Asked during a pretrial hearing Thursday for her thoughts on a likely outcome, U.S. District Judge Denise Cote said her view is that the U.S. Justice Department will prevail over Apple.

Said Cote, “I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that.”

Though delivered with a caveat noting that she has not yet reviewed all the evidence in the case, and that her view was delivered without “the benefit of the testimony of the witnesses and further argument from counsel,” Cote’s remarks are a little unusual, to say the least, and don’t bode particularly well for Apple’s chances at trial.

That said, they also don’t reflect particularly well on Cote’s impartiality. The case hasn’t even been heard, and she has just gone on record saying she is reasonably certain that the plaintiff will win. And while her comments don’t quite rise to the level of smack talk that undermined Thomas Penfield Jackson’s ruling in the United States v. Microsoft case, one could imagine them resurfacing at a later date in an appeal if this trial goes south for Apple. Cote here is commenting on a potential outcome for the case without having heard testimony from Apple’s witnesses or the cross-examination of the DOJ’s witnesses. That’s a crucial test of truth. And if this case does end up in appeal, Cote’s apparent prejudging here could be harmful to her ruling.

Apple disputed Cote’s remarks and characterized them as premature.

“Apple fundamentally disagrees with the judge’s preliminary comments,” Apple attorney Orin Snyder told AllThingsD. “We look forward to presenting our side of the evidence and bringing our witnesses to court. We will prove that Apple did nothing wrong and that consumers greatly benefited from Apple’s entry into a new and emerging market.”

The case heads to bench trial on June 3.

AllThingsD independently confirmed that this has been discussed at the FTC, but it’s in the earliest of stages. Google and the FTC both declined to comment.

The players are all too familiar, but the game is different, as the FTC largely cleared Google in a separate search and patent antitrust investigation last year.

Google is nowhere near as dominant in advertising as it is in search, but the company has clearly been building up its advertising stack through acquisitions and its own product development — with regulators’ permission, so far.

The cornerstone of those was buying DoubleClick in 2007, which the FTC itself cleared. The commission said at the time, “We want to be clear, however, that we will closely watch these markets and, should Google engage in unlawful tying or other anticompetitive conduct, the Commission intends to act quickly.” Since then, Google added other important buys such as AdMob and Invite Media and built its AdX ad exchange.

The question is whether Google is using anticompetitive tactics to try to force its combined “end-to-end” solution onto advertisers, for instance by taking a loss on some products in order to make the full package more attractive.

IDC reported this week that Google had 24.1 percent of the $3 billion U.S. display advertising market in the first quarter of this year, widening its lead over Yahoo and Facebook.

Evidently, Apple feels much the same way about the DOJ’s charges.

In an 81-page April 26 filing that was made public today, Apple pointedly denied federal prosecutors’ accusations, saying the discussions they’ve painted as collusion were simply tough business negotiations and that their end result — an “agency” e-book pricing model where publishers, not retailers, set prices — made the e-book market more competitive, not less.

“Apple did not conspire to fix e-book prices,” the company said in its filing. “The evidence proves that Apple acted independently, to further its own legitimate business goals, in negotiating agency agreements with the publishers to enter the e-book market.”

Apple disputes the DOJ’s view that it was the “ringmaster” of a publisher conspiracy to eliminate price competition and raise e-book prices. Instead, it claims it was simply a new entrant in a market that was “roiled by a public conflict between publishers and Amazon” — a market that was already considering the agency pricing model currently at issue.

“Amazon at the time sold 9 out of every 10 e-books, and many publishers publicly disagreed with Amazon’s uniform, below-cost pricing strategy for New York Times bestsellers,” Apple said in its filing. “This tumult in the industry inspired the second largest e-retailer, Barnes & Noble, to push for agency agreements with the publishers. And Amazon used an agency-like model for small publishers and self-published authors. In other words, Apple did not introduce agency to the e-book industry; it was simply the first to reach an agency agreement with the industry’s largest publishers.”

And for a new entrant to the e-book market, as Apple was at the time, the agency model was a logical one. The company was looking for a 30 percent commission on every sale; it was hardly going to get that from publishers at the $9.99 price point Amazon had established.

Which is not to say that it was opposed to $9.99. According to its filing, it wasn’t. As long as it was able to collect that 30 percent commission, Apple said it didn’t particularly care what price publishers sold their books at. Yes, it required a “Most Favored Nation” agreement from publishers that gave it the right to lower prices to match low prices offered by competing retailers, but it argues it did this to remain competitive with Amazon, not to influence its business model.

“The evidence shows that Apple told the publishers that they were free to remain on a wholesale model with other retailers, even as the publishers sold e-books on Apple’s bookstore under an agency arrangement,” Apple argues.

And that’s Apple’s broader point in this filing: By negotiating for an agency pricing model with publishers, it was simply seeking to enter a new market and offer competitive prices. It wasn’t colluding to push e-book prices higher. It wasn’t attempting to change Amazon’s business model. It was just conducting business — legitimately. To Apple, the DOJ’s allegations that it was doing anything else, let alone engaging in an “illegal conspiracy” that “increase[ed] the retail prices of trade e-books” is “demonstrably false.” And the company insists the facts are on its side:

Average prices for trade e-books have fallen, and output, whether measured in the number of sales, the number of titles, or the types and quality of e-books offered, has increased substantially. These facts are undisputed.

Apple also fundamentally transformed the e-reading experience, leaving rudimentary, black-and-white, and expensive single-purpose e-readers (e.g., the Kindle) in the dust. The e-book world changed dramatically when Apple launched its iBookstore on the iPad in April 2010. At the time, 400,000 e-book titles were available to the consuming public; today, readers can download more than 1.7 million e-books. Apple has also created or spurred a number of the most important e-reading hardware and software innovations, such as full-color, interactive, and vivid digital e-books.

The bottom line, said attorney Orin Snyder of Gibson, Dunn & Crutcher, is that “Apple should be commended, not sued. Apple injected much-needed competition and innovation into the eBook business. … The DOJ’s case is based on fictions and incomplete quotations. The actual evidence proves that Apple did not conspire to fix prices in the eBook business. We look forward to trial.”

The DOJ’s case against Apple is currently scheduled to go to trial on June 3 in a New York District Court. Apple’s filing in full is below, and there’s more on the DOJ’s view of the case here.

Apple’s Pre-Trial Memorandum of Law _as Redacted_ –

Basically, this covers search labeling and scraping, as expected. It’s trying to set a more level playing ground for how Google treats its competitors, and to address some of the ways it may have abused its power in the past — like by including Yelp reviews in its own local search in a way that discouraged people from ever visiting Yelp.

You can see in the illustrations here that Google will include a little lowercase “i” with a circle around it next to results from its own properties, and will also sometimes encase them in a “sponsored” box:

As part of the agreement, Google also conceded some limitations it had put on its advertisers, similar to the deal it made in the U.S. The commitments don’t include anything related to concerns about use of patents.

Competitors now have a month-long “market test” to comment, then Google has to implement the changes for five years throughout Europe.

So why is this different and stronger than the mild hand-slap that Google received in the U.S.? Well, first of all, European laws are stricter, and Google is much more dominant than it is in Europe, with search market shares above 90 percent.

But, second, competitors are already saying that this won’t go far enough.

ICOMP, an organization representing Google’s competitors, immediately fired off a round of comments today about how labeling something as wrong doesn’t fix the fact that it’s wrong.

“If the proposals don’t clearly set out non-discrimination principles and the means to deal with the restoration of effective competition, plus effective enforcement and compliance, it’s very difficult to see how they can be satisfactory,” ICOMP said in a blog post. “[I]t is clear that mere labelling is not any kind of solution to the competition concerns that have been identified. Google should implement the same ranking policy to all websites.”

Said a Google spokesperson, as usual, “We continue to work cooperatively with the European Commission.”

Embedded below is the text document of Google’s commitments, which contains a bunch of images showing how the proposed labeling will look:

Google’s EU commitments for competition market test

After months of conversations with the EU competition watchdog, Google last week submitted a final package of concessions that will later be tested in the market, giving Google’s rivals a chance to comment on whether the changes made an impact. Google didn’t make public any details about its proposal.

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The 17-member Fairsearch.org coalition, which includes Microsoft, Nokia, Oracle, TripAdvisor and Expedia, said that Google “uses deceptive conduct to lockout competition in mobile.”

The organization complains that Google gives away Android for free, but then forces those who want its maps or YouTube or the Google Play store to then preload other Google services.

“Google is using its Android mobile operating system as a ‘Trojan Horse’ to deceive partners, monopolize the mobile marketplace, and control consumer data,” coalition lawyer Thomas Vinje said in a statement. “We are asking the Commission to move quickly and decisively to protect competition and innovation in this critical market.”

Google representatives did not immediately respond to a request for comment.

Several European operators have submitted concerns about their contracts with Apple to the EU antitrust watchdog over the past months, two people familiar with the matter said Friday. French carriers led the charge, but companies from other EU countries were also involved, the people said.

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Which of the following scenarios has regulators in Europe issuing hundreds of millions in new fines this week?

1) Google has released a laptop that consists of nothing more than its browser, thereby severely foreclosing opportunities for competition on any number of fronts.

2) Apple, which for years wouldn’t allow iOS apps to compete with its built-in programs, still won’t allow access to its fastest browsing engine, forcing rivals to use slower technology.

3) Microsoft, which used to have a dominant browser and operating system but has been losing share for years, has failed to live up to the terms of a deal over that fading monopoly.

If you guessed No. 3, you might have a job waiting for you at the European Commission.

While everyone else has turned their attention to mobile — an area where Microsoft trails badly — European regulators have remained doggedly focused on making sure consumers have plenty of choice of browsers when they bother to boot up their desktop.

The issue seemed passe when the EU revisited it back in 2009 and seems all the more so four years later.

Windows and Internet Explorer have continued to lose share over those four years on the desktop itself, and the real growth in the Internet is from billions of mobile devices.

To be fair, Microsoft did agree to offer European consumers the option of a ballot to choose which browser they wanted. Even Redmond admits it made a mistake.

“We take full responsibility for the technical error that caused this problem and have apologized for it,” Microsoft said in a statement. “We provided the (European) Commission with a complete and candid assessment of the situation, and we have taken steps to strengthen our software development and other processes to help avoid this mistake — or anything similar — in the future.”

But, at this point, might regulators want to turn their attention elsewhere?

Consumers certainly have. Even RealNetworks, Opera and the other outfits that initially complained about Windows have, too.

But it’s also a warning to other companies with which the agency has regulatory issues — one in particular.

Google.

The EC has been investigating the search behemoth over its alleged dominance of the search market since 2010 and earlier this year squeezed a settlement proposal out of it. That proposal is said to be largely similar in content to the one Google agreed to with the U.S. Federal Trade Commission, though with a few more teeth. The EC hasn’t yet commented on the proposal, other than to confirm that it has received it, and it’s unclear whether it will demand more concessions still from the company.

What is clear, however, following the fines levied against Microsoft today, is that the EC is quite serious about demanding significant changes from companies that violate its antitrust laws and is entirely willing to drop the hammer on those that fail to follow through on them.

As EU competition commissioner Joaquín Almunia said today, “Legally binding commitments reached in antitrust decisions play a very important role in our enforcement policy because they allow for rapid solutions to competition problems. Such decisions require strict compliance. A failure to comply is a very serious infringement that must be sanctioned accordingly.”

A pat explanation for the EC’s sanctions against Microsoft, but also a clear “feeling lucky, punk?” warning to Google: Don’t make empty promises. Because the financial implications can be staggering: Fines of up to 10 percent of the company’s annual global sales. In Google’s case that’s potentially billions of dollars.

At a Tuesday hearing, Apple argued that requiring developers to sell their apps through its iTunes App Store and nowhere else is not an antitrust violation, nor is charging devs a 30 percent cut of their proceeds for distibution. Just because there are no third-party storefronts peddling discounted iPhone apps doesn’t mean Apple is abusing a monopoly position over iOS apps. The company doesn’t set the price for paid applications.

The plaintiffs in the case brought their suit against Apple in 2011, claiming that their inability to legally buy iPhone apps from anywhere but the App Store was proof that Apple is a monopolist.

But Apple, which has fended off similar lawsuits in the past — specifically one that accused it of creating a music-download monopoly with iTunes — says the sort of vertical integration it has created between the iTunes App Store and its iOS devices is perfectly legal. As Apple attorney Dan Wall said during yesterday’s hearing, “There’s nothing illegal about creating a system that is closed in a sense.”

Reuters reports that the European Commission plans to sanction Microsoft for failing to comply with a mandate to offer Windows users in Europe a choice of Web browsers beyond its own Internet Explorer. And sources familiar with the matter have confirmed to AllThingsD that this is indeed the case at this time. No word yet on the size of the fine, but given EU Competition Commissioner Joaquin Almunia’s public threats over the misstep, penalties could be severe. Whatever they are, sources say the EC will likely announce them sometime in March.

Under the terms of Microsoft’s 2009 antitrust settlement with the European Commission, the company was to present Windows users with a ballot screen offering them an opportunity to swap out Internet Explorer for one of 11 other browsers. And Microsoft did do that — at first, anyway. But when an update to Windows 7 rolled out in February of 2011, the company unwittingly eliminated the ballot screen, and didn’t realize it had done so until last summer.

In July of 2012, the commission opened an investigation into the matter, despite Microsoft’s apologies for what it claimed was a “technical error.” And by fall it had filed formal charges against Microsoft. “If companies enter into commitments, they must do what they have committed to do or face the consequences,” Almunia said during an October news conference. ” [They] should be deterred from any temptation to renege on their promises or even to neglect their duties. This is why, when this happens, the commission has the power to impose fines.”

And in this case it seems the agency plans to exercise it. That’s potentially bad news for Microsoft, which has already been fined about $1.28 billion by the EU. If the commission follows through on its current plan to sanction Microsoft, it could slap the company with fines equivalent to 10 percent of its fiscal 2012 revenue. That’s about $7.4 billion.

Microsoft declined comment.

“We can reach an agreement after the summer break. We can envisage this as a possible deadline,” European Commission head of competition Joaquin Almunia said today at a conference, according to Reuters.

Marilyn Volan/Shutterstock

The slow turnaround comes as a bit of a surprise after Almunia had put pressure on Google to submit its proposed remedies to concerns about anticompetitive actions in search and advertising by the end of January — which the company did.

But it’s really not that shocking after repeated lags in the European antitrust investigation of the company, which started way back in 2010.

Critics of tech industry regulation charge that the pace of government moves much slower than that of innovation. The Google case is now becoming a textbook example — especially as search transitions to mobile, which was a consideration but not the focus of the antitrust investigation.

The U.S. Federal Trade Commission already settled with and declined to bring charges against Google, under the leadership of Chairman Jon Leibowitz, who is stepping down.

As we’ve reported, it’s likely that in Europe Google will agree to better labeling of its own properties in search results, as a concession to the claims of competing vertical search engines. That would make it a stricter deal than in the U.S., but it wouldn’t radically alter how Google does its business.

The company submitted a proposal regarding what it is willing to settle earlier today, said sources, after negotiations in Brussels went to the wire.

The big question is whether the EC extracts more concessions from Google than the U.S. According to a source familiar with this week’s active negotiations, the proposal is quite similar to what Google already agreed to in a parallel case with the U.S. Federal Trade Commission, over scraping information to include in search results and sharing information through advertising APIs.

However, there are likely to be a few key differences. One source said that the European agreement won’t address patents, and it will likely include instructions to have better labeling in search — a topic that wasn’t touched by the FTC agreements.

Perhaps most significantly, as in the U.S., Google won’t have to admit wrongdoing.

Neither Google nor the EC are confirming that the submission happened. “We continue to work cooperatively with the European Commission,” said Google in a statement, while the press office of European competition commissioner Joaquin Almunia did not reply to a request for comment.

Almunia had announced in December that he expected Google to submit a “detailed commitment text” in January 2013, and had reiterated that deadline in recent comments.

The settlement agreement as Almunia has laid it out would be under Article 9 of the EU Antitrust regulation. That’s important, because it’s a different and newer law than what was applied in Europe to Intel and Microsoft. Most critically, it wouldn’t include the substantial fines associated with the traditional European antitrust enforcements.

Though both the timeline and the substance of the European negotiations have been made public many times, those involved seem to be trying especially hard to keep details of the submission under wraps. I was able to glean some information from a source familiar with the situation in Brussels, but wasn’t able to confirm it elsewhere as yet.

However, other outlets, including the subscription regulatory outlet MLex, are also reporting that Google finally made its submission.

So, what would this settlement mean? For Google to better label its own products in search results makes sense, but it’s not one of the stronger remedies preferred by the search giant’s competitors, who don’t like Google using its overall strength to help its own vertical search properties, and have hoped that regulators might put a stop to that.

Many people I’ve talked to who are familiar with discussions in the case cite an open letter written by Danny Sullivan at Search Engine Land as a guideline to better disclose paid inclusion and content promotion.

The next step in the process, if Almunia’s office accepts Google’s submission, will be to test it in the market for effectiveness — another aspect that would be different from the U.S. agreements.

Update: In the wee hours of February 1 out here in San Francisco, we received a statement from Almunia’s spokesperson, Antoine Colombani: “We have received proposals by Google which we are now analysing.”

“Under facts we found, all five of us, from liberal Democrat to conservative Republican, agreed that the evidence militated against an antitrust case,” Leibowitz told Talking Points Memo. “The fact that we managed to have both Google and Google’s rivals unhappy, in an odd way that’s maybe unique to Washington, that puts us in the right place substantively.”

And, despite the implications of critics, the efforts of lobbyists did nothing to steer the agency to that place. “My sense is that the lobbying makes the companies feel good and lobbyists feel good,” Leibowitz said. “At the end of the day, whether you want to say lobbying had any influence, or canceled itself out because there was lobbying on both sides, if you’re going to do what lobbyists want you to do in a regulatory agency, you’re not doing your job.”

Almunia’s position doesn’t appear to be different from when he expressed it via statement in December, but he elaborated a bit in an interview with the Financial Times about which areas of Google’s business he finds troubling.

The interview comes on the heels of the U.S. Federal Trade Commission essentially clearing Google of search abuse claims in an antitrust settlement announced Jan. 3.

Google has more than 90 percent of the search market in Europe — significantly more than in the U.S. — where Bing is not as significant a player in many languages. European laws are more friendly to competition, and Almunia has more unilateral power than the FTC to exact punishment and fines.

The FT suggests that one of Almunia’s proposed punishments will be for Google to label its own services, which is not seen as a particularly strong remedy by Google’s competitors.

Basically, Google would have to more clearly show that it is referencing its own mapping, local, travel search and shopping-vertical search properties, similar to how it visually labels advertisements as such. But a bigger change would be to restrict Google from preferencing its own services over those of competitors.

Almunia said he is more or less in line with the FTC’s three restrictions on Google: No more scraping (a practice Google had already stopped), allowing advertisers to share data between Google and other services, and limitations on injunctions over standards-essential patents.

Though many details of the FTC investigation leaked out before they were announced officially, Almunia has openly discussed his process, having published his list of demands on Google last May. However, his repeated public discussion of the issue makes it that much more evident that various deadlines have been pushed back multiple times.

Asked for comment, a spokeswoman for Google said, “We continue to work cooperatively with the European Commission.”

A clinching moment came in November when FTC staff, who had exhaustively investigated the Internet search giant for 18 months, told the five FTC commissioners that they shouldn’t bring a broad antitrust case, rebutting the theory that Google abused its dominant market position in Internet search to favor its own products and services at rivals’ expense.

Instead, in a series of packed meetings at room 432 of FTC headquarters on Pennsylvania Avenue in Washington, D.C., they recommended pursuing a series of smaller issues. That culminated Thursday in an announcement by the FTC that it wouldn’t bring sweeping charges against Google.

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Standard-essential patents — which cover basic technology shared in an industry — have become a key issue as smartphone competitors fight over intellectual property. Having been lumped into the the long-running FTC antitrust investigation of Google over the past couple of months, patents weren’t originally an issue, but they emerged as an area where regulators could find fault and make a deal.

Google became a key SEP owner when it bought Motorola for $12.5 billion last year, and it has continued Motorola’s efforts against competitors like Microsoft and Apple to try to stop them from producing products on the grounds of patent infringement.

But at the FTC’s urging, Google has now promised that it won’t seek injunctions against willing licensees to block them from using patents that have been included in industry standards.

Still, there are some allowed exceptions to the FTC order. For instance, if the licensee is outside the U.S., or if it doesn’t agree to terms set by court arbitration, then it’s okay for Google as a SEP owner to ask for an injunction.

So what does this mean for the larger standards-essential patent fights? A few things — with a mix of winners and losers.

1. The FTC is now on record saying that Google acted unfairly. That’s big.
2. Google doesn’t have to drop its existing appeals of SEP cases, according to clarifying comments by FTC spokesman Peter Kaplan. However, Google can’t obtain or enforce any SEP exclusion orders or injunctions.
3. Google’s agreement with the FTC is binding. But it is not necessarily as strong as what Apple and Microsoft already committed to voluntarily when the Department of Justice and other agencies in Europe were looking into the matter. They both said that they won’t seek injunctive relief based on SEPs, ever.

Starting with the first point, the FTC said Motorola/Google went back on its commitments to license SEPs when it tried to get injunctions in federal district court and from the U.S. International Trade Commission to block its competitors who were willing to license the patents.

Here’s the quote:

Motorola … violated the FRAND commitments made to ETSI, ITU, and IEEE by seeking, or threatening, to enjoin certain competitors from marketing and selling products compliant with the relevant standards, like the iPhone and the Xbox, from the market unless the competitor paid higher royalty rates or made other concessions. At all times relevant to the allegations in the Proposed Complaint, these competitors — Microsoft and Apple — were willing to license Motorola’s SEPs on FRAND terms.

For Microsoft and Apple, which have both been battling it out with Google and Motorola over disagreements concerning SEPs, this is vindication of their arguments. They have claimed for some time now that Google has not honored its obligation to license Motorola’s standards-essential patents on fair, reasonable and non-discriminatory terms (FRAND).

And now the FTC has come forward and said not only that this is indeed the case, but that Google can’t try to ban competing products using patents they licensed under a FRAND agreement. The settlement effectively de-weaponizes Motorola’s SEPs.

Here’s the kitschy infographic the FTC created to explain its take on the issue:

FTC

And there are broader implications as well for other companies that have been using SEPs in a similar fashion. Certainly, the FTC’s decision does not bode well for Samsung, which has also been accused of misusing SEPs in a number of patent suits.

But on the other hand, perhaps the FTC could have been stricter. Microsoft committed via a public statement in February 2012 to never “seek an injunction or exclusion order against any firm on the basis of those essential patents,” and Apple said that seeking SEP injunctions was a violation of FRAND in a letter that came to light around the same time.

Still, the Microsoft and Apple statements “have very little legal effect,” said Jorge Contreras, a law professor at American University who specializes in patents and standards, speaking after the consent order was published today.

By contrast, Contreras said, “Here we have an actual proposed consent order that will have, with respect to Google, the force of law. It’s much more binding, and it’s much more detailed.”

Also, as folks who align with Google might point out, Microsoft and Apple’s patent portfolios aren’t as heavy on SEPs, so these voluntary commitments might have been a bit cleaner to make.

Microsoft, as might be predicted, was unhappy with the FTC consent order and other aspects of the Thursday’s announcement, saying they didn’t go far enough. Deputy General Counsel Dave Heiner wrote in a blog post:

As the FTC recognizes today, Google did abuse its standards-essential patents by seeking injunctions on the basis of them. Given this, we are disappointed that the FTC accepted less relief from Google than the DOJ obtained from Microsoft and Apple last year and the FTC obtained from Bosch in a separate case just a few weeks ago.

Microsoft’s commitment is two sentences.  The FTC’s proposed consent decree on patents runs for 13 pages, most of which spell out exceptions—the various circumstances when Google can sue for an injunction on its standards-essential patents. This stands in stark contrast to the commitments made by Microsoft, Apple and Bosch.

With reporting by John Paczkowski.

Igor Zakowski / Shutterstock.com

That’s both because he doesn’t think Google violated antitrust laws and because he doesn’t think the non-binding search agreement Google made has any teeth.

Rosch’s pithy take: “In other words, after promising an elephant more than a year ago, the Commission instead has brought forth a couple of mice.”

Rosch, a Republican who is known as a bit of a lone-wolf thinker, is on his second-to-last day at the agency, as his replacement was confirmed earlier this week.

Rosch voted along with the rest of the five commissioners to close their search investigation and with the majority to discipline Google on standards-essential patents. But he abstained from voting for Google’s voluntary settlement agreement and a statement on the patent matter.

By stretching to catch Google on something — anything — the FTC reached too far, Rosch argued. The two issues the FTC convinced Google to back down on are scraping content to display in search “snippets” and allowing AdWords users to manage their ad campaigns across multiple platforms.

But scraping could quite easily be seen as an issue of fair use. The search agreement puts “the FTC in the position of becoming the enforcer of the copyright laws on the Internet — a task for which it has neither the resources nor expertise, and was surely not envisioned by Congress,” Rosch said.

He elaborated:

As any casual user of the Internet knows, many websites make use of other websites’ content; indeed, the business model for many popular websites is based on aggregating or summarizing the content of other websites. As a result of the majority’s apparent condemnation of scraping, the legality of these aggregators may be called into question, and the Commission may be inundated with rent-seeking complaints from firms like the alleged “victims” here.

Rosch had previously expressed skepticism about Google’s competitors trying to get the FTC to fight their battles. He told Bloomberg, “They can darn well bring it as a private antitrust action if they think their ox is being gored instead of free-riding on the government to achieve the same result.”

Instead, the FTC said today that the company had agreed to two settlements, one a consent agreement over licensing patents, and the other a resolution to stop scraping content from competitors and to give advertisers more flexibility to manage their campaigns.

Starting in Europe (where settlement talks are still open), and later in the U.S., competition agencies spent the last two years looking into complaints about Google manipulating its search results to bias its own properties, scraping vertical search engine information to show directly on its results pages, and requiring exclusivity and blocking portability in search advertising.

FTC Chairman Jon Leibowitz said today at a press conference that his agency “exhaustively” reviewed nine million pages of documents related to the case, and conducted many interviews, but “the evidence does not support a claim that Google’s prominent display of its own content on its general search page was undertaken without legitimate justification.” The commission voted unanimously to clear Google of search bias claims.

“Google’s primary reason for changing the look and feel of its search results to highlight its own products was to improve the user experience,” Leibowitz said.

Google, of course, concurred. Chief Legal Officer David Drummond wrote in a blog post today, “The conclusion is clear: Google’s services are good for users and good for competition.”

A large concern about the search deal has been the fact that it is not a standard consent decree; however, Leibowitz emphasized that the settlement includes “monitoring obligations” and is “legally enforceable and binding.”

The FTC’s search investigation was eagerly participated in by competitors such as Microsoft, Yelp and TripAdvisor, and basically everyone in technology who had anything against how Google conducts business (so, everyone in technology). But because the search resolution isn’t a formal FTC complaint, there won’t be any period for competitors to formally comment now.

Over the past 19 months, the FTC started looking into other aspects of Google, like search on Android and other mobile platforms, as well as the recently pressing issue of how to handle the patents that cover the basic shared technology for smartphones.

The FTC today led with the standards-essential patent decision, which was an important issue, but a late and somewhat awkward addition to the case, given that it is totally different. Google had walked into smartphone patent licensing because it purchased Motorola. It has now agreed to a consent order that prohibits it from seeking injunctions against willing licensees.

Independent of whether you think Google was being a big, bad, anticompetitive bully, the FTC investigation was hampered by a couple things: First, U.S. antitrust laws would have to stretch to cover cases in which it’s not clear that consumers are harmed; and second, Leibowitz, who was driving the case, would like to step down from his position soon, and so won’t be around to see a lengthy legal battle through.

Leibowitz had been trying to wrap up the case by the end of 2012, and narrowly missed that window. But the past couple weeks did not significantly change the agreement that’s been voted on, despite some people’s hopes inside and outside the FTC that the agency would wait to see what happens in Europe.

At the press conference today, Leibowitz paid tribute to the political nature of the case. He was a bit prickly about the “antitrust spin zone” driven by Google’s competition, and their charges that his agency has been weak compared to the European Commission.

“Anyone that is in the business of being the chairman of the antitrust enforcement agency, you know, would like to bring ‘the big case,’” Leibowitz said. “That’s something you want to do. More important than that is to faithfully execute the law.”

The FTC had seemed ready to agree to a non-binding settlement with Google in late December, but it pushed back a decision after it seemed that the European Commission was still in the fight for a stricter deal.

Now, FTC Chairman Jon Leibowitz is behind a charge for the FTC’s five commissioners to vote on the same issue this week.

What’s changed? Well, the Senate confirmed George Mason law professor Joshua Wright late Tuesday to replace Commissioner Thomas Rosch. Rosch’s last day is Friday. Due to a previous relationship with Google, Wright will recuse himself from the case.

But then again, Rosch was not expected to vote against Google, especially given that he said last month that the company’s competitors should take their antitrust claims to court rather than “free-ride on the government.” So the number of votes needed hasn’t really changed at all.

The other thing that’s evolved in the past month is that after descriptions of the Google-FTC settlement leaked, it was perceived as weak compared to what Europe was still negotiating.

The proposed U.S. settlement includes a resolution about scraping content for use in Google’s search “snippets,” a requirement for AdWords data to be portable onto other platforms and restrictions about when injunctions can be sought over standards-essential patents.

These so-called “voluntary commitments” seemed markedly weaker than the “binding” and later to be “market-tested” agreement that EC competition commissioner Joaquin Almunia said in a public statement he was still hoping to get from Google before the end of January.

Not wanting to hurt its leverage in future cases, the FTC took a step back to think about how this was being perceived, sources said.

But if a vote were to come this week, it would most likely be on the same deal as was proposed before the holidays.

The anti-Google contingent continues to be upset with Leibowitz, saying the decision comes back to him losing leverage because he let it be known he wants to leave public office himself soon.

“People at all levels of the agency, senior staff and management, believe that FTC has every reason to wait and see what’s offered up in Europe,” said a person familiar with the negotiations.

“The chairman and the chairman alone controls timing, and he seems to be determined to cram this down their throats. There’s an opportunity for consensus but nobody can convince him to push the pause button.”

But another way to view the case is that the FTC had a “weak hand” all along, as one legal expert put it, especially compared to competition laws in the European Union. Because Google doesn’t charge consumers for search, and there are alternatives, it would be hard for the FTC to prove that Google’s search practices actually hurt consumers.

Meanwhile, Microsoft, one of the biggest critics of Google, continues to complain about ways it feels it’s getting shafted by the search giant. Today, one of the company’s senior lawyers charged that Google executives have blocked the company’s YouTube unit from providing the support necessary to build a full-featured YouTube app for Windows Phone.

The company is trying to put a little public antitrust pressure on Google, given the context of impending American and European decisions about Google’s behavior in search and advertising.

But the YouTube issue is not a new one; Microsoft has complained about it to regulators multiple times since 2010. YouTube clients for Android and iPhone have fuller search, favorites and ratings capabilities, while YouTube for Windows Phone is basically a wrapper for the mobile Web version of the site, because it doesn’t have access to full APIs.

What’s new is that Microsoft is now claiming that people at YouTube are in favor of helping provide a good Windows Phone experience, but senior Google executives recently told them not to do so.

Wrote Dave Heiner, Microsoft VP and deputy general counsel:

Microsoft has continued to engage with YouTube personnel over the past two years to remedy this problem for consumers. As you might expect, it appears that YouTube itself would like all customers — on Windows Phone as on any other device — to have a great YouTube experience. But just last month we learned from YouTube that senior executives at Google told them not to enable a first-class YouTube experience on Windows Phones.

What’s odd about Microsoft’s claims is that there is already a full YouTube app for another Microsoft product: Xbox. That was released this past August, and was touted by Google and YouTube PR.

The Xbox app was part of YouTube’s new platform strategy to be more in control of the user experience and advertising on its apps. Other new apps in that group include PS3, iPhone and iPad. The question is whether YouTube really wants to get there, but is being prevented from doing so by its Google overlords, as Microsoft claims — or whether there is another reason YouTube hasn’t done it.

Perhaps Windows Phone’s tiny market share may not be enough to make it a priority — though Microsoft is well aware of that problem, and has previously built its own Twitter and Facebook apps.

Update: Here’s Google’s comment on the matter:

Contrary to Microsoft’s claims, it’s easy for consumers to view YouTube videos on Windows phones. Windows phone users can access all the features of YouTube through our HTML5-based mobile website, including viewing high-quality video streams, finding favorite videos, seeing video ratings, and searching for video categories. In fact, we’ve worked with Microsoft for several years to help build a great YouTube experience on Windows phones.

The European Commission, which acts as the EU’s competition watchdog, is investigating whether Samsung’s past use of injunctions against Apple Inc. prevented competition.

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In an open letter posted on his book publishing company’s website Wednesday afternoon, Macmillan Chief Executive John Sargent said the firm is still committed to fighting the antitrust case brought by the Justice Department involving allegations that Macmillan and four other publishers plus Apple Inc. conspired to raise e-book prices.

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