Beatles judge finds iTunes 'nothing to get hung about'

... the delivery methods of the time, such as CDs or tapes, the judge wrote. If Apple Computer were selling SD (secure digital) cards on iTunes, that would be different, but the mere sale of data isn't the same thing, according to the ruling.

As for whether the Apple Computer logo on iTunes and in advertisements creates a connection between Apple Computer and the content in violation of the agreement, the judge ruled that the average person can distinguish the difference between a record label and the store in which the music is purchased.

Similar, but different Apples
"A user would be familiar with the notion of buying recordings of creative works from a retailer, and would be capable of not seeing any other association between retailer and the music other than that arising out of the sale itself. That is what happens in shops," the judge wrote.

In 1991, when the two companies drafted the agreement in question, they couldn't have foreseen the growth of the Internet and the digital music explosion, which is in part what makes technology litigation so difficult, said Karol Kepchar, an intellectual-property attorney with Akin Gump in Washington, DC. "Clearly they didn't anticipate this type of convergence," she said.

In the end, the two companies have similar logos and both are involved in the music business, but they are different enough for consumers to distinguish between Apple the record label and Apple the music store, Kepchar said. "I think this is a sound way of looking at this."

The ruling is a strict conservative interpretation of UK trademark law, and a US court might have ruled differently, said Gregory Rutchik, a lawyer with Liner Yankelevitz Sunshine and Regenstrif in San Francisco. A US court, he noted, might have felt that the average person these days considers Apple Computer to be as much of a digital-music company as a personal-computer vendor. Still, "it's a legitimate distinction" to separate the store from the content source, he said.

The decision is a big victory for Apple Computer, which had to pay Apple Corps to settle the dispute in previous years, said Michael Gartenberg, an analyst with Jupiter Media. Legal analysts had expected Apple Computer to have to pay up once again, but Mann agreed with Apple Computer that there's a difference between the sale of a CD and the sale of data that happens to be music, he said.

Apple Corps is expected to appeal the decision. If it's upheld on appeal, Apple Computer and the Beatles might finally come together.

"We are glad to put this disagreement behind us," Apple Computer chief executive Steve Jobs said in a statement. "We have always loved the Beatles, and hopefully we can now work together to get them on the iTunes Music Store."