Slashdot Mirror
Apple Wins Against Bloggers
linuxwrangler writes "Saying that no one has the right to publish information that could have been provided only by someone breaking the law, judge James Kleinberg ruled that online reporters for Apple Insider and PowerPage must reveal their sources. No word yet on an appeal."
(Note: More coverage in this news.com story)
This judge has clearly shown that he has a grasp of the fundamental issues surrounding this case, and has realized that this is not a case about whether online sites are "journalists" or about the "right to blog". It's about when it's about when the dissemination of information in the public interest clearly overrides any other legal concerns or contracts and entitles journalists to not reveal their sources - and when it clearly doesn't.
And if you're not going to RTFA, here is some of the jugde's ruling:
"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.[1]
[...]
Defining what is a 'journalist' has become more complicated as the variety of media has expanded. But even if the movants are journalists, this is not the equivalent of a free pass.
[...]
The journalist's privilege is not absolute. For example, journalists cannot refuse to disclose information when it relates to a crime.
[...]
[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 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.
[...]
The public has had, and continues to have, a profound interest in gossip about Apple. 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."
Note that the judge did not say that Think Secret and other online sites weren't journalists; indeed, he tacitly acknowledged that they, and many others, may in fact be "journalists". But that fact is, correctly, irrelevant. In other words, online sites or bloggers may in fact be journalists; this isn't about "the right to blog". However, being a "journalist" does not automatically mean the mechanisms of obtaining information, the information itself, and the sources of the information are automatically protected by journalist shield laws and exempt from discovery, especially when otherwise applicable laws (such as the UTSA) may have been violated. In other words, when a crime may have been committed (and the burden of whether or not this information constitutes a "trade secret" still rests on Apple, even after this ruling).
Further, the judge makes no distinction between online publications and mainstream newspapers, simply a distinction that any and all information gathering mechanisms are not necessarily protected if other laws are violated. The assertion on the part of some that "these subpoenas wouldn't exist if it was the New York Times or salon.com" is baseless at best.
No doubt someone will find issue with what is or isn't "public interest" and the fact that the courts (i.e. the "government") must make such a determination and is simply shifting the importance of whether someone can be considered a "journalist" to another consideration, essentially allowing the government to decide what is "acceptable" to be leaked and what isn't, and will make arguments that this will make it easier for corporations and/or the government to hide abuses, stop whistleblowers, etc. However, all of these arguments are red herrings. The court clearly acknowledged that sources information in the clear public interest must indeed be protected. Further note that the court DID NOT rule on the merits of Apple's claim itself, i.e., that the information was in fact a trade secret: "The order of this court does not go beyond the questions necessary t
Do we like this because it's Apple, or do we hate this because 'geeks' lost their case...
Dear Apple,
...
I heard it on Slashdot.org
There was this guy, I think he was call Anthony Coward or something, and he was telling me all about the fab new stuff.
liqbase
This isn't about protecting sources, this is corporate espionage plain and simple. They're not protecting reporting sources, they're shielding criminals.
From Slashdot:
No word yet on an appeal.
From the article:
He said the trio would appeal the judge's ruling.
Oi, this is getting bad. I mean, do the submitter read the articles they submit?
-Valiss
This blogger, whom I have become completely addicted to, wrote the best article I've read on the subject. It deals with only one of the several lawsuits filed, but the points he makes are real thought-provokers.
Sorry for being such a shameless pimp, but I really think people who are interested in this Apple story would be interested in this article.
(I got the link from MacSlash last weekend.)
This ruling is solely concerned with whether the journalists are entitled to be protected from Apple's subpoena of their records. Quoting the ruling:
"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."
Because nobody will want to tell them anything anymore, since they have no guarantee of identity protection.
File under 'M' for 'Manic ranting'
People who publish trade secrets that might hurt a company are forced to reveal their sources, but people who publish Top Secret documents are protected. (Anybody remember that stupid ruling on The Pentagon Papers?) I guess that proves that businesses are more important than National Security.
Good, inexpensive web hosting
This helps to ensure that the legal system cannot simply apply the letter of the law and steamroll over everyone. It also helps to prevent people from using laws to shield illegal activity.
Jesus was a compassionate social conservative who called individuals to sin no more.
The employees stole and disclosed company trade secrets. The broke the law and are criminals, they should be treated as criminals.
The people that published this material are accessories to a crime and should also be treated as criminals.
This isn't about free speech, this is about a crime.
Saying that no one has the right to publish information that could have been provided only by someone breaking the law
It's about time Robert Novak was thrown in jail for outing Valerie Plame!
Oh - we're just talking about Apple insiders? Who gives a fuck?
Education is the silver bullet.
Your entire post is irrelevant to the topic at hand, but I'll pick just this piece:
You're wrong in a million ways, but the most important one is this. This particular expression of speech does not in any way present a clear and present danger to life and limb and consequently, it not only "ought" to be protected, it is protected according to the Supreme Court of the United States of America. Threatening someone's profit margin is not the same thing as threatening their safety.
The speech IS protected. No one is going to throw the proprietors of Think Secret, PowerPage, or AppleInsider in jail over their speech.
What is NOT protected are their sources, who are breaking currently in force, legally binding confidentiality agreements to reveal the information, and the fact that the web sites, by publishing said information, are also in violation of the Uniform Trade Secrets Act, versions of which have been adopted by 45 states including California.
This is not about speech. This is not about the right to blog. And if you think it's about the employees' right to "speak" about topics covered under confidentiality agreement, apparently someone forgot to tell them, and you, that they don't have to work there if they have that little respect for good-faith agreements with their own employer.
Oh, come off it. Revealing the unethical and borderline murderous behavior of tobacco companies serves a clear and immediate public interest. What "public interest" does it serve to protect the guy who leaks confidential information about the next Power Mac revision?
As the judge wrote, an interested public is NOT the same as a public interest.
By your argument it should be legal to yell the proverbial "fire" in a crowded theater, or to lie to potential investors about a company's finances.
Heck, by your argument trade secret law is unconstitutional, and "top secret" information should be legally publishable willy-nilly.
You've confused two issues here. First, freedom of speech has never covered the publication of stolen (or secret) documents; it is the freedom to say what you think and to communicate freely. That does not mean you're free to consipire to kill people; it means that you can express unpopular opinions (or at least it used to; today that's not so clear).
Second, you're touching on public interest, ala Watergate. The judge also wrote a cogent bit about that and how there's a difference between public interest in corruption in govenment and, as he put it, an "interested public" that's just hungry for details about whether the next iCrap will be pink or purple.
Cheers
-b
If I wanted a sig I would have filled in that stupid box.
If you think it should only require that broad and self-referential notion of "public interest" to relieve journalists of having to reveal their sources when it's obvious they were privy to a crime, then it's hard to imagine any circumstances under which you'd think they should be forced to name their sources. Surely you don't believe there exist no such circumstances?
From the Judge's opinion, posted on the EFF's site:
In short, Apple had strong enough evidence that this information wasn't just accidently leaked to convince the court that trade secret laws had been violated and for the subpeonas to go forward.
Back in 1995 Steve Young of CNN told me "CNN protects its sources." I was on the phone with him discussing having CNN send a camera crew to interview me the next day.
I had just told him there was no way he could put me on the air. Intel was at that time reeling from the consequences from the fiasco that was the math flaw in the Pentium processor.
What I had in my possession made that math flaw look like a minor hang nail.
I had trade secret documents from Intel, legally released to me under non-disclosure agreement (since expired, so now the tale can be told).
The contents of those documents revealed flaws in Intel 486 processors that basically rendered them "Unsafe at any speed".
Countless users were suffering crashes, data loss, God alone only knew what forms and totals of lost productivity, revenue, opportunities were being wracked up daily due to the serious flaws. And even Microsoft was being unfairly painted with creating even less reliable software than they genuinely deserved to be excoriated for (the infamous BSOD's weren't always their fault...)
Steve was trying to convince me that "the public good" out weighed my honoring Intel's non-disclosure agreement.
He told me that I could mail the documents to him and that "CNN protects its sources."
Here it is 10 years later and I wonder, how many folks would agree with Steve and how many will support my decision to not hold Intel accountable for their abuses of the public trust.
The simple math flaw had reportly cost Intel $600 million for a few million chips shipped. The cost of a recall for the far more serious flaws in the 100's of millions of 486 processors shipped could very well have bankrupted Intel, many 486 chips were soldered to their boards.
Or at the very least have damaged their reputation so badly they would have had a very hard time regaining the public's trust.
I just wanted to say, the Judge today served up a nice fat juicy sound bite for the press to report. But he's wrong. The right of large corporations to protect their trade secrets is not absolute.
I also can't help but wonder what the Judge in today's case would have had to say to CNN if I had been at risk in breaking my non-disclosure agreement with Intel?
Apple has their problems, and if enough customers are persistent enough they generally own up to them and take responsibility for making things right. And today's ruling didn't cover the kinds of information being disclosed that I had from Intel.
But if Apple rides success with their iPod's upwards and loses the ability to take responsibility, I hope today's ruling doesn't come back to bite us in the ass.
Yeah I know, sounds great coming from the guy that covered Intel's ass when he had the chance.
But for a moment, just a moment there, I was tempted to mail those documents.
What motivated me to silence wasn't a fear of CNN being forced to turn me over. No, it was the advice I got from the local Intel distributor: if anything about the 486 showed up on CNN, Intel would act like I had released it to CNN, whether Intel could prove it or not.
Turns out, the company I worked for had already gone to Intel and covered their asses... (and Intel paid them off very nicely too)
After today's ruling, I wouldn't even be tempted.
Bravo Judge, on this day that will live on in infamy for the actions of a few in Spain this date 3/11/4, you have indeed struck a blow to protect truth, justice and the American way.
As others have already pointed out, there's plenty of evidence that the 3 webpublishers knew well in advance the information they were given by their sources was protected under an NDA. That's not what I'm going to talk about, or freedom of the press. I'm all for it, my wife is a newspaper reporter for chrissakes. No I'm going to talk about the concept of trade secrets and how it applies to our capitalist economy.
Trade secrets are inventions,(new products) and revisions to existing products, if there are more things that might fall under the definition, they don't really matter in this case so don't flame me for omitting a few. If a company invents something(ipod) or revises a currently shipping company product(new g5 powerbook, new powermacs, etc) they are allowed to issue NDAs to their employees to keep their traps shut about them with good reason. If company x finds out about the new products before Apple in this case is ready to release it, and company x copies product and releases at the same time before patents have been issued, then Apple is screwed and loses revenue because of it.
As you may or may not know, under capitalism companies generally invent and innovate new products so that they themselves can gain the revenue from their research. With no trade secrets or NDAs there is no longer an incentive to do research as a company and capitalism fails.
With that out of the way, the judge was right to back Apple, if he hadn't many other companies would be severely put in a pickle fiscally by employees leaking detailed specs to other companies. Our economy would be in shambles, and you would all be out of jobs. Granted there is a bit of a slippery slope implied there but thats the fundamental logic behind the case.
The fact that people are upset about Apple getting a big boost in this stage of the case is absolutely astonishing to me. Freedom woohoo and all but there are limits to every freedom, press, speech, right to arms, every single one of them. The websites in question and the sources should be punished, for different reasons, the sources for breech of contract and the websites for publishing information they knew to be acquired in an illegal manner.
cheese logs keep my wang warm at night.