Viacom and Google, who have been tangling over copyright violations at YouTube since 2007, will be at it again today at a federal courthouse in New York. The two sides will start oral arguments for Viacom’s appeal of the case, which Google won decisively in a 2010 ruling.

In the past, both sides have tried digging up evidence to discredit each others’ arguments, and while both came up with plenty of embarrassing stuff, they couldn’t find a smoking gun.

So now we’re back to the basic question of the case: How much protection does the Digital Millennium Copyright Act offer YouTube, or any other site that lets users upload and distribute content they don’t own?

That question has come up to the courts in at least three different suits in recent years: Viacom versus Google, Universal Music Group versus Veoh, and EMI versus MP3Tunes. And in all three cases, federal judges have offered up the same response: The DMCA gives Web sites enormous latitude. As long as the site serves a legitimate function, it can’t be held responsible if users upload stuff they don’t own. If copyright owners find something that shouldn’t be there, and they ask the site to take the offending piece down, the site has to comply. But that’s about it.

So far, that’s very encouraging news for all manner of digerati. And in theory, it’s quite threatening to media companies and other people who create, finance and distribute intellectual property for a living.

But things might not be quite so dire for the media guys. While you can read the recent court rulings as an invitation for a free-for-all, it looks a little different in the real world.

YouTube, for instance, has spent a lot of time and money creating systems to filter content on its site, which hoovers up more than 24 hours of stuff every minute. And it works hand in hand with most big media companies to help them keep stuff they don’t want off the site — and to help them distribute other stuff they do want there.

Included in that list of companies playing very nicely with YouTube — Viacom’s sister company, CBS. And once this suit finally gets settled — which could still take years — my hunch is Viacom will want to work closely with the world’s biggest video site, too.

[Image credit: Sweetheart/Shutterstock]

What does that mean for the rest of us? In a nutshell: It’s yet another victory for Web sites and services that let users upload and access music, movies and other files under the protection of the Digital Millennium Copyright Act.

And it gives Google and Amazon additional cover for the cloud locker services they launched earlier this year, without approval from the big music labels.

In practical terms, though, I’m not sure that the decision does anything beyond maintaining the status quo. Had it gone the other way, it’s possible that it would have threatened lots of popular Web sites and services. But since it doesn’t: Carry on!

The most important news is that a third federal court has ruled on behalf of Web services whose users might use it to upload and/or access files that violate copyright rules.

In this case, it’s MP3Tunes fending off EMI Music. But it’s the same basic story as the Veoh/Universal Music and YouTube/Viacom cases: A judge has ruled that the DMCA doesn’t require Web services to figure out which files that users upload have the right to be there.

Assuming all of those rulings stand up (Viacom is appealing the YouTube decision, and this one will likely go back into the court system, too), this will give Web sites enormous flexibility. The rulings don’t give users unlimited access to stuff they don’t own, though, and they do require sites to pull down files if copyright owners complain.

In this case, Judge William Pauley ruled that MP3Tunes, which operates a “locker” music service similar to the ones Google and Amazon launched earlier this year, was liable for some copyright infringement, because it didn’t remove specific songs EMI had flagged. And he said MP3Tunes founder Michael Robertson was also liable, because he knowingly uploaded songs he didn’t own.

That means Robertson and his company could still end up paying significant penalties, even though they won most of their case.

Pauley’s ruling also briefly blessed the construction of the locker service itself. In short, he said that users have a right to upload their own songs to the cloud and play them back, even if the service they used to do it doesn’t have an arrangement with the music labels.

That’s good news for Google and Amazon, because they don’t have deals with labels for their services. But it didn’t seems like they were going to need them, anyway.

Though music executives huffed and puffed after the lockers launched, they haven’t taken legal action against the companies. They also haven’t pursued mSpot, a small start-up that offers something similar.

I’ve seen some reports that suggest that Pauley’s ruling gives Google and Amazon the ability to do a “scan and match” service, where users don’t have to laboriously upload their songs to a locker — instead, the service would simply look at what’s on their hard drive, and give them access to a copy stored on the site.

That’s what Apple’s new iTunes Match service does (among other things). And Apple hammered out a deal with the labels to make that happen.

But as far as I can tell, the only additional leeway that Pauley gives to Google and Amazon is the ability to save storage space on their own servers, by using “deduplication” technology — a “standard data compression algorithm that eliminates redundant digital data.”

That’s not nothing — it’s always nice to save storage space — but it won’t fundamentally change what they’re offering to consumers, who will still have to spend a long time moving their stuff into the cloud.

Big picture: If the idea of storing all of your music on a remote server — so that you can listen to it whenever you want, wherever you want — is appealing, this ruling is good news. It’s also good news if you like watching videos on YouTube, listening to songs on Tumblr, or using lots and lots of other Web sites that depend on stuff users upload. But since you can do all of that already, you’re not going to notice a change.

“To all our international friends, we’re sorry you can’t use turntable right now due to licensing constraints,” Turntable told users via Twitter. “Trying to get you back in asap.”

The bad news: I wouldn’t count on international access opening up again for a long time.

The good news: This is good news. It’s another sign that Turntable is trying to figure out how to use the Digital Millennium Copyright Act as a way around having to negotiate onerous music licenses, which improves its chances for survival.

Turntable, which lets people play and listen to just about any song they want, is trying to position itself — legally, at least — as a “non-interactive” Web radio, which would be shielded by the DMCA.

But the DMCA only covers use in the U.S., and there’s no equivalent licensing option available overseas. Which means either hammer out license deals in every country it wants to operate in, or turn the company into a U.S.-only operation.

This is exactly what Pandora, which also uses the DMCA for licensing, had to do back in 2007. And that seems to have worked out okay.

It’s worth noting that although Pandora is now on a $200 million revenue run rate, and reopening international operations is part of the company’s long-term plans, it is cautioning investors not to expect anything soon.

“Copyright and licensing laws vary from country to country, making international expansion a complex task, and we expect the process for securing licensing rights will require a number of years,” Pandora warns, via an SEC filing. “We are working to obtain the appropriate rights with economics that work for us, with the objective of eventually launching Pandora internationally.”

Meanwhile, whether Turntable will be able to convince the music industry that it is indeed protected by the DMCA remains an open question. It has been trying to comply with the restrictions on the fly, making adjustments as it soars in popularity. Recently, for instance, it stopped allowing users to play music in “rooms” without other listeners.

Will those be enough? We don’t know.

Here, via Twitter, is some skepticism from a knowledgable observer with skin in the game: Sony CFO Rob Weisenthal. “I love turntable.fm but it is tough to see how the DJ is DMCA compliant,” he wrote this morning, before inviting followers to join him in “The Hip Hop Lounge.”

And here’s the counterargument: Surf-singing dude Jack Johnson’s Brushfire Records music label giving the service a big wet kiss.

Brushfire’s stance is the right one, obviously. Of course music labels should embrace a service that lets music fans turn other music fans on to new music. But that doesn’t mean it’s going to happen.

I’d say it’s astonishing no one has done it before, but it’s not: The music business has a long tradition of resisting good ideas. So how did the Turntable.fm guys finally get the industry on board?

They haven’t. The start-up doesn’t have deals in place with any labels or publishers.

[Record-scratch sound here.]

This doesn’t mean that Turntable.fm is illegal. The company believes it’s obeying the law, and it might be right. But this thing has gotten so buzzy, so fast, that it’s going to be hard for the label lawyers to stay away.

Here’s how Turntable got started, how it works, and why it might be able to stick around. But if you haven’t already, go play with it now, just in case.

The backstory:

Turntable started as Stickybits, which did something hard to explain involving barcodes and geotagging, and seemed more like an art project than a business. Last year it raised nearly $2 million.

This spring, CEO Billy Chasen abandoned that idea and used his remaining money to build Turntable. This one is easy to describe.

Here goes: You and up to four other people take turns streaming just about any song you want for anyone who wants to listen, for free, in one of the site’s “rooms.” A deal with MediaNet, a digital content provider, gives Turntable access to millions of songs, and if the song you want to play isn’t there, you can upload your own MP3 to the site and play that. There’s a chat feature so you can compare notes, and you can “follow” your pals.

That’s about it. There’s a “gamification” element where you can collect points and rewards for playing music people like, but that’s definitely secondary. The real thrill is sharing music, and discovering music.

The law:

So how can any of that be legal without label deals? In short, Chasen believes he’s able to run the service under the protection of the Digital Millenium Copyright Act (DMCA) — the same law that lets Pandora operate without label deals — as a “non-interactive” Web radio service.

That description will seem odd to most people who’ve used Turntable. Because the service doesn’t seem like radio at all, and it is most definitely interactive.

You pick the songs you want to play, and the order you want to play them. And if you’re really into it, you’ll change that on the fly, based on the song the person before you just played.

But if you spend enough time mucking around with Turntable, you’ll start to run into small constraints here and there. You can’t play music in a room by yourself, for instance. And there’s a limit on the number of times you can play a song by a single artist per hour. And you can’t see the next song another user has cued up.

None of these limits seem like real limits, because they don’t detract from the service’s core appeal. But these are all rules that “DMCA-compliant” Webcasters work under, and they’re evidence that Chasen is trying to do the same thing. If it works, he’ll simply pay music owners a flat fee for each song he streams every month, just like Pandora does.

The precedent:

In addition to Pandora, Chasen has another model to work with here: 8tracks, a three-year-old service that also lets you play any music you want, and listen to other people’s music, for free, using a DMCA license. The main difference is that instead of playing the songs live, you create “mixtapes,” which other users play back on their own time.

8tracks never got the same kind of buzz that Turntable is getting, but it has diligently built up a fan base, and now draws more than two million users a month. Just as important, it’s been able to stay out of legal trouble. I think it’s a pretty great story.

There’s a technical difference between 8tracks and Turntable, too: 8tracks relies on songs its users own and upload, while it seems like most people on Turntable are using the tracks Chasen and Medianet provide. That distinction seems like a small one, but some music biz folks I’ve talked to have pointed to that as a red flag.*

The problems:

The risk for Turntable is the same one every music start-up without label deals faces: Not that a court will find them guilty of something, but that they’ll have to spend a lot of time and money on lawyers.

And while it seems blindingly obvious that Turntable.fm is a great thing for the music business — it lets music fans tell other music fans about music they like, the best possible advertising — I wouldn’t put it past a label or two to gripe about the service. Particularly if it makes the leap from the digerati into the mainstream.

(It’s important to note here that there are lots of traditional music business folks who are resentful of Pandora’s success, even though the company pays out more than half its revenue to copyright owners.)

If Turntable does sidestep legal challenges, it will have to make money one day, too. This is also an issue, since no one’s actually proved that free, ad-supported Web music can be profitable.

But I’m much less worried about this one. If it gets to that point, the Turntable guys should at least be able to tell advertisers that their ads will be much more effective, since Turntable users spend a whole lot of time looking at their screens.

Does any of this matter?

I’m an unlikely candidate to get swept up in the buzz around a hot Web site.

I’m reflexively cautious about that kind of behavior, and it’s easy to point to buzzy start-ups that shot up, then cratered (Myspace), or never got above the buzz stage to begin with (Chatroulette). And even if Turntable does stick around, it’s possible that it’s just a feature and not a business.

But this one feel pretty special. We’ve had plenty of music sites, and plenty of social sites, but none that mixed them well together. I hope they make it work.

——————————

*Don’t want to bog this down in legalese, but note that Google and Amazon’s music locker service, which doesn’t have the labels’ blessing, relies on music its users provide. But Apple got the labels’ blessing to provide a “scan and match” service, where a single master track could be used by multiple listeners. I wouldn’t be shocked to hear a music label lawyer tell Turntable its model is closer to Apple’s, and requires a separate deal.

Apple has approved developer mSpot‘s music app, which does what Apple hasn’t done yet but may well do at some point: It takes your music from your PC, moves it to a server and lets you pull down tunes to your iPhone whenever you want.

Or at least in the immediate future. Given that mSpot has yet to reach any licensing deals with music labels or publishers, I’m not sure how long the service can keep going. But we can get back to that in a minute.

First the details: MSpot lets you synch up to two gigabytes of music from your hard drive to its servers, and then stream it via another PC’s browser, or download it to your phone via 3G.

Because mSpot compresses your files, those two gigs will translate into a lot more music on your phone (at a much lower fidelity) than they do on your computer. But if you want more storage you can get another 40 gigs for $3.99 a month.

This is roughly the same idea that both Apple and Google have discussed with the music industry for much of 2010, but neither of those two heavyweights has the licenses it needs to launch. How can mSpot pull it off?

Good question. The answer is that mSpot CEO Daren Tsui argues that he doesn’t need a license, for a variety of reasons.

I’ll spare you the technical details, but common sense supports his position–why shouldn’t you be able to move your music from one machine to another? And the law, via the Digital Millennium Copyright Act, may be on his side as well.

But so far the big labels have argued that the big guys do need licenses to offer cloud services (short version–they say that moving music to the cloud and back constitutes a new use). And Tsui has in fact been trying to get an agreement with the labels for much of this year.

He’s already had this service running on Google’s Android platform since late June without a legal problem, so that can give him some confidence that the labels won’t take him to court. But that’s not a guarantee.

For starters, the labels are already suing Michael Robertson’s MP3tunes, which uses a similar concept. And it’s not uncommon for the labels to negotiate with music start-ups, then move on to lawsuits if things hit an impasse.

And if Tsui does strike a deal, that means he needs to start paying the labels. How’s he going to do that and keep offering the service for free? By offering new paid options and cutting the music guys in on a piece of that revenue, he says.

So we’ll see! Note that Spotify, which has a lot of buzz, 700,000 paying users and some deep-pocketed investors, has yet to get its music service licensed in the U.S.

And mSpot is a much smaller fry. The Android app has a million downloads so far and some 500,000 registered users. And the 6-year-old company raised $2.3 million in 2005, and that’s it. But Tsui says mSpot is profitable on revenue from other media services it sells.

Here’s hoping he gets to spend that money building cool stuff, not hiring lawyers.

“Apple’s goal has always been to insure that our customers have a great experience with their iPhone and we know that jailbreaking can severely degrade the experience,” the company said in a statement given to Cult of Mac. “As we’ve said before, the vast majority of customers do not jailbreak their iPhones as this can violate the warranty and can cause the iPhone to become unstable and not work reliably.”

So you’re not going to go to jail for jailbreaking your iPhone, but you may well end up at the Apple Store dealing with an unsympathetic tech. As Greg Joswiak, Apple (AAPL) vice president of iPods and iPhone products and marketing, argued during a rule-making hearing last year, “When you hack the OS and remove all protection, anything can happen….The OS runs everything. And this allows any app, regardless of its functionality, its reliability, or even its safety, to run.”

You can read all of U.S. District Court Judge Louis Stanton’s decision at the bottom of the post, where I’ve embedded the ruling. Short version: Stanton buys Google’s longstanding argument–that the Digital Millennium Copyright Act protects YouTube from Viacom’s claims. And he seems to agree with Google (GOOG) on almost every point. There’s very little in his ruling that Viacom (VIA) will be happy about.

Even though YouTube and Google executives knew the site had plenty of clips that violated copyright, “mere knowledge of prevalence of such activity in general is not enough” to support Viacom’s claims, Stanton wrote in a 35-page decision.

That’s because the DMCA, signed into law early-on in the first Web boom in 1998, grants “safe harbor” to service providers that don’t know about specific copyright violations and that fix copyright violations when they learn about them. Since YouTube relies on users to upload clips to the service and takes down clips if copyright holders complain, it’s in the clear, Stanton says.

If the ruling holds up, it’s a big blow to traditional copyright laws. Or spun another way, it’s a huge victory for technology companies using the DMCA as a defense.

Google’s statement:

Today, the court granted our motion for summary judgment in Viacom’s lawsuit with YouTube. This means that the court has decided that YouTube is protected by the safe harbor of the Digital Millennium Copyright Act (DMCA) against claims of copyright infringement. The decision follows established judicial consensus that online services like YouTube are protected when they work cooperatively with copyright holders to help them manage their rights online.

This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other. We’re excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world.

Viacom’s statement:

We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions. We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible. After years of delay, this decision gives us the opportunity to have the Appellate Court address these critical issues on an accelerated basis. We look forward to the next stage of the process.

So what about all of those interesting and entertaining documents both sides filed in the three-year suit and released to the public earlier this year? As I argued earlier, the bulk of them weren’t really relevant at all, and Stanton spends almost no time discussing them.

One worthwhile exception: He does use one email from Viacom attorney Michael Fricklas to help bat away the network’s complaint that YouTube was the equivalent of Grokster, the file-sharing network beaten down in a 2005 Supreme Court decision.

“The difference between YouTube’s behavior and Grokster’s staggering,” Fricklas wrote in a 2006 email. And Stanton agrees.

msj_decision

Earlier this week, the three companies filed amicus briefs in support of Google and YouTube, which are defending themselves against a $1 billion copyright lawsuit by Viacom. In the briefs, they urge the judge presiding over the case to dismiss Viacom’s suit, claiming to do otherwise is to violate protections given Google under the Digital Millennium Copyright Act.

From the briefs:

[Viacom's] legal arguments, if accepted, would retard the development of the Internet and electronic commerce, create uncertainty for service providers regarding their legal exposure for alleged infringements, and inhabit the growth and development of user-centric online models that, day after day, make the Internet and the world more democratic.

The expression of support by Yahoo (YHOO), Facebook and eBay (EBAY) for Google follows a similar move by Hollywood. Earlier this month, Warner Bros., NBC Universal, Disney, the Screen Actors Guild and Directors Guild of America filed amicus briefs of their own arguing, as Viacom (VIA) has, that Google (GOOG) is not protected by the DMCA, which shields Internet service providers from liability for copyright violations committed by users.

The friends of the court in this case, then, are aligned on both sides. All that remains is to determine whether the DMCA protects YouTube. And Viacom is confident that the court will determine that it does not.

“The courts have been clear that creating and building a Web-based business on the intellectual property of others is illegal,” a Viacom spokesperson told Bloomberg. “That is exactly what YouTube did in its formative years. Nothing in this case threatens the principles of the DMCA or the ability of legitimate Internet-based businesses to flourish.”

Because if you’re trying to handicap the way the copyright lawsuit pans out, today’s document dump won’t do much to help you. There are revelations here, but they’re of the minor and historical variety, and I’ll get to some of them later.

No smoking gun, though. Just a lot of chest-beating and desk-thumping as both sides talk past each other.

Still, it does make for fun reading if you’re of a certain troubled mindset. If you’re not, here’s a summary:

Viacom’s case: YouTube was full of content that wasn’t supposed to be there, and both YouTube and Google knew it.

Of course they knew it! Anyone who visited the site in 2005 and 2006 knew it. The problem was what to do about it.

And that’s the most interesting part of the emails and IM exchanges Viacom has dug up: They let you watch YouTube’s co-founders, and later, Google executives, argue over the best way to keep the site growing like a weed while fending off the lawyers.

Actually, they knew the lawyers would show up eventually. “Ok man, save your meal money for some lawsuits! ;) no really, I guess we’ll just see what happens,” co-founder Chad Hurley tells partners Steve Chen and Jawed Karim via email in July 2005, as the three men decide to leave some copyrighted stuff on the site.

As as YouTube boomed, Google (GOOG) was trying to figure out how its lackluster Google Video site could compete. The big debate, according to former executive David Eun: “Whether we should relax enforcement of our copyright policies in an effort to stimulate traffic growth, despite the inevitable damage it would cause to relationships with content owners.”

Google’s eventual answer, of course, was to buy YouTube. But it went in with open eyes. A due diligence report estimated that just 10 percent of the “premium” stuff on the site was authorized.

Google’s case: Viacom–which talked about buying YouTube–was perfectly happy to use our site to market its movies and TV shows. Until it wasn’t.

Of course it was! In 2005 and 2006, all of the entertainment companies were desperately trying to get their clips in front of the site’s huge audience. Even more so at Viacom (VIA), whose youthful audience was spending lots of time on YouTube.

And the fact that Viacom executives, who had lost MySpace to Rupert Murdoch (remember when MySpace was a world-beater?), were thinking about buying YouTube–in part so Murdoch wouldn’t get it–shouldn’t be surprising, either.

Google makes a lot of the fact that Viacom “secretly” uploaded videos to YouTube, either via its employees or from marketing shops it hired. But I don’t get the impression that the “secret” uploads were supposed to dupe YouTube. I get the impression they were trying to dupe YouTube users into thinking the videos were edgy and cool.

“The goal is to make it look “hijacked,” an executive at Viacom’s Spike network told the producers of a mixed martial arts show, describing a video he gave them so that they could seed it on YouTube. The idea was to make the clip “look as though it was leaked out by production.”

Viacom’s embrace of YouTube does bolster Google’s case in one way. Google shows, fairly effectively, that Viacom’s lawyers have had a hard time figuring out which YouTube clips the company authorized. If Viacom can’t figure out what’s supposed to be on the site, Google argues, how do you expect YouTube employees to know?

So. Strip out all of the depositions, documents and emails, and we’re back to where we started. This case will hinge on the way the court decides to interpret federal copyright law.

Viacom argues that YouTube is a video version of Napster or Grokster–designed to profit from intellectual property it knows is stolen. And Google argues that it’s doing exactly what the Digital Millennium Copyright Act tells it do–asking its users to behave, hoping they do, and taking down offending clips when their owners ask them to.

So pay attention to that ruling–it’s going to be really important. But unless you’re paid to keep an eye on digital media, you can ignore most of today’s paperwork.

[Image credit: Michele Hubacek]

Veoh, which started as YouTube-style site, has struggled for years to find a business model that works and has burned through $70 million in funding from name-brand investors like Goldman Sachs (GS), Time Warner (TWX), Intel’s (INTC) venture arm, Spark Capital and former Disney (DIS) CEO Michael Eisner.

CEO Dmitry Shapiro declined to comment. He is tweeting, though:

UPDATE: Shapiro is talking now. Here’s my conversation with him, and a blog post he penned himself.

This one has been a long time coming. Last year, the San Diego-based company laid off about a third of its staff, replaced its CEO with founder Shapiro and focused on developing a Web browser-based app. Shapiro has also been actively looking for a buyer, but a copyright lawsuit with Universal Music Group made the site a difficult sale.

The company was buoyed last fall when it effectively won that lawsuit: In a sweeping ruling, a federal judge ruled that Veoh was protected against the music label’s copyright claims by the Digital Millennium Copyright Act.

That decision gave Veoh executives the confidence to try to gather up yet another funding round. And as recently as January, the company thought it might be able to convince its existing investors to pony up yet again.

But that plan collapsed in the past few weeks, sources said. It’s striking that Veoh couldn’t find any buyer willing to pay up for either its technology or its audience, which was supposedly at 25 million uniques last spring.

Here’s a post-mortem from Spark’s Todd Dagres, a Veoh board member:

But it sure looks like the Times is charging online readers if you visit Apple’s iTunes Store, which is selling two different New York Times (NYT) iPhone apps at 99 cents a pop.

The Times has nothing to do with either app, both of which are called the “New York Times Mobile Reader.” And both are supposed to do the same thing: Spit out the paper, along with other Web content like podcasts, in iPhone-friendly form.

You’d think the Times would want Apple (AAPL) to remove the miniprograms, if only to protect the value of the paper’s own app, which is both free and very good.

When I pointed out the apps to a Times spokeswoman on Tuesday, she asked around and later confirmed that the two apps “are not authorized and our legal department is looking into the matter.” But as of Thursday morning, the apps are still there, ranked No. 14 and No. 18 on Apple’s list of top paid news apps.

As Josh Quittner notes, hijacking publishers’ names and content and turning them into paid apps isn’t uncommon at iTunes. I count at least eight such offerings among the top paid news apps at the online store.

But it shouldn’t be that hard for Apple to put the kibosh on this stuff. For instance: It ought to be fairly obvious that developer Chad Rivoli, who has produced one of the “New York Times” apps–along with ones that boast brands like CNET, Fox News, the BBC and the Drudge Report–is not authorized to do so.

But Apple’s approach to this is weirdly passive. Here’s the statement I got from Apple PR’s Trudy Muller yesterday:

As an IP holder ourselves, we understand the importance to developers of protecting their IP. We have a process in the App Store for developers to alert us to possible IP infringement. When we’re notified, our policy includes the removal of the infringing app until a resolution is reached between the parties.

If this approach sounds familiar, it’s because it’s a lot like the one Google (GOOG) takes toward YouTube copyright complaints: Put it up, then take it down if someone complains.

In Google’s case, the company claims it has no idea what people are uploading to YouTube–anyone can throw anything up there. And that approach may well be protected by the Digital Millennium Copyright Act (we’ll see). But Apple knows exactly what it’s selling via iTunes because it approves every new app individually.

Maybe the Times isn’t hell-bent on griping to Apple because it has other priorities, like working with Apple on something for the upcoming wondertablet. And maybe every other publisher whose stuff is getting repurposed for profit doesn’t want to bother Apple either. Hard to believe there is really big money being made here, after all.

All I know is that this situation wouldn’t last long at all on the regular Internet: Good luck starting a “New York Times” Web site and charging people to visit–or even just linking to the paper while using its iconic “T.”

What’s different about iTunes?

UPDATE: At least two other publishers are aware, and unhappy, about unauthorized apps. CNET tells AdAge that it has asked at least one of the developers using its stuff to take it down, apparently without success.

And Fox News says it complained directly to Apple in December, says MediaWeek. In that case, though, it seems to had at least some effect:  “Mobile News Pro — Fair & Balanced” is still available in the app store, and still aggregates Fox News content, including radio feeds. But the app’s description does note that it has “removed FOX wording per FOX request.”

On Friday, Judge Marilyn Patel, who in 2000 issued the injunction that shut Napster down, dismissed Real’s antitrust claims against Disney (DIS) and other movie studios over their alleged collusion to block RealDVD, the company’s “legal” DVD ripper.

The studios and the DVD Copy Control Association, she found, were well within their rights to band together to prevent what they believed to be illegal copying of their content. Real was foolish to think otherwise, and its claim that it has suffered significant losses because of its inability to sell a product of questionable legality is, in a word, ludicrous.

Which is not to say that consumers should not have the right to copy and back up films they have legally purchased, just that the courts have never looked favorably on those who claim that right through a technology that bypasses DVD copy protection and consequently violates the Digital Millennium Copyright Act.

“Real’s purported injury stems from its own decision to manufacture and traffic in a device that is almost certainly illegal under the DMCA,” Patel wrote. “In the circumstances of this case, there is no allegation Real could make that would give it antitrust standing.”

Court Opinion Dismissing Realnetworks Antitrust Case

PREVIOUSLY:

• RealNetworks Still Barred From the DVD Backup Business. Why Does RealNetworks Want to Be in the DVD Backup Business?
• RealDVD Launch Buffering…Buffering…
• Rent. Rip. Restraining Order.
• StealDVD? Well, You Were Asking for It…
• Sue. Rent. Rip. Return.
• Rent. Rip. Return.

Both sides filed the requests, as has been expected for some time, at the end of last month and is a sign that years of laborious discovery and depositions have come to a close.

There’s not much to the filings themselves:

• Google’s (GOOG) document reiterates the company’s initial argument. The search giant says it doesn’t knowingly store or play copyrighted clips on the site, and if it does, it is protected by the Digital Millennium Copyright Act. Google also cites last fall’s ruling in the Veoh/Universal Music Group case, in which a court ruled in favor of the video-sharing site.
• Viacom’s (VIA) document reiterates its initial argument, which is that Google and YouTube knew what they were doing and profited from it, which means the DMCA does not protect them. And perhaps it says something more interesting. Hard to tell, since U.S. District Court judge Louis Stanton has redacted more than a page of the document, as you can see here:

Wonder what that says? Me too.

Viacom filing:
Via 1710
Google filing:
Goog1710

“Psystar…has built its business on infringing Apple’s copyrights and trademarks, free-riding on Apple’s research and development efforts, and trading on Apple’s hard-earned reputation for high quality, innovative and easy-to-use computers,” Apple said in its motion.

“Psystar’s appropriation of Apple’s intellectual property and goodwill has been systematic and brazen, from the name of Psystar’s ‘OpenMac’ computers to its deliberate pirating of Apple’s Mac OS X,” the company added.

“Psystar even seeks to profit from Apple’s efforts to protect its rights, extolling this litigation as Psystar’s ‘opportunity to gain market share,’ in a pitch to venture capitalists….Unless Psystar is permanently enjoined, it will not stop its unlawful conduct–conduct that is causing irreparable harm to Apple’s business, brand and goodwill.”

Catch that? Psystar was pitching VCs on its plan to use Apple’s IP to “compete directly against Apple.” Shameless. Little wonder Cupertino is so intent on burying the would-be rival.

And make no mistake, Apple legal is going to grind Psystar into fine silicon dust. In addition to the injunction, Apple is requesting compensation for legal costs and statutory damages owed under the Copyright Act and the Digital Millennium Copyright Act. And according to Apple’s expert witness, statutory damages for the former should run “between $1500 and $300,000″ and for the latter “between $449,500 and $4,495,000.”

Suffice it to say, that’s quite a bit more than the current value of Psystar’s assets which, according to its bankruptcy filing, are no more than $50,000.

“Psystar has violated Apple’s exclusive reproduction right, distribution right, and right to create derivative works,” Alsup wrote in his ruling (see full text below). Not only did the company infringe on Apple’s (AAPL) copyrights by installing Mac OS X on its hackintoshes, he explained, it violated the Digital Millennium Copyright Act to do so.

An ugly defeat for Psystar, which just a few weeks ago asked a judge to bless its business and rule that it is legally allowed to sell machines with Apple’s Mac OS X pre-installed. Still, it doesn’t mean that the acrimonious legal battle between the two companies is finished. Psystar could appeal, though Alsup’s ruling would seem to leave the company pretty far up that certain creek it’s been traveling lately–without a paddle.

There remain a number of accusations to be decided at trial, among them, Apple’s claims of breach of contract, trademark infringement, trademark dilution and unfair competition. Beyond these, there are the damages that will almost certainly be brought against Psystar on the copyright issues in the case.

“The court asked for briefs on that subject,” Pamela Jones notes over at Groklaw. “In short, Psystar is toast. Psystar’s only hope now is Florida, and frankly I wouldn’t bet the house on that one. Judges notice if you were just found guilty of a similar cause of action in another state.”

Psystar –

Seeqpod, founded in 2005, has raised either $5 million or $7 million since then (I can’t vouch for either number). But its Chapter 11 filing lists assets of just $2 million, and debts of $1.6 million.

I’m used to seeing bankruptcy filings where the debt number is much bigger than the asset number. But as Seeqpod bankruptcy attorney Scott L. Goodsell patiently explained to me last night, companies frequently seek Chapter 11 specifically so they can stay pending litigation.

In this case, Seeqpod is trying to get a breather from lawsuits filed by Warner Music Group (WMG), and, more recently, EMI Music Group. Both music labels say the search engine violates their copyright by offering users streaming music it hasn’t licensed.

Seeqpod says it’s protected by the Digital Millennium Copyright Act, but at this point, Seeqpod’s legal arguments don’t matter nearly as much as its bank account.

It already owes Farella Braun + Martel, its lawyers in the copyright cases, $424,235.06, according to the filing. That’s four times more than what it owes Level 3 Communications (LVLT), its bandwidth provider.

Meanwhile, as battered as the big music companies are, they can certainly afford to keep paying their lawyers. Warner’s stock price is hovering in the $2 range, but it threw off $160 million in free cash flow in the last quarter.

Even in the good old bubble days, it would be hard for a site like Seeqpod to find investors willing to back it in a legal fight where it was that badly outgunned. Seems unlikely that it will find a champion willing to pick up the tab now.

The country’s parliament passed Section 92a of the Copyright (New Technologies) Amendment Act in 2008, also known as the “three-strikes” rule, which would have come into play in February 2009. If an Internet user was even accused of file-sharing or otherwise violating copyright laws, his or her Internet-service provider would cut off service.

The implementation of the amendment was pushed back to March 27 so that ISPs could agree on a code of conduct, but the rallying cry from Internet free-speech organizations such as the Creative Freedom Foundation pushed the Parliament to rethink its strategy.

How could a democratic government consider cutting off Internet access for people who haven’t been convicted of a copyright violation? Danny O’Brien, the international outreach coordinator at the Electronic Frontier Foundation, says that New Zealand changed its copyright law to be in accordance with the Digital Millennium Copyright Act in the U.S., but then chose to interpret the language differently than the U.S.

Read the rest of this post

The Times is still struggling to figure out how to adapt its business model to the Web era. But it seems to have have embarked on a campaign against after sites that lift too much of its content–a strategy that chairman Arthur Sulzberger Jr. alluded to in a speech last week.

The Times has already had reached out to aggregators Newser, the Huffington Post and Silicon Alley Insider to complain about various incidents. In the case of Newser, it sent a boilerplate letter threatening legal action.

The latest example: Apartment Therapy, a New York-based design/consumption blog network, says the paper has sent it a takedown notice, citing the Digital Millennium Copyright Act, demanding that the site remove “all the pictures we’ve blogged from them in 2009.”

In a post, co-founder Maxwell Gillingham-Ryan complains that the Times doesn’t understand that his sites reprint the paper’s photos because they think they’re great.

“We’ll fully admit to loving their pictures, but we’ve been very conscious to never take too much from them, only blogging a visual “taste” of an article and then pushing readers to get the rest on their site. In other words, our editorial policy has been to quote, not appropriate, just like we were all taught in high school.”

Times spokeswoman Catherine Mathis declined to comment.

I can already hear the blogosphere getting ready to denounce the paper for “not getting” the “culture” of the Web, where everybody reposts everyone else’s work, and everyone in the “link-based economy” benefits. But like the Newser incident earlier this year, this one seems pretty clear: The paper doesn’t want other people–or at least commercial sites–using its photos without permission.

We hold these truths to be self evident:

That as long as Apple’s iPhone is locked, there will be those who wish it open. And that as long as this is the case, iPhones will be jailbroken and outfitted with third-party applications not vetted by Apple. And this will remain so regardless of whether or not Apple manages to convince the U.S. Copyright Office that jailbreaking an iPhone is copyright infringement and a violation of the Digital Millennium Copyright Act. So all this jawing over Apple’s legal stance on iPhone jailbreaking is ultimately for naught.

So the Electronic Frontier Foundation can argue that jailbreaking is protected under fair-use doctrines. And it can urge the Copyright Office to add a jailbreaking exemption to the DMCA on the grounds that “the culture of tinkering (or hacking, if you prefer) is an important part of our innovation economy.” And Apple (AAPL) can insist that such an exemption is “an attack on Apple’s particular business choices with respect to the design of the iPhone mobile computing platform and the strategy for delivering applications software for the iPhone through the iPhone App Store.”

And they can go round and round and round. But their sparring and bloviating will ultimately be meaningless. Because if Apple’s history with iPhone jailbreaks (see stories below) has taught us anything, it’s that they’re essentially unstoppable.

PREVIOUSLY:

• Apple HQ on Defcon 1 Tantrum Alert After iPhone 2.0 Crack
• iBrokeIt
• Latest Use for $100 iPhone Credit: Replace Inoperable iPhone

We hold these truths to be self evident:

That as long as Apple’s iPhone is locked, there will be those who wish it open. And that as long as this is the case, iPhones will be jailbroken and outfitted with third-party applications not vetted by Apple. And this will remain so regardless of whether or not Apple manages to convince the U.S. Copyright Office that jailbreaking an iPhone is copyright infringement and a violation of the Digital Millennium Copyright Act. So all this jawing over Apple’s legal stance on iPhone jailbreaking is ultimately for naught.

So the Electronic Frontier Foundation can argue that jailbreaking is protected under fair-use doctrines. And it can urge the Copyright Office to add a jailbreaking exemption to the DMCA on the grounds that “the culture of tinkering (or hacking, if you prefer) is an important part of our innovation economy.” And Apple (AAPL) can insist that such an exemption is “an attack on Apple’s particular business choices with respect to the design of the iPhone mobile computing platform and the strategy for delivering applications software for the iPhone through the iPhone App Store.”

And they can go round and round and round. But their sparring and bloviating will ultimately be meaningless. Because if Apple’s history with iPhone jailbreaks (see stories below) has taught us anything, it’s that they’re essentially unstoppable.

PREVIOUSLY:

• Apple HQ on Defcon 1 Tantrum Alert After iPhone 2.0 Crack
• iBrokeIt
• Latest Use for $100 iPhone Credit: Replace Inoperable iPhone

The MPAA “RealNetworks’ RealDVD should be called StealDVD,” said MPAA Executive Vice President and General Counsel Greg Goeckner in a statement. “RealNetworks knows its product violates the law and undermines the hard-won trust that has been growing between America’s movie makers and the technology community. The major motion picture studios have been making major investments in technologies that allow people to access entertainment in a variety of new and legal ways. This includes online video-on-demand, download-to-own, as well as legitimate digital copies for storage and use on computers and portable devices that are increasingly being made available on or with DVDs. Our industry will continue on this path because it gives consumers greater choices than ever. However, we will vigorously defend our right to stop companies from bringing products to market that mislead consumers and clearly violate the law.”

Uri Geller, the purported spoon-bending paranormalist, apparently did neither when in May of 2007 he sent a DMCA take-down notice to YouTube demanding that it remove a clip debunking his “supernatural” abilities. And boy, did he ever pay for it.

You see, Geller didn’t own the video. And that made his DMCA take-down notice unlawful, as the Electronic Frontier Foundation pointed out when it filed suit against him for misrepresentation of copyright claims. “We’ve seen a rash of people abusing the DMCA lately, attempting to take down legitimate criticism and commentary online,” EFF staff attorney Jason Schultz said at the time. “To allow thin-skinned public figures like Uri Geller to abuse this system forces critics to remain silent and creates unfair hurdles for free speech to thrive online.”

Well, the hurdle to which Schultz was referring was knocked down today when Geller settled the EFF suit. Under the terms of the settlement, Geller will license the disputed footage, all eight seconds of it, under a noncommercial Creative Commons license. A monetary settlement was also reached, but the terms are not public–unless you too are a paranormalist and can divine them.

Google has finally made an official comment on Microsoft’s unsolicited $44.6 billion bid for Yahoo and, as one might imagine, it’s not a ringing endorsement. In a statement yesterday posted to the company’s blog, Google’s chief legal officer, David Drummond, argued that a Microsoft-Yahoo merger “raises troubling questions” and would pose significant competitiveness issues.

“Could Microsoft now attempt to exert the same sort of inappropriate and illegal influence over the Internet that it did with the PC?” Drummond asked. “While the Internet rewards competitive innovation, Microsoft has frequently sought to establish proprietary monopolies–and then leverage its dominance into new, adjacent markets. Could the acquisition of Yahoo allow Microsoft–despite its legacy of serious legal and regulatory offenses–to extend unfair practices from browsers and operating systems to the Internet?”

Then, noting that Microsoft and Yahoo operate the two most widely used Web portals, he asked if a merged company might limit the ability of consumers to freely access competitors’ email, IM and Web-based services. “This is about more than simply a financial transaction, one company taking over another,” he concluded. “It’s about preserving the underlying principles of the Internet: openness and innovation.”

And remember kids, you can make money without doing evil–especially if you have more than 70% of paid search revenues worldwide …

Quite a letter, and one full of the sort of FUD (fear, uncertainty and doubt) and faux altruism normally associated with Microsoft missives. The software giant, of course, was quick to take exception. The company issued a terse statement yesterday refuting Google’s protests, arguing that a merger of Yahoo and Microsoft will create a stronger rival to Google. “The combination of Microsoft and Yahoo will create a more competitive marketplace by establishing a compelling No. 2 competitor for Internet search and online advertising,” Brad Smith, Microsoft’s general counsel, wrote. “The alternative scenarios only lead to less competition on the Internet. Today, Google is the dominant search engine and advertising company on the Web. Google has amassed about 75% of paid search revenues worldwide and its share continues to grow. According to published reports, Google currently has more than 65% search-query share in the U.S. and more than 85% in Europe. Microsoft and Yahoo, on the other hand, have roughly 30% combined in the U.S. and approximately 10% combined in Europe. Microsoft is committed to openness, innovation and the protection of privacy on the Internet. We believe that the combination of Microsoft and Yahoo will advance these goals.”