In the never-ending cat-and-mouse game between digital media distributors and enthusiastic code breakers, the latter seem to have gained the upper hand when it comes to HD DVD and Blu-ray disks. Already twice this year amateur programmers have released keys for these next-generation DVDs, enabling playback and copying via unlicensed devices. The inability of copyright authorities to stay ahead—by issuing either new keys or cease-and-desist orders—prompts the question of whether such policies are the best way to balance fair use with intellectual-property rights.

When DVDs came out in the mid-1990s, the entertainment industry tried to protect their content from piracy through an encryption scheme called the content scrambling system (CSS). Playback devices needed a 40-bit key to unlock the encrypted files. In 1999 hackers exploited a cryptographic weakness of CSS and created a program called DeCSS, which enabled unlicensed machines to play DVDs. As cryptographer Bruce Schneier, founder of the security consultants BT Counterpane, once remarked, making digital files impossible to copy is about as easy as making water not wet. So copy protection fell to the passage of laws such as the Digital Millennium Copyright Act, passed in the U.S. in 1998, which makes circumventing access-control measures on digital media illegal.