If you are not a 18 years old, a computer geek, a web jockey or a DVD pirate, you may not have heard about the battle raging on the internet and elsewhere over this “Da Vinci Code”-like sequence of numbers and letters:

70 H1 88 20 6F 2B 32 65 P9 17 97 33 E1 85 A6 66

Actually, that is not the actual sequence; that is just an example of what such codes look like. The Scoreboard isn’t printing the actual sequence because it’s someone else’s property, and the Scoreboard doesn’t have permission to reproduce it. The code has been stolen, and its only use in the hands of someone other than the owners is illegal. It is over the right to publish, circulate and use this purloined intellectual property that scores of self-righteous bloggers and movie thieves are staging an impressive protest.

Impressive, and absolutely wrong.

Ethically, this isn’t even a close call. The sequence is a so-called “processing key” that will unlock every HD-DVD that pre-dates recent versions that use a different code. A processing key is intellectual property. As such, it has value, can be licensed, and exists for the sole use of authorized parties. A hacker who calls himself, herself or itself “Arnezami” stole the code, and soon it was being proudly posted all over the web. Note that this is stolen property, and taking it without authorization is no different from stealing Coke’s secret formula or the nuclear missile launch codes. The various web-heads who are distributing the stolen code are intentionally facilitating a crime: copying movie DVDs, which means that artistic products are being acquired without fair compensation. If the code is used to reproduce such movies for sale to others, this is additional theft, and is also a crime.

The self-styled rebels publicizing the code evoke the First Amendment, as if the Constitution allows anyone to publish copyrighted material at will. It doesn’t. The Advanced Access Content System Licensing Administrator, which oversees the technology used in DVD manufacture, is quite properly attempting to stop the spread of the code with legal threats; early in its campaign, it managed to shut down the first website to aggressively publicize the stolen sequence. Of course, the effort is both symbolic futile…aspiring movie thieves already have the sequence, and ethically-challenged troublemakers are even using it on T-shirts, songs, quizzes, domain names, even pet names. Yes, once a hacked access code is placed on the web, it’s gone. That doesn’t mean that those who circulate it have a valid ethical argument. They do not. They have, and make, an absolutely unethical argument, which, once you strip away all the jargon and rationalizations, is simply this: “Stealing isn’t wrong if enough people do it.” A further translation is: “It’s just so cool getting to see these movies without paying for them.”

Welcome to the ethics of the Web Generation.

And be very afraid.

An interesting conundrum is posed by Google, which also is publishing the code in the course of performing its magically thorough searches. Google, so far at least, is claiming the right to do, just as it will direct users to websites that may be perpetrating frauds or other crimes. Is it Google’s legal or ethical responsibility to police the web? Clearly not. But Google’s publishing a sequence that only is useful as a means of stealing movies is indistinguishable from any other website doing the same, even though Google is only performing its usual function and the other sites are actively trying to facilitate theft. It is a tough question in ethics and law. The Scoreboard reluctantly concludes that when providing web navigation involves publicizing stolen access codes without permission, Google shouldn’t do it. The Scoreboard also admits that it found the details of this story by Googling the code sequence itself, which arrived as spam. And this is the crux of Google’s defense. To Google, the sequence is just web content.

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For the record, here is the letter the AACS has sent to websites, such as Google, that post the DVD-cracking sequence:

Sent via: express mail
Re: Illegal Offering of Processing Key to Circumvent AACS Copyright Protection

Dear XXXXX,

We represent Advanced Access Content System Licensing Administrator, LLC (AACS LA), developer, proprietor and licensor of the Advanced Access Content System (AACS). AACS is an integrated set of technological protection measures that controls access to and prevents unauthorized copying of copyrighted motion pictures embodied on high definition DVDs.

It is our understanding that you are providing to the public the above-identified tools and services at the above referenced URL, and are thereby providing and offering to the public a technology, product, service, device, component, or part thereof that is primarily designed, produced, or marketed for the purpose of circumventing the technological protection measures afforded by AACS (hereafter, the “circumvention offering”). Doing so constitutes a violation of the anti-circumvention provisions of the Digital Millennium Copyright Act (the “DMCA”), 17 U.S.C. §§ 1201(a)(2) and 1201(b)(1). Providing or offering the circumvention offering identified above, and any other such offering that is primarily designed or produced to circumvent protection measures, or which has only limited commercial significant purpose other than to circumvent, or which are offered to the public with knowledge that it is for use in circumventing, violates the rights of AACS and any others harmed as well. See §§ 1201(a)(2), 1201(b)(1), and 1203.

In view of the foregoing apparent anti-circumvention violations, we demand that you immediately:

1) remove or cause to be removed the above-specified AACS circumvention offering and any other circumvention offering which is designed, produced or provided to circumvent AACS or to assist others in doing so, and/or any links directly thereto, from the URL identified above and from any other forum or website on which you have provided any circumvention offering; and

2) refrain from posting or causing to be provided any AACS circumvention offering or from assisting others in doing so, including by direct links thereto, on any website now or at any time in the future.

Failure to do so will subject you to legal liability.

Please confirm to the undersigned in writing no later than noon a week from the above-indicated date that you have complied with these demands. You may reach the undersigned by telephone at [private] or by email at [private]@proskauer.com. AACS LA reserves all further rights and remedies with respect to this matter.

Very truly yours,

[private]
Counsel for AACS LA

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