Microsoft's solution to having its DRM hacked: sue

When it comes to keeping Microsoft's digital rights management technology from getting hacked -- a situation that recently provoked one of the fastest patches ever to be turned around by the Redmond-based company (because of the stakes) -- the company has already shown how its technological options are limited. Within 24 hours of fixing one hacked version of Microsoft's DRM, the same hackers -- the developers of FairUse4WM (the utility that strips content of any Microsoft DRM that might have been applied to it) -- released a new version of the utility as a countermeasure to the patch. Now, Microsoft is suing those developers. It'll be an interesting test case since the hackers aren't being accused of pirating content. They're being sued for creating the tools that enable piracy which will be a harder case to make.  Sure, that case was successfully made with Napster. But the Napster network also facilitated and carried information that was critical to successfully pirating music.  But the developers of FairUse4WM play far less of an active role in any acts of piracy once "a pirate" has their tool.

Wrote Bill Rosenblatt at DRM Watch of the news:

Microsoft has filed suit against the unidentified programmers who created FairUse4WM, a hack to versions 10 and 11 of Windows Media DRM (WM DRM). In the action, Microsoft alleges that the programmers -- who are known only by the nom de keyboard "viodentia" -- infringed copyright by using some of the company's unpublished source code for WM DRM. The source code presumably includes an indication of where Microsoft hides encryption keys for WM DRM....It is interesting that Microsoft should sue these hackers for stealing source code rather than for circumventing DRM under the DMCA (17 USC 12.01)...suing under the DMCA would be a tacit acknowledgement that WM DRM is hackable -- an acknowledgement that Microsoft clearly would not care to make.

The move certainly raises the question of whether such legal options are the last resort to protecting software-based DRM.  If they are, they won't survive the international test of time (and Internet). Meanwhile, the Secure Video Processor Alliance is already out politicking, saying that hardware-based DRM is the only way to do DRM. It may be right (not that that makes DRM right).