TD's framework is a nice by numbers run through. It's fun to apply it to things like news media, music, film/TV, etc.
I think there's a continuum from scarce to infinite, so at some point you have to draw a line and say everything on the left is free and everything on the right is increasingly valuable. I would think this line depends on your funding situation, the ease of adoption of your product, etc.
I'm finding it difficult to work out what the jurisdiction of this order is. The point above about the EU treating an IP as personal data seems very relevant, but a quick skim read of the judgement document didn't reveal any limits, simply that Google should copy the data on to some hard drives and ship 'em to Viacom.