Summary:  A librarian decides that iPhone users can jailbreak their phones.  The Librarian of Congress exercise his rulemaking authority and determined classes of works that are exempt from DMCA prohibitions of circumventing security technologies on digital media.  The basic principle is that access constraints should not preclude what would otherwise be fair use such as commentary, education or criticism.  In addition to setting free the smartphones, the rules also extend a class to documentary filmmakers (and others, though those “others” are not discussed here).

By coincidence, a 5th Circuit ruling was issued at about the same time (July 26, 2010) confirming many of the principles inherent in the rulemaking by the Librarian of Congress.  See MGE UPS Systems Inc v. Power Protc Svc LLC, et al.

Introduction

Marian the Librarian in Music Man notwithstanding, it is rare that decisions by a librarian generate vast amounts of commentary that can be fairly called “breathless exultation.”

Well, OK, so it’s the librarian who runs the Library of Congress.  He’s in charge of copyrights.  And it’s the iPhone.

In case you have been living in a cave for the past 48 hours: the Librarian of Congress ruled that jailbreaking a smartphone for two particular purposes does not cause liability under a particular section of the Digital Millennium Copyright Act (for the legal wonks, the ruling relates to Section 1201).

But wait there’s more:  In addition to other “uses” that are now permitted, certain users can crack the Digital Rights Management program on movie DVDs for purposes that have always been considered fair use.  And a teaser so you’ll read more:  Documentary filmmakers now have a bit of freedom.

The Context

Before getting into a bit more detail, let’s consider the setting.  The DMCA makes it a bozo no-no to crack the security codes preventing access to copyrighted material (let’s call that “jailbreaking”).  However, DMCA also commands the Librarian of Congress every three years to review the impact of this section on Fair Use and to create classes of works exempted from prohibitions on jailbreaking.  And that is just what he did (see the entire document—which is worth reading.  See

http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.html.)

By ironic coincidence, a 5th Circuit opinion was issued that also provides common law basis for certain types of jailbreaking.  You can find the opinion at http://www.appellaterecord.com/uploads/file/MGE.pdf.

How Fair Use Is Involved

Basically, the Librarian articulates a principle that he (OK, the Library of Congress) does not like technologies that, in blocking access, also preclude what would otherwise be “fair use.”  In the case of the iPhone, it is personal, non-commercial use.  In the case of movie DVDs, it is for education, commentary and criticism.

Jailbreaking Smartphones

The ruling enables users to jailbreak smartphones for two purposes.  The first is to enable a user to download and use pretty much whatever applications that user wants to use.  Google Voice, long prohibited from the iPhone, can now be used.  This also means that you can create your own apps and use them on your iPhone (though why you would do that is anybody’s guess:  the App Store works pretty well).

The second permitted use is somewhat more compelling.  You can jailbreak a smartphone in order to use it on other networks.  Yep.  That got you to sit up.  That’s right:  You can now use your iPhone on the Verizon, T-Mobile, Sprint or other mobile networks.

What you cannot do: Well, you probably cannot make a business out of this.  The decision by the Librarian of Congress rests entirely upon the use being personal and non-commercial.

Jailbreaking Movie DVDs

The Librarian also expanded a previously created class of works, in this case by adding the use by documentary filmmakers of short clips in their films that are commentary or criticism.  Quoting from the website above, the rulemaking permits jailbreaking the DVD

when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i)         Educational uses by college and university professors and by college and university film and media studies students;

(ii)        Documentary filmmaking;

(iii)       Noncommercial videos

It looks like documentary filmmakers could use these clips for commercial purposes.  However, what this decision does not do is change the Fair Use doctrine and its accreted case law.  In other words, when a filmmaker uses a clip from a DVD then he or she must still take the risk that the use of the clip will be protected by the Fair Use defense if the copyright owner files suit.  (Remember:  Fair Use is not a “permit” but only a defense if sued.)

Advertisements

Summary:  The Tribune Company just launched Tribune 365 (www.trb365.com) that claims to provide integrated marketing campaigns—that is, ads across multiple platforms available within the Tribune media—newspapers (e.g., The Chicago Tribune and The Los Angeles Times), other print outlets and television stations.  In fact—and probably more important—it represents integrated ad sales:  one team to sell ad inventory across all of their platforms (and, with hope, others, as well).  We think this is a brilliant step—and long, long overdue.

The Details.

It is pretty straightforward—and both astonishing and understandable (OK, OK, so it’s a contradiction:  Call it a paradox)—that a major, and heavily indebted, media company has finally figured out one of their biggest assets:  multiple platforms.  The Tribune Company’s initiative is called Tribune 365 (www.trb365.com).

Selling ads across these platforms to an advertiser in what the ad industry calls “integrated ad campaigns” becomes a lot more attractive.  More to the point, they overcame one of the biggest obstacles, which is the silo-like ad sales structures of newspaper ad teams selling their ads, TV station ad sales teams selling their inventory, and so on.  Media reports point to a recent campaign for Target, with ads in newspapers, on Tribune TV stations and Tribune websites.

So What?

“Integrated ad campaigns” are not that new but what is new is that they are now available where they count:  where the inventory resides.  This makes it likely that we will see them with more frequency.  Moreover, think about it for a bit:  What the Tribune is doing is a classic case of the model that like very much, which is “audience integration.”  That’s what diversified media companies do best.  They bring audiences to advertisers.  The more diversified they are then the more audiences they can aggregate.

Aggregation recognizes that audiences get their content from multiple sources.  While there may be some overlap (someone who reads “The Trib” and watches a Tribune TV station), there are many people who use one medium and not another.  If those media happen to be owned by one media company, why not place ads across all of them?  That’s audience aggregation.

It’s not always so simple.  We have often seen civil war break out in media companies among the ad sales teams.  The sales team responsible for TV ad sales rebels when the website sales team for the TV station calls on the same clients for their inventory.  It can get ugly.

And it is understandable, because you are dealing with the livelihood of salespeople.  Someone who has cultivated the ad agency (or internal ad buyer) of a large advertiser for years relies upon the sales commission to pay the mortgage .  Why should he or she let a competitor—even someone in the same corporate family—put the saleperson in financial jeopardy?

And (we hope) that’s what the Tribune Company has figured out.  We hope that the integrated sales team means that commissions are not limited to one medium because that is the only way that you can (and should) change the ad sales culture.  After all, ad revenues amount to the lifeblood of most media companies.  And selling ad inventory makes that lifeblood pump.  And earning those commissions is what enables the sale of that inventory.

One more step towards true convergence:

The Open Mobile Video Coalition (OMVC) has announced plans for 60+ stations in 20+ cities to start simulcasts of OTA programming by the end of 09. Cities scheduled thus far include New York, Boston, Chicago, San Francisco, DC and Philadelphia.

This should boost sales of the iPhone and other devices with large screens. Imagine the opportunity now with WiMax being deployed—conversely, imagine the network overload.