Newspapers Back Apple Bloggers

puke76 writes "Remember the bloggers being sued by Apple? Well now they've attracted the attention and support of some major newspapers. There's a story over at BBC. The newspapers are arguing that journalism sources should be protected. Can we blog without legal repercussions?" From the article: "Recent corporate scandals involving WorldCom, Enron and the tobacco industry all undoubtedly involved the reporting of information that the companies involved would have preferred to remain unknown to the public..."

Comments

Public Interest?

[TripMaster Monkey]

From the article:

Sources who give journalists details of corruption or wrongdoing are traditionally protected by law, if the story is in the public's interest.

Now, IANAL, granted, but I'm having a hard time understanding how leaking trade secrets about a company's upcoming product could be construed to be 'in the public's interest', and thus merit this sort of protection.

Also from the article:

"Recent corporate scandals involving WorldCom, Enron and the tobacco industry all undoubtedly involved the reporting of information that the companies involved would have preferred to remain unknown to the public," said the brief.

This is cute...likening Apple to WorldCom, Enron (trying to cover up massive accounting scandals), and the tobacco industry (trying to pretend they believe tobacco is not a deadly drug), to Apple (trying to protect its trade secrets and intellectual property).

Now, don't get me wrong...I'm all about the free speech...but this sort of thing simply doesn't deserve the same sort of protection that journalists receive. If it is granted that protection, then all legitimate journalism is weakened as a result, and we may ultimately see a decline in our right to free speech, rather than an increase.

Re:Public Interest?

[Sanity]

Now, don't get me wrong...I'm all about the free speech...but this sort of thing simply doesn't deserve the same sort of protection that journalists receive.

And who sits in judgement of what speech is and isn't worthy of protection? You perhaps? That isn't free speech.

Re:Public Interest?

[nocomment]

When you say TradeSecret, I think you are referring to ThinkSecret. Also, ThinkSecret is NOT being sued. They were supeoned(sp?) to court to provide the source of the info, so the real leak could be sued. I actually agree with you that ThinkSecret IS a publication and IS deserving of of protection under the first amendment. Except that the journalist benefit is not absolute as the judge put it, and does not apply when a crime has been committed. In this particular case the guy the leaked the info commited a crime. Therefore is makes no difference if ThinkSecret is a journalism outlet (that's why the court spent so little time talking about that) because they'd still have to give up the info anyway. The court never even bothered to decide if ThinkSecret is a publication, because as I've said elsewhere, it doesn't make a difference if they are or aren't the end result is the same, give up the info.

Re:Public Interest?

[TGK]

No, the title of Journalist does not make one above the law.

At the same time, because the United States (likes to think that it) respects the freedom of the press, there are protections laid out for journalists.

Noteably, there exists a kind of confidentiality between a journalist and his sources. A similar confidentiality exists between a doctor and patients, and between a religious officials and their parishoners.

There exist some professions that rely on the trusted exchange of information between two individuals. We protect journalists because, were we to force them to give up sources, we would effectively silence any critical ideas. This is fundamentaly not what is meant by freedom of speech.

Sure, Apple has a case against the people that leaked information. It doesn't have any buisness trying to extricate their names from the blogers in question. What is told to a journalist remains in strictist confidance. The Pentagon Papers are a perfect example of why.

Great

[daveschroeder]

Great

So now, in their world, all anyone has to do to knowingly break binding contractual confidentiality agreements that they have agreed to in good faith with their employers with no danger whatsoever of being caught, is simply by leaking it to a web site!

No secrets! Power to the people! Down with the the man!

And stuff.

* Cue slashdot chorus singing "That's the companies' problem and they should hire their own investigators to find the leaks" *

An interested public != public interest

Re:Where does it stop?

[XxtraLarGe]

There's nothing in the Constitution that says freedom of the press only applies to professionals.

Judge's Words, Paraphrased

[White Roses]

I think I recall reading that the judge in this case said, essentially, that information of interest to the public is not the same as information in the public interest. It was in the public interest to report wrongdoing on the part of Enron, WorldCom and the tobacco industry. It is of interest to the public what the next Apple products might be. The informants in the former case should be protected. In the latter case, not. The judge in this case seems to be a very clear thinker in that respect.

Not surprising, actually.

[bigtallmofo]

I think throwing their support behind bloggers accomplishes two goals for the mainstream press:

1. It shows they're not "old media" looking to kill "new media" with any chance they're given.
2. It keeps one source of their information coming

Many news stories in the last few years never would have happened were it not for bloggers. The mainstream media made a killing reporting on things that were originally posted on blogs (the Dan Rather document comes to mind as a big example).

Regardless of the legality or morality of the blogger's actions, I see this as a win-win situation for mainstream media.

The Difference...

[ackthpt]

Enron, World Con^Hm, big tobacco were hiding dirty business. Apple was trying to keep a new product under wraps until scheduled announcement. These are, um, apples and oranges.

The difference: illegal activity vs information

[mveloso]

In the cases sited (whistleblower cases), the people involved were exposing violations of Federal law.

In the Think Secret case, the issue is whether a journalist (whatever definition you use) can refuse to provide the identity of an individual (or individuals) who provided trade secrets or confidential information about upcoming products.

Even the tobacco guys were more like whistleblowers, as they showed (or tried to show) that Congressional testimony by executives was demonstrably false.

The Think Secret case is nowhere near this, and Apple will most likely succeed. If Think Secret exposed a violation of law somewhere (death rays to be deployed in Cupertino, toxic waste, etc) then maybe they'd have a chance.

But as is, well, Think Secret is toast. They've gotta use better anonymizers, that's all.

This isn't 1st Ammendment Rights...

[fussili]

as John Gruber noted it's pure and simple trade secrets law:

http://daringfireball.net/2005/03/new_york_times

Now I don't happent to know the legal system in the US all to well, my knowledge of IP law only covers the English system but it's fairly clear that this case has nothing at all to do with freedom of speech. Desperately trying to paint it as such is simply indicative of having no case to answer Apple's claim.

I was shocked to see the Instapundit being dragged in, Paul Reynolds is a law professor for Pete's sake. This isn't Bloggers trying to get the protection of Big Media because we have it at law, this is trying to do what many people have attempted in the past - using the 1st amendment as a shield to protect fraudulent activity. It hasn't worked in the past and it looks like it wont now.

All this case will prove is that bloggers are as much subject to Trade Secrets law as anyone else.

If you support the EFF

[rsborg]

and you don't like the position they are taking on this case, let them know: information@eff.org.

I have written and told them I DO NOT WANT my donation being used for this case, as I don't believe "freedom of the press" should be used as a "get out of jail free" card. There should be proof of "public interest" first.

What would you have done if you were Apple?

[ABaumann]

Every so often, people mention Apple being mean and heavy handed in this instance, but think about what you would have done in their shoes.

Apple has had multiple leaks over the past few months.

- 60 GB iPod
- OS X 10.4
- iPod Shuffle
- iPod Mini

So, basically everything they plan to come out with gets leaked. They need to prove that their NDA's mean something. They asked for the source, couldn't get it, so they subpoenad. Then, the guy supboenad said he wouldn't reveal his sources because of freedom of the press or something, so Apple sued.

It's crucial that companies be able to protect their information. Can I divulge business sensitive information to reporters because I know they can't reveal me as their source?

Not everything is a trade secret!

[lmlloyd]

It is great and all to talk about how this is a case that deals with trade secrets, not freedom of speech, but I can't help but notice that time and time again all the Apple supporters consistently ignore that the judge they are so fond of quoting specifically said that he doesn't know if this material is actually a trade secret!

A trade secret is not any little piece of information a business decides it doesn't want to get out. Many businesses these days like to put up forums in lieu of giving a customer a phone number to contact, that doesn't make their phone number a trade secret. Many businesses like to keep pay of their employees confidential, that doesn't make your paycheck a trade secret.

A trade secret is an invention, process, or method that is vital to your business, and that you actively protect and to which you actively limit internal access. For example, a formula for some sort of beverage, might be a trade secret, however, if you post the formula in the break room of every bottling plant, then you can no longer expect protection of trade secret status for that formula, because you have failed to maintain secrecy. By the same token, it is HIGHLY unlikely that ANY marketing material (even internal marketing material) could be considered a trade secret. By its very nature, marketing material is practically in and of itself a violation of the very concept of a trade secret. Trade secret law is a subset of IP law that exists to protect highly sensitive information that is critical to the core business of a company. It is not a method by which the owner of a company is suppose to be able to sue someone for letting the public know his favorite color.

What is really at issue has absolutely nothing at all to do with whether or not a company is entitled to protect its trade secrets. If this were a clear trade secret, then there would be no debate. What is at issue here is whether or not a paranoid company can get away with trying to claim that every trivial piece of information generated in the day to day operations of their business, can be claimed as a trade secret any time they choose.

The ramifications of this are huge! It means that any celebrity could successfully sue for any rumor about them acting badly on the set, because how they act on the set is a trade secret. Any movie studio could sue anyone for passing rumors about an in-production movie, because that is a trade secret. Any software company could sue anyone publishing rumors about their development, because that is a trade secret. You are talking about completely standing our current model on its head, and shifting the balance of power to the company with a presumption that it is the reporter who must show some public good, rather than the company which must show some demonstrable harm.

Anyone who thinks that is a trivial change, is someone far too enamored of a single company to think rationally about this issue. There are a plethora of sites and publications (this one included) that would pretty much have to shut their doors if it is decided that a company can arbitrarily use trade secret protections for any information they choose, unless some grater public good can be demonstrated.

Re:Apple

[adzoox]

It's because Apple is right in this case ... contrary to what the reporters at these papers are saying ... there is no corporate scandal here, there is no health risk... plain and simple ... items were STOLEN from the Apple Campus and thenreported in opposition to the Uniform Trade Secret Act.

I suppose i wille flamebait and say ... besides ... the first ammendment was specifically written sothe public could have redress against the government and have the freedom to do so.

That said, if Apple were involved in corporate scandal or posing a health risk, those reporting WOULD have immunity because it would be an issue the government would have to address and impune.

For more on this issue, read:

Save Nick vs Save Apple ...