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.

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.

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.

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.

But it would appear this CNET blogger was invited. He states he found the experience of watching ads – of selecting ads and then watching them – before getting the downloads was “…surprisingly painless.”  Now that’s a ringing endorsement, right up there with my personal favorite, “I didn’t hate it nearly as much as I thought I would.”

Yet the author describes a process in which the user really only gets 30-second samples of songs before being forced to pick an advertising sponsor, having to sit through a 15-second advertisement and then getting the download.

I warn you, reader, what follows is a mean-spirited, judgmental and completely uninformed review of Free All Music’s beta offering (remember, I didn’t get an invite): ridiculous.

How is this better or worse than Spiral Frog’s attempt? It’s not, it’s the same flawed idea. Get a consumer to watch ads in exchange for a “free” song download. What’s the first thing wrong with that idea? You can’t make sure the consumer saw the ad and didn’t just minimize the Free All Music window (a behavior that the CNET blogger cheekily noted he’d never endorse, of course). Second, what do you think the value of an impression is when the media being exchanged with the consumer can be readily acquired for free or a small amount on many services? In other words, Free All Music channel isn’t the only place to get it.

But what interested me about the story was a comment from a reader who said he/she hoped the model worked because it’s “…perfect for those of us with a low to moderate appetite for music.”

So consumers with a “…low to moderate appetite for music”  – meaning they aren’t passionate about it, they aren’t into music – are willing to deal with ads to get free versions of something they are kind of interested in?

Please, somebody tell me how this is going to be a real business. Tell me how this is going to be an important revenue stream for the music industry. 

This has all the signs of Apple hedging on the long-term strength of the a la carte download model, given the recent surge in popularity for cloud-based music experiences such as Pandora, Spotify, or even Napster or Rhapsody. Not coincidentally, each of those services received significant bumps in attention, if not users when they delivered or announced plans to build iPhone applications. I think that Lala’s recently submitted iPhone application might have had something to do with the purchase.

While the terms of the deal were not disclosed, my guess is Apple got Lala on the cheap. Lala’s evolution from used-CD-swapping hub (users would mail CDs to each other via trades arranged through Lala’s site) to freemium-based streaming service required the raising of more than $20 million. A fire-sale price would seem to be another example of how limited the opportunities are for paid online music services.

To me, this deal underscores one of the few constants in life: Apple’s historic preference for a device-based value-proposition for consumers. A content service that underscores the value of Apple’s hardware – without breaking the bank – is what Apple’s always had in iTunes and what it will always want to maintain. If significant numbers of consumers shift to cloud-based services, Apple’s got an app for that, it appears.

Well, the answer is no and no. Really, all Google wants to do is just control the search results for music searches. And, you know, maybe help out a struggling online music service or two.

By pulling back the curtain on its new, refined music-search feature, Google also helped a number of legitimate online music services step out from the shadows of an online music ecosystem dominated by the Apple iTunes-iPod-iPhone troika or the dark net (the millions of folks using P2P and Torrent technologies to get free content).

My first take-away: Anybody who doesn’t admit that their use of P2P or Torrent technology is simply to acquire free music – and tries to rationalize it with some other reason – is really just a Philistine. Seriously.

Second take-away: if you’re iLike, Lala or Rhapsody and Napster, there’s nothing like having the world’s largest search engine ride in and help goose those site visitor numbers, am I right?

What really is important, however, are the key refinements Google’s made to searching for music online:

- Full-song streams directly within the search results.  Direct links to services such as MySpace+iLike, Lala, Rhapsody, Napster, iMeem and Pandora that, in their own way, will allow users to stream full-length versions of the songs they were looking for or make direct purchases if the service has an a la carte download store (which is all of them although Pandora’s actually provides links to iTunes or Amazon).

- Refined, filtered search results that logically arrange results by artist, band or song title

- Lyric-fragment search or partial-album-title search are resolved or enhanced due to Google’s work with Gracenote which has a comprehensive, licensed, lyric database

At a launch event held in the historic Capitol Records building in Los Angeles, and hosted by Google and EMI (represented by Marissa Mayer, Google’s head of search and consumer experience, and Syd Schwartz, SVP of global digital marketing, EMI, respectively), was really a testament to just how powerful a set of algorithms can really be in this day in age. Or more precisely, how powerful a set of refined search algorithms can potentially give a slew of legit online music services an important boost in their quest to drive revenue (to satisfy their investors).

Google noted that music-related searches are two of the top 10 search queries of all time. No surprise here as Gartner’s consumer research has shown that online music consumers usually start a search by getting a word-of-mouth recommendation and that the first thing they do is go to a search engine like Google. The most popular thing they do after they find the content they want? They want to sample it immediately. (See How U.K. Online Consumers Find Music on the Internet , How U.S. Online Consumers Find Music on the Internet, How Online Consumers in Italy Find Music on the Internet).

The primary beneficiaries of Google’s algorithmic largesse are going to be iLike (creators of popular social networking music apps which was recently purchased by MySpace) and Lala, a venture-funded start-up that started out as an online market where people could exchange used CDs has morphed into an online service where one can download a song for $.89 or pay $.10 to have permanent access to the song as a stream. Rhapsody and Napster are also likely to receive some incremental benefit from having links to their services as well.

To their credit, Lala and iLike execs, Bill Nguyen of Lala, in particular, noted that Google’s music search feature was a great step forward for consumers looking for music online, but that it was up to the services to turn that potential traffic into revenue. And Google’s RJ Pittman underscored that when he said that Google’s “…pushing the business opportunities down stream” to the services and that Google would benefit by simply providing a better search experience for their users.

And these days, the way you compete with “free” or iTunes is that you have to out “experience” them. And therein lies the challenge for iLike, Lala, iMeem, etc.

Not surprisingly, iTunes and Amazon weren’t part of the announcement and aren’t featured in the search results that a user will see. Frankly, neither of those two really need much help and the music labels are going to be more than happy to see searches which highlight iTunes competitors. So this isn’t really meant to be nor will it be an iTunes killer.

But now we know what Google’s position is going to be any current or future developments in online music (and other media): at the starting line.

Imagine that,  a plan to make a plan to make it simpler for online content entrepreneurs to actually create monetized content transactions?

If I sound sarcastic, I honestly don’t mean to. If the story’s elements are accurate and the various stakeholders’ press quotes prove to be an accurate reflection of their commitment, it’s quite possible that at some point – there doesn’t really appear to be any deadlines for anything – we could see what amounts to a set of non-exclusive registries of licensed content. Were that to come to pass, such registries would be an enormous step forward for the music industry and, I believe, a roadmap for other media sectors as well. 

More important to me is that if we see this kind of movement in the EU and it spreads to other parts of the world, there is going to be a significant premium paid for solutions that help rightsholders and media companies rapidly license, track and account for the usage/consumption of their content.

If I’m in the rights-in/rights-out platform business, I’m smelling an opportunity.