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) -- because FairUse4WM would seem to be a clear case of circumvention. We can think of a couple of possible reasons why Microsoft might do this.  First, a DMCA lawsuit would put the company in a negative light with swaths of the software community.  This happened to Adobe a few years ago when it attempted to sue Russian programmer Dmitri Sklyarov for circumventing the DRM in Adobe's eBook technology for his company, Elcomsoft; Adobe withdrew the litigation under intense pressure from the technology community.  A different ground for the lawsuit could avoid this negative PR. 

More importantly, 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 implication in Microsoft's actions is that the only way to hack WM DRM is with the "unfair" advantage of source code.  Of course, security purists might argue that any security scheme that is hackable through access to source code is one that relies on "security by obscurity" and thus deserves to be hacked.

Whatever the reason, these hackers are proving as resilient as they are elusive; they have revised FairUse4WM to keep up with patches that Microsoft has issued.  Nevertheless, the media companies that license content to services that use WM DRM technology -- including Napster, Rhapsody, Movielink, CinemaNow, Amazon Unbox, Virgin Music Club, Yahoo! Music Unlimited, and many others -- have not threatened to pull their licenses from these services (at least not publicly).  It's widely agreed that no DRM is hackproof; this episode is just the latest proof of the theory that the factor most likely to affect a DRM technology's succeptibility to hacks is the size of its installed base.

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