This suit has nothing to do with whether Apple Corps and Apple Computer are both distributing music. It also has nothing to do with whether the logos' can be distinguished from each other. That may be the arguing points, but it isn't the reason why there is a suit TODAY.
It has to do with the fact that Apple didn't properly fight the very first suit. Once they gave in to Apple Corps, and handed over that $80,000, the die was cast for the future.
Once an agreement like that is made, both parties have to agree to change it. Like it or not, it becomes a contract. One party is not allowed to break, or change, the terms of a contract. Apple Corps is insisting that that is exactly what happened.
So, while it's pretty obvious that the logo's are different, it doesn't matter.
Even Apple Corps lawyer has said that if Apple Computer stopped using the logo in iTunes, everything would be fine.
But, if the court rules that using the logo goes against the agreement, then the second part of the trial comes into play, and that's the penalty phase. If Apple had to pay $26 million last time, there is no reason to believe that the court wouldn't think that there is value this time.
While none of us here are happy about this thought, that doesn't mean that it won't come true.
The publishing phrase is complex. It has been applied to web sites before. One of the ways the courts here, and abroad, have decided, is whether or not the web site changed, in any way, the information posted.
So, if Google removed offensive posts, or edits out the offensive portions, then it is considered to be a publisher. If it doesn't touch, or even check them, then it is not.
The point that Apple Corp is making is also in that same vein. Apple decides what music to sell on their site. They also decide what compilations to make, etc. That's considered to be "publishing".
From what is going on in the trial, Apple seems not to be saying (so far) that electronic digital publication is not covered by the agreement, which is where I thought they would be taking this, but rather that the digital transmission and payment for the music doesn't constitute publication at all.
I'm not so sure that this is the best route to take. My wife, who is a lawyer with CitiGroup, and who deals with copyright, trademark, and patent issues all the time for the company, also thinks that this isn't the best choice of defense.
While they might win anyway, it seems that few lawyers who deal with these issues, agree that what Apple, and other companies, are doing on line with music, is anything other than publishing.
The revelation that Apple Computer offered Apple Corps $1 million for the rights to the name "Apple", shows that they were concerned about this issue being a problem again. What I don't understand, is why they didn't go into negotiations much earlier before iTunes became such a hot property.
Even at that time, Apple had $5 billion in the bank. They could have offered a realistic amount. $1 million is a rather paltry sum, considering the money on both sides.