An example? Here’s one right here. Google’s chief legal counsel, Kent Walker, pledges that Google will work even harder to make sure that copyright holders which send take-down notices because unlicensed content is on, for example, YouTube. That’s a nice gesture but, frankly, it’s been the rule of the road since the Digital Millennium Copyright Act (DMCA) went into effect. (To qualify for the DMCA’s “safe harbor” provisions a site must take down copyrighted material when requested by the copyright holder.)

So, adherence to takedown notices, check.  Well done. And Walker notes that the company will improve its “counter-notice” procedures for those who post content that is removed for alleged copyright infringement. This is a nod to so-called “fair use” exemptions to copyright infringement claims. And boy, is that going to be a slippery slope. (The obfuscation of a complex issue.)

Two other items in Walker’s post, however, are worthy of discussion – and watching in the future: the promise to “. . . prevent terms closely associated with piracy from appearing in Autocomplete” and a promise to “. . . improve our AdSense anti-piracy review” to make sure web pages trafficking in infringing content are blocked and that violators are expelled from AdSense. (The illumination.)

What Google surely wants to avoid is any liability for copyright infringement (and earlier this year it won the first round in the $1 billion lawsuit Viacom filed brought against Google/YouTube but the media giant is vowing to appeal) but links ain’t copyrighted. This means Google is taking, for them, a fairly bold step in saying it’s going to be carefully policing AdSense so that when a user types in “free music,” links to possible file-trading software or illicit Torrents are filtered out.  I say bold because it’s quite possible that Google might have been deriving some folding money, as grandpa used to call it, from the operators of such allegedly nefarious software. (I said “might” and “allegedly.”)

So why did all this “ have to happen”? Because business is business, that’s why.  Google’s rumored online music service, its announced Google TV offering, not to mention the Viacom suit all hinge on Google being perceived and acting as an ally of rightsholders.  As a matter of law, the safe harbor provisions can and should protect Google from what happens between individual consumers and the sources of information or content on the Internet that they just happen to use Google search to locate. 

But that all changes when a company decides it wants to get in the business of actually generating users and money from content – as opposed to making it indirectly by merely providing a tool to find that content.

So, to all the media companies out there, you got something you’ve always wanted: a Google that’s willing to be a bit more engaged in your efforts to tame the Internet beast. 

To all those who thought Google was your copy-left friend, I say, business is business. Get over it.

Beats me but the joint venture that is Hulu (owned by News Corp, NBC-Universal and The Walt Disney Company), aims to find out.  Users will pay $9.99/month and get to watch advertising. (On the other hand, cable subscribers and other pay-TV subscribers have been doing that for decades, so maybe this Hulu Plus thingie is just, well, a repackaging of an old idea?)

Maybe, maybe not.  For  $9.99/month and you can get entire seasons worth of current shows as well as back-catalog or shows which left the airwaves years ago. (The existing free product typically has the most recently aired show plus a few trailing episodes.)  Users will also get to watch content in 720p HD on PCs and Macs, iPads,  iPhones, a Samsung Internet-connected TV, Samsung BluRay players, and in the future, Sony PlayStation and Microsoft XBox gaming consoles. (Presumably here will be even more devices in the future).

Hulu CEO Jason Kilar described Hulu Plus as a  “revolutionary ad-supported subscription product,”  in this blog post.

Well, we’ll see if the magic translates into revenue and how the cable world’s “TV Everywhere” efforts stack up against Hulu Plus.

The judge sided with  Google’s argument that the “safe harbor” provisions of the Digital Millennium Copyright Act protect Google and other online portals, ISPs and communications service providers  against liability for the alleged or actual copyright infringement committed by their users — as long as they (Google or any ISP or site) respond to take-down notices sent by the rightsholders and remove the copyrighted material. During the case many colorful anecdotes made their way into the press. Some of my favorites:

* Google knew what was going on and ignored it because traffic volumes were growing (an allegation made by Viacom’s legal team).

* Viacom employees actually used YouTube to their own ends by uploading promos of programs in hopes of growing the audience (an allegation made by Google)

My first reaction when I saw these nuggets appear in the press ? “Duh.”

Sure the Google/YouTube teams would know there were/are infringing videos on the site.  Evidence was presented during the case that, when notified they apparently made signficant efforts to remove the offending material.  That’s what the DMCA “safe harbor” provisions require.

And I  was not surprised to see that any number of Viacom employees may have uploaded copies of their very own company’s shows to the site. For God’s sake, if you were responsible for promoting some show, and you wanted to maybe make a few consumers aware of your program (or remind them of why they like the program) wouldn’t you go to a site that gets hundreds of millions of visitors every day of the week? Of course you would.

Consumers like online video. They like sites and services that make it very, very convenient to get video. Even the music labels, some at least, have recognized this, hence the Vevo channel on YouTube.  Now, while advertising revenue generated from these online videos may not yet be where some had hoped, they are generating revenue.  The supremacy of convenience is what consumers are opting for – I think they’ll pay for those services that can deliver on that.

So, while Viacom will pursue an appeal, I wonder if some of those legal resources might be better applied to finding more ways to license and exploit online versions of Viacom’s popular content assets and figure out how to balance the opportunities of online and over-the-top options and figuring out how to evolve incumbent broadcast carriage models.

Hugely complicated issues, indeed. But maybe it’s time for both parties to get out of the courtroom and get into the lab and boardroom.

At the root of this challenge is something that sounds fairly prosaic but is fraught with complexities and that is how a movie or episode of a TV series (or the entire series) is identified.

This announcement between CBS and Secure Path Technology, Inc.is an example of a couple of entities taking concrete steps to overcome the challenges associated registering and licensing content at time when incumbent distribution models are under siege by various Internet-based offerings.  As consumers increasingly program their own content experiences, demanding it on their schedule and on the devices they want, online service providers and media companies are going to struggle to keep up with the demands of the marketplace if they don’t make the investments in metadata systems and common content identifiers.

Beyond the very important requirements for automation of licensing and calculating royalties, prioritizing investments in metadata management and content identification standards will pay off for media companies in another important area: recommendation and discovery systems.  Why? The more consistent the metadata fields are across media sectors e.g. music or movies, recommendation and discovery technologies engines can be more rapidly deployed – if they’re developers aren’t having to spend time building up metadata fields.

At their core, deals such as the one between Secure Path and CBS are about efficiencies that need to be developed behind the walls of media companies. Look for more, lots more of these kinds of announcements.

So now – almost five years after the U.S. Supreme Court ruled in June 2005 (in the MGM vs. Grokster case) that purveyors of file-trading software could be held liable for “inducing” copyright infringement – a district court ruling in a suit between the Recording Industry Association of America (RIAA) and Limewire gives the content and technology industries an example of what inducement means.

In 2005, I published a Gartner note on the Supreme Court’s decision, “In the majority opinion, then-Justice David Souter wrote, ‘We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement.’” I went on to note that technology and companies considering the development of online content services would have to pay attention to see how courts defined “inducement.”

So now we know. But the Limewire decision, issued Tuesday, doesn’t end the case – a conference is scheduled for June 1 to figure out how the case will proceed.

What happened was that the appeals judge (Judge Kimba Wood, one time nominee for U.S. Attorney General’s position under President Bill Clinton, by the way) granted the RIAA’s motion for summary judgement that the industry group had proven that Limewire system induced infringement, benefitted from it, knew about it and didn’t do much if anything to stop it.

While the importance of getting a precedent for what “inducing” copyright is, in the eyes of U.S. legal system, for those who watch these issues closely, I focused on the judge’s ruling on Limewire’s claim that there are substantial non-infringing uses of the Limewire software and the P2P protocols it uses.

Limewire attempted what is sometimes referred to as the Sony-Betamax defense against the RIAA’s accusation that its system enabled “vicarious copyright infringement” (meaning that the evidence indicates Limewire was profiting from direct infringement and did nothing to stop it), but the judge did not buy it.  She swatted it away like an annoying fruit fly buzzing around her head.  In fact, she seemed to go out of her way to note that Limewire knew infringement was occurring and took no effective steps to stop it.  What caught my eye in this part of the ruling, however, was the judge’s language that “…the record does not support a finding that LimeWire is capable of substantial noninfringing uses.”

This is crucial for the future of any sort of content distribution system that is based on distributed computing or peer-sharing.

I wouldn’t say the door was close to “substantial non-infringing uses” of P2P architectures. I would say that if somebody is thinking about using those technologies for licensed content distribution systems, tracking and enforcing copyright is going to keep you from getting swatted.

Well, there’s what we will pay for as consumers and what the movie studios are willing to deliver. As always, there’s a price.

Now, the FCC has approved a proposal by the movie studios which would deliver the new distribution strategy that would enable consumers to pay a fee to get a hi-definition stream of movies that are still in the theaters or just out of theaters. (This would be a distribution window that be slotted in ahead of the so-called “home product” windows of DVDs for sale, rental DVDs, online distribution.)  The market calculus is pretty simple: if we’re not getting consumers in the theater, and DVD sales are slipping, and online piracy is a constant, existential threat, then perhaps a “rental” in the form of a tethered stream (encrypted stream with decryption being done by a STB or the consumer’s computer) is the way to go?

Predictably, the studios’ position that in order to deliver this potentially cool benefit, they want protection of the streams. Their answer? The “selective output control feature” they want built into new HD TVs. This technology would prevent a consumer from hooking up an analog recording device or to otherwise redirect the unencrypted stream of content from the computer or STB to the consumer’s TV set.

While the FCC is embarking a new era – pushing network providers to adhere to “net neutrality” like principles, freeing up unused or under-utilized spectrum as part of a national broadband strategy – some of the old tensions remain. Such as the how much control content companies should have over the technology consumers use to access and consume copyrighted material.

Me, I think the FCC needs to continue to focus on maximizing the value of a natural resource – spectrum – and ensuring equal access to the ‘net for all – not dictating consumer-device specifications.

First, an iPhone/iPad/iPod Touch application version of the Rhapsody service is now available and the big news is it delivers all the value of a subscription service – access to the entire catalog Rhapsody’s amassed over the years – a single, predictable monthly payment and portability – play it on your PC, play it on your iPhone or iPad or through your Sonos system (or whatever hip/cool/homegrown solution you have for multiroom audio).

And it’s $10/month. (Rhapsody Premier Plus is $14.99 and enables the use to run it on three separate mobile devices.) 

So anyhow, much has been made of the fact here and here, that the newly single Rhapsody got to market first the feature competitors such as MOG’s All Access  are still developing, and others like Spotify have deployed (at least in the U.K., the company’s still somewhat coy about when, but in my mind it’s still “if” they come to the U.S.): the ability of a Rhapsody subscriber to create a secure cache of songs – be it a set of playlists, entire albums, or a genre – on an iPhone or iPad and play that cache without having the device connected to the Internet.

Is this a big deal? Well, sure, getting to market first with a solution that delivers what I believe most music consumers would think is an obvious capability has its advantages. But as a practical matter, MOG’s All Access – which will have a smartphone option available in the summer — was able to take advantage of a major shift in licensing terms and practices by the labels to create it’s PC/browser version of All Access. (Which is to say it’s an advantage but short-term because virtually all other services will negotiate similar deals.) The relaxing of license terms, and the onerous licensing fees many online music services have had to pay the labels, is as important as any of these new services.

Rhapsody, MOG’s All-Access and, probably, maybe, at some point, Spotify, are all important indicators that given a rich catalog of content, a reasonably simple set of interfaces and extensions to mobile/portable devices, consumers will pay for content.  The big “if” is IF the service offers an interesting experience. For everything else, iTunes was, at the time of launch, and remains to this day an online store. Apple creates a unique experience by seamlessly integrating PC-based software (iTunes), a set of unique and, so far, very popular pieces of hardware (iPod, iPod Touch, iPhone and iPad, not to mention Macs).

So while maybe the ‘00s were about free content (as in portable and as in “free beer”), it would seem that the next decade of the 21st century will be about consumers paying directly for content experiences.

Apparently the reason is that Comedy Central and Hulu couldn’t agree on a revenue split of advertising generated on Hulu. So Comedy Central figured it would really rather online consumers view the shows on their respective Comedy Central sites.

Between this development and the rumors about a pay wall being implemented at Hulu (here and here, among others), one has to wonder if the experiment of inter-network cooperation on neutral-ground Hulu is now complete. It would appear that especially in tough times, and with precious advertising dollars always at stake, the licensing negotiations for content is still the immovable object to the irresistible force of large online audience numbers. What will be interesting is how online consumers who have grown accustomed to “The Daily Show” or “Colbert Report” via Hulu rise up in protest and flood Viacom with complaints or will they merely change their browser bookmarks or feeds? Will they go to iTunes? Netflix?

Walmart’s the latest entrant in the over-the-top sweepstakes and it could be one of those deals that will be viewed in the future as an important example of my colleague Andrew Frank’s “IP-Dominant-Gene Theory” that applies to all things media.

By acquiring VUDU, Walmart positions itself to be an important intermediary between content providers and consumers who are looking for IP-dominant service offerings which give them the ability to tailor their content experiences.

If any entity is going to be responsible for enabling mainstream consumers to embrace online content offerings, it could be Walmart.  For Walmart VUDU is most certainly about the potential for extending its brand relationship to online consumers while also leveraging its CE-device retail partners. If the company can integrate these two areas to create device-service offerings such as Blu-ray players or connected TVs running VUDU’s software, Walmart could have a significant solution that would attract the attention (not all of it good) of telco and cable service providers. It will be interesting to see how the cable companies, in particular, react to this deal.

And the acquisition puts Walmart in the middle of the same emerging market as Apple with its AppleTV/iTunes combo, a raft of of over-the-top boxes such as Roku and the reportedly-soon-to-be-shipping Boxee box, not to mention the XBox and Playstation consoles which boast their own movie and TV show delivery services.

One other reason this deal is good for Walmart? VUDU is coming at a price point that “. . . is not material” to Walmart’s first-quarter earnings. (Of course, when you remember that Walmart’s annual revenue is around $400 billion, it would have to buy the state of California to have a material impact on its earnings.) So, sounds like they got, for them, a reasonable deal on VUDU. (Financial terms of the deal were not disclosed, according to a press release issued by Walmart. VUDU will operate as a subsidiary with the expected close of the deal in a few weeks.)

What users can do is seed a “station” based on a song or artist on their device. Soundtrckr then the system starts driving related songs from Soundtrckr’s seven-million-track catalog (licensed from the labels so they’re not paying a webcasting royalty), based on the usual elements: genre, artist, band, album etc., etc.  The added twist is that the playlists can be tagged to a location and the iPhone app can help users find fellow Soundtrckr’s and their playlists by location.

I started with a live track from a Los Lobos concert in 2005 in my hometown. What followed were some interesting, and by my ear and preferences, appropriate matches. (Like so many recommendation systems, some of the songs linked to the Los Lobos seed were just so obviously based on the highest-level, and therefore loosest relationship between artists. For example, there isn’t really a direct musical relationship between Los Lobos and Santana. We can chat offline about this if anybody would like to discuss.

Founder and CEO Daniele Calabrese said recently that the company looks to drive revenue from advertising, affiliate fees from driving sales to stores and services.

It all sounds interesting. The dynamic Calabrese’s team is trying to tap into – music’s power as social currency – has potential as a revenue driver. What remains to be seen is whether it develops into a standalone business or if it becomes an ingredient in a larger service offering from a content store or service, perhaps even a carrier.

Definitely one to watch in the intersection of social, mobile and music.