Friday, March 11, 2005

Judge: Apple can pursue fan site sources

In an expected trial court decision a California Judge has ruled that Apple has the right to subpoena the records in their lawsuit against a web site which released supposed trade secrets - actually pre-released information on their products:

update Apple Computer has the right to subpoena the electronic records of a Web site that published items about an unreleased product, a judge ruled Friday.

The judge said that Apple can go ahead and obtain records from Nfox, the e-mail service provider to Mac enthusiast site PowerPage. In the ruling (click here to download the Word document), Santa Clara County Superior Court Judge James P. Kleinberg ruled that Apple's interests in protecting its trade secrets outweighed the public interest in the information.

"Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, (the enthusiast sites) are doing nothing more than feeding the public's insatiable desire for information," Kleinberg wrote.

What's new:
A judge ruled that Apple has the right to subpoena electronic records of Web sites that published items about unreleased product.

Bottom line:
California's trade secrets law protects against the publication of private information, the judge ruled, in a decision that will likely be viewed with dismay by traditional media outlets, which themselves often publish confidential information about corporate plans.

More stories on this topic

Apple has been seeking the right to subpoena the Mac sites to learn the identities of the worker or workers who leaked information about Asteroid, an unreleased music product. In the case, filed late last year, Apple is not suing the Mac sites themselves, but rather those who leaked the information. In another case, Apple is suing another enthusiast site, Think Secret, alleging that it infringed on Apple's trade secret in soliciting inside information.

In the ruling, the judge largely brushed off the question of whether the publishers were journalists and therefore protected from facing contempt charges for refusing to divulge sources under California's shield law. "Defining what is a 'journalist' has become more complicated as the variety of media has expanded," he said. "But even if the movants are journalists, this is not the equivalent of a free pass."

That aspect of the decision will likely be viewed with dismay by traditional media outlets, which themselves often publish confidential information about corporate plans.

Apple info 'stolen property'
California's trade secrets law protects against the publication of private information, Kleinberg said. Although longstanding law forbids courts from preventing the publication of information, publishers are still subject to the consequences of their actions afterward, he said.

The information about Apple's unreleased products "is stolen property, just as any physical item, such as a laptop computer containing the same information on its hard drive (or not) would be," the judge wrote. "The bottom line is there is no exception or exemption in either the (Uniform Trade Secrets Act) or the Penal Code for journalists--however defined--or anyone else."

"An interested public is not the same as the public interest."
--Judge James P. Kleinberg

The judge delayed the enforcement of the ruling for seven days to provide time for an appeal. An attorney for the Electronic Frontier Foundation, which is representing two of the sites being sued, said he would ask a higher court to overturn the ruling.

"Case law shows that subpoenaing a journalist must be a last resort," said EFF attorney Kurt Opsahl. "Apple did not use this as a last resort, but did only a perfunctory investigation before going on to subpoena the journalists."

An Apple representative had no immediate comment on the ruling.

Kleinberg acknowledged the intense interest of Mac fans in knowing about products, but said that does not mean there is a need that outweighs Apple's right to protect its information.

"The public has had, and continues to have, a profound interest in gossip about Apple," the judge ruled. "Therefore, it is not surprising that hundreds of thousands of 'hits' on a Web site about Apple have and will happen. But an interested public is not the same as the public interest."

In making the ruling, the judge said that, on the face of things, Apple had laid out a case that the information the sites reported could amount to trade secrets. He said that the posting by PowerPage publisher Jason O'Grady was taken directly from a confidential Apple slide presentation.

"The posting by Mr. O'Grady contained an exact copy of a detailed drawing of 'Asteroid' created by Apple," Kleinberg wrote. "The drawing was taken from a confidential set of slides clearly labeled 'Apple Need-to-Know Confidential.' In addition, technical specifications were copied verbatim from the confidential slide set and posted on the online site."

The judge was careful to note that his ruling did not extend to the merits of Apple's underlying case.

"The order of this court does not go beyond the questions necessary to determine this motion seeking a protective order against that single subpoena, and it cannot and should not be read or interpreted more broadly," the judge said. "The court makes no finding as to the ultimate merits of Apple's claims, or any defenses to those claims. Those issues remain for another day."

Never fear this ruling will be overturned on appeal. Look for MSM to help in the appeal.

Hey Apple.....DROP THE F**KING SUIT!

Update # 1

Why Apple should stop suing bloggers

This morning's San Jose Mercury News contains a scathing, fantastic open letter to Steve Jobs by Mike Langberg, urging him to back off from his ongoing legal actions to get online journalists to reveal their sources:
There's another old saying in my profession: The mission of journalists is to comfort the afflicted and afflict the comfortable.

Apple looks comfortable, even smug, by insisting online publishers such as the 19-year-old Harvard University freshman who runs ThinkSecret should face huge financial liabilities just because it's embarrassing for you to introduce new products at the big Macworld show after details have been revealed in advance online.

You don't want to look hypocritical. You've grabbed the media spotlight with both hands, much to Apple's benefit, so you shouldn't suddenly complain the beam is too bright.

Reg Req'd Link, try ""

Update #2

Yahoo News take on the story:

SAN JOSE, Calif. - A California judge on Friday ruled that three independent online reporters may have to divulge confidential sources in a lawsuit brought by Apple Computer Inc., ruling that there are no legal protections for those who publish a company's trade secrets.

Apple sued 25 employees who allegedly leaked confidential product information to three Web publishers. The Cupertino-based company said the leaks violated nondisclosure agreements and California's Uniform Trade Secrets Act. Company attorneys demanded that the reporters identify their sources.

The reporters sought a protective order against the subpoenas, saying that identifying sources would create a "chilling effect" that could erode the media's ability to report in the public's interest.

But Santa Clara County Superior Court Judge James Kleinberg ruled in Apple's favor, saying that reporters who published "stolen property" weren't entitled to protections.

"What underlies this decision is the publishing of information that at this early stage of the litigation fits squarely within the definition of trade secret," Kleinberg wrote. "The right to keep and maintain proprietary information as such is a right which the California Legislature and courts have long affirmed and which is essential to the future of technology and innovation generally."

Free speech advocates and attorneys for the reporters criticized the ruling, insisting that all journalists should enjoy the same legal protections as reporters in mainstream newsrooms. Among those are protections afforded under California's "shield" law, which is meant to protect journalists and encourage the publication of information in the public's interest.

"This opinion should be concerning to reporters of all stripes, especially those who report in the financial or trade press and are routinely reporting about companies and their products," said Electronic Frontier Foundation attorney Kurt Opsahl, who represented the reporters.

He said the trio would appeal the judge's ruling.

Apple spokesman Steve Dowling said the ruling affirmed the company's view that "there is no license conferred on anyone to violate valid criminal laws."

The case has been widely watched in the fast-growing world of Web logs — or blogs, Web sites that contain articles or diary entries and that recently have propelled stories into the mainstream.

Kleinberg, however, ruled that no one has the right to publish trade secrets that only could have been provided by someone breaking the law.

"The journalist's privilege is not absolute," Kleinberg wrote. "For example, journalists cannot refuse to disclose information when it relates to a crime."

In December, Apple sued several unnamed individuals, called "Does," who leaked specifications about a product code-named "Asteroid" to Monish Bhatia, Jason O'Grady and another person who writes under the pseudonym Kasper Jade. Their articles appeared in the online publications Apple Insider and PowerPage.

In a court hearing last week, Apple attorneys said that Bhatia, O'Grady and Jade weren't necessarily journalists — merely people who disseminated product releases and other data, adding little analysis or journalistic context.

Kleinberg refused to say whether Bhatia, O'Grady and Jade were members of a protected class of journalists. He did not rule against the reporters because they wrote for relatively obscure Internet sites, he said, but because they violated trade secret laws.

"Defining what is a 'journalist' has become more complicated as the variety of media has expanded," Kleinberg wrote. "But even if the movants are journalists, this is not the equivalent of a free pass."

They said Apple was trying to curtail their First Amendment rights because they lacked the legal and financial resources of mainstream publications to fight such information requests.

"Apple is using this case as a desperate attempt to silence the masses of bloggers and online journalists that it cannot control but feels it can intimidate," Jade, who has been writing about Apple for more than eight years, wrote in an e-mail earlier this week.


On the Net:


Apple Insider:

Think Secret:

H/T: Boing Boing and Cory

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