEC, which was 
replaced by Directive 2009/24/EC, the Commission took the view that a computer 
program is to be understood as being a set of instructions the purpose of which is 
to perform a particular function or task (Commission proposal for a [Council] 
directive on the legal protection of computer programs, COM (88) 816 final, OJ 
1989 C 91, pp 5 and 9; see also the European Commission’s Decision of 24 March 
2004 – COMP/C-3/37.792 – C(2004)900 final, paragraph 21 – Microsoft). 
Consistent with the foregoing is Section 1(i) of the Model Provisions of the World 
Intellectual Property Organisation (WIPO) on the Protection of Computer 
Software (GRUR Int. 1978, 286). This states that ‘computer program’ means a set 
of instructions capable, when incorporated in a machine-readable medium, of 
causing a machine having information-processing capabilities to indicate, perform 
or achieve a particular function, task or result. 
21 On the basis of those principles, there has been no interference with the protection 
conferred by Article 1 of Directive 2009/24/EC in the case at issue. The appeal 
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court thus found, without objection from the parties, that the software used by the 
applicant in the PSP fulfils the conditions of definition as a computer program, but 
that the defendant’s software changes neither the program data of the object code 
and the source code nor the internal structure and organisation of the game 
software or of the operating system software of the games distributed by the 
applicant. 
22 The appellant on a point of law, on the other hand, takes the view that both the 
wording and the drafting history of Directive 2009/24/EC support the proposition 
that the contents of the contested variables uploaded to the working memory fall 
within the scope of the protection afforded to a computer program by Article 1 of 
Directive 2009/24/EC. In its submission, it follows from the definition of 
‘computer program’ given in Section 1(i) of the WIPO Model Provisions as a set 
of instructions capable, when incorporated in a machine-readable medium, of 
causing a machine having information-processing capabilities to indicate, perform 
or achieve a particular function, task or result that the decisive criterion lies in the 
purpose of the controlling program structures. Consequently, the term ‘computer 
program’ also includes any such parts of the set of instructions as contribute 
towards achieving planned results or enabling certain functions. The task of the 
computer games at issue is to use dynamic game play to achieve an entertaining 
and challenging gaming experience. Dynamic gameplay is the result of the 
combination of program instructions and variable data that influence those 
instructions. How a game plays out depends on the variable data saved to the 
working memory. Those data are subject to constant change by the game’s 
software, depending on how the game is progressing. The running of the program 
is dependent on the generation during the game of certain parameters which are 
used again later as the program dictates. The achievement, as a product of the 
dynamic running of the program, of a result specifically determined by the author 
(such as, for example, the player’s no longer being able to deploy a ‘booster’) is 
necessarily contingent upon the variables which the author intended to be saved to 
the working memory for that very process. Consequently, the values stored in the 
working memory are not merely the random, technically unavoidable products of 
running of game. The program’s objective – of providing a particular gaming 
experience – presupposes that certain variable data can be retrieved from the 
working memory. If, contrary to the rules of the game, other data are saved there 
as the program runs on, the result of the gaming experience will change and the 
objective pursued by the program will not be achieved. 
23 In the view of the referring court, it is uncertain whether the programmer’s 
intention, as shaped by the desired objective of designing an entertaining 
gameplay experience, that program instructions should be based only on variable 
data arising during the course of the program in accordance with the rules of the 
game, can be taken into account when it comes to determining the scope of the 
protection afforded to computer programs. Article 1(2) of Directive 2009/24/EC 
provides that protection in accordance with that directive is to apply to the 
expression in any form of a computer program (first sentence); ideas and 
principles which underlie any element of a computer program, including those 
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which underlie its interfaces, are not protected by copyright under that directive 
(second sentence; see also recital 11 of Directive 2009/24/EC). In international 
law, both Article 2 of the WIPO Copyright Treaty and Article 9(2) of the TRIPS 
Agreement provide that copyright protection extends to expressions but not to 
ideas, procedures, methods of operation or mathematical concepts as such. Neither 
the functionality of a computer program nor the programming language and the 
format of the data files used in a computer program in order to exploit certain of 
its functions constitute an expression of that program for the purposes of 
Article 1(2) of Directive 2009/24/EC. To accept that the functionality of a 
computer program can be protected by copyright would amount to making it 
possible to monopolise ideas, to the detriment of technological progress and 
industrial development (Court of Justice, judgment of 2 May 2012, SAS Institute, 
C-406/10, EU:C:2012:259, paragraphs 35 to 40). On that basis, the result of using 
a computer program that arises during the running of that program is probably not 
covered by the protection of the computer program. 
24 The appellant on a point of law submits that, in accordance with the first sentence 
of Article 1(1) of Directive 2009/24/EC, Member States are to protect computer 
programs, by copyright, as literary works within the meaning of the Berne 
Convention. It is not only the actual textualisation of the idea, and thus the form 
directly given to that idea, that are protectable by copyright, but also any uniquely 
self-styled components and formative elements of that work that might be present, 
for example, in the development of the plot and the setting of scenes. So far as 
concerns computer programs, it follows that it is not only the machine-readable 
code that is protectable, but also the program concept as a uniquely self-styled 
component of that program, including, therefore, the variable data saved to the 
working memory, too. 
25 That view is almost certainly untenable. Plot development and scene setting may 
be expressed in the program data of the object code and the source code. This is, 
arguably, also true of the variables, created by the developer as a category in their 
own right, that help determine how the plot develops. According to the findings 
reached by the appeal court, however, the defendants’ software specifically does 
not interfere with these plot-defining program elements created by the developer, 
but changes only the variable content generated by the user during play. That 
content is not in itself, however, the expression of a self-styled creation unique to 
the author, but has to do with the particular way in which the program runs in 
response to the user’s behaviour. The defendants’ software does not change the 
development of the plot or the setting of scenes, but only the order or frequency of 
action replays or scene successions. The copyright protection of plot development 
and scene setting which the appellant on a point of law claims to exist thus itself 
seeks to protect the idea, progression and functionality of the program in a way 
which is not provided for in Directive 2009/24/EC. 
26 Question 2: It also falls to be ascertained whether an alteration within the meaning 
of Article 4(1)(b) of Directive 2009/24/EG is present in the case where it is not the 
object code or the source code of a computer program, or the reproduction thereof, 
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that is changed, but instead another program running at the same time as the 
protected computer program changes the content of variables which the protected 
computer program has transferred to the working memory and uses in the running 
of the program. 
27 The appeal court – proceeding on the basis of its assessment that, in the case at 
issue, the defendants’ software does not interfere with the object of the protection 
afforded to computer programs as defined in Paragraph 69a of the UrhG, because 
there is no modification of the object code, source code or inner structure of the 
applicant’s computer program – took the view that an alteration within the 
meaning of Paragraph 69c, point 2, of the UrhG is not present. A functional 
approach to this question, whereby, irrespective of any influence exerted on the 
program code or of any modified reproduction of that code, an alteration can also 
be assumed to be present in the case where the running of the program is 
interfered with in some other way, is not compatible with the object of protection 
defined in Paragraph 69a of the UrhG. For, running the program as prescribed is 
not part of the object of the protection afforded to a computer program and is not 
therefore protected against the exertion of external influence by the exclusive 
rights provided for in Paragraph 69c of the UrhG. The functionality of a program 
does not benefit from the protection which the computer program enjoys and the 
mere use of a work – in contrast to technical rights of use – is not protected as a 
form of use under copyright law. The author of a computer program does not 
therefore have any right derivable from Paragraphs 69a and 69c of the UrhG to be 
assured that his/her program will be used only as he/she intended, so long as the 
game, even when influenced by third parties, runs as prescribed by the program 
and the individual game scenarios are provided for by the game itself. 
28 The appellant on a point of law, on the other hand, assumes that an alteration does 
not presuppose any interference with the substance of the program. What matters 
here is that, in a particular game scenario, the program runs on the basis that only 
very specific variable content will be saved and subsequently retrieved, and that 
other variable content is to be saved only under other conditions. The use of 
incorrect variable content is in itself an interference. 
29 Whether the assumption as to the existence of an alteration within the meaning of 
Article 4(1)(b) of Directive 2009/24/EC and Paragraph 69c, point 2, of the UrhG 
requires a change to have been made to the substance of the computer program in 
the form of the source code or the object code is a matter of dispute. One view is 
that the assumption as to the existence of an alteration requires there to have been 
an interference not with the substance of the computer program but only with the 
running of that program (OLG Hamburg (Higher Regional Court, Hamburg), 
GRUR-RR 2013, 13 [juris paragraph 62]). Another view is that an alteration 
always presupposes that influence has been exerted on the source code or the 
object code, and thus on the substance of the computer program (LG München I 
(Regional Court, Munich I) MMR 2015, 660 [juris paragraph 288 et seq.]; LG 
Hamburg (Regional Court, Hamburg), CR 2016, 782 [juris paragraph 28]; LG 
Hamburg (Regional Court, Hamburg), order of 22 July 2016 – 308 O 244/16, 
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BeckRS 2016, 137325 [paragraph 11]; LG Hamburg (Regional Court, Hamburg), 
GRUR-RR 2022, 253 [juris paragraph 52]). The referring court inclines towards 
the latter view. The very word ‘Umarbeitungen’ [in German] indicates – as the 
term ‘alteration’ in the English-language version [of the Directive] does too – that 
influence must be exerted on the source code or the object code and that the mere 
influencing of variable functional results generated in the course of the running of 
the program is not sufficient. The position may well be otherwise if the Court, in 
connection with Question 1, considers such functional results to be part of the 
copyright protection afforded to computer programs. In that event, a modifying 
interference with the computer program would be present even in the case of an 
act of influencing the content of variables such as that at issue in the present 
dispute.