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Key takeaways

The Belgian State had decompiled software it used in order to fix its bugs. The publisher claimed infringement. The Court of Justice sided with the user: the lawful acquirer of a program may decompile it to correct its errors, without having to meet the strict conditions of the interoperability exception. The contract can, however, regulate this possibility.

For emulation, the door nevertheless stays shut. Emulating a console has never been about fixing bugs, so this justification cannot be used to decompile its system.

The ruling is based on the provision allowing the lawful acquirer to carry out the acts necessary to use the program in accordance with its intended purpose, including error correction, found in France in Article L. 122-6-1, I of the Intellectual Property Code. Two limits frame this possibility: decompilation must be confined to what is necessary, and its result cannot be used for anything else. A contract may organise how it is exercised, not remove it.

One avenue remains to be explored for video games: patches designed by players for games their publisher no longer maintains. The error-correction argument could find some ground there, for the software part only and solely for the benefit of the lawful acquirer.