Apple Loses This Round In Blogger Case

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Apple Loses This Round In Blogger Case

Posted by ryuzaki0 on Friday May 26, 2006 @09:08AM from the mask-stays-on dept.

smart2000 writes "A decision has been handed down in O'Grady, et al. v. Superior Court of Santa Clara County, the case commonly referred to as 'Apple vs Bloggers', in previous Slashdot posts. While like any court case it is complex, the short of it is that O'Grady won this round." From the article: "Apple has failed to demonstrate that it cannot identify the sources of the challenged information by means other than compelling petitioners to disclose unpublished information. This fact weighs heavily against disclosure, and on this record is dispositive."

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dispositive? by Marxist+Hacker+42 · 2006-05-26 09:10 · Score: 2, Funny

Is that anything like double-plus-ungood? Winston Smith, are you in there someplace?

--
SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
1. Re:dispositive? by davebarnes · 2006-05-26 09:13 · Score: 1
  
  My reaction exactly. What is wrong with "negative" or "not positive"?
  
  --
  Dave Barnes 9 breweries within walking distance of my house
2. Re:dispositive? by sedyn · 2006-05-26 09:17 · Score: 2
  
  IANAL but I assume the term is based on this.
  
  --
  Am I open minded towards open source, or closed minded towards closed source?
3. Re:dispositive? by WilliamSChips · 2006-05-26 09:22 · Score: 2, Funny
  
  Am I open minded towards open source, or closed minded towards closed source?
  Yes.
  
  --
  Please, for the good of Humanity, vote Obama.
4. Re:dispositive? by Marxist+Hacker+42 · 2006-05-26 09:33 · Score: 2, Informative
  
  Oh, dispos-itive, as in a tendancy to be disposed, as opposed to dis-positive, or negative......
  
  --
  SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
5. Re:dispositive? by Jerry+Coffin · 2006-05-26 09:36 · Score: 3, Informative
  
  Is that anything like double-plus-ungood?
  
  "Dispositive" isn't from "dis-positive". It's from the same root as "disposition", "dispose", etc. What they're saying is that they don't need to send this case back to the lower court for a retrial or anything like that -- they have enough evidence to make a final decision about the case.
  
  --
  The universe is a figment of its own imagination.
6. Re:dispositive? by Marxist+Hacker+42 · 2006-05-26 09:53 · Score: 1
  
  And lawyers wonder why we engineers and mathematicians snigger behind their backs. What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer....
  
  --
  SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
7. Re:dispositive? by Anonymous Coward · 2006-05-26 10:05 · Score: 0
  
  You fail it, he could be neither.
8. Re:dispositive? by deathy_epl+ccs · 2006-05-26 10:13 · Score: 2, Insightful
  
  What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer...
  
  While legal loopholes most definitely get abused, having all laws be "absolute, black & white, this is the way it is" has a lot of potential to really break down in situations where a little bit of common sense can save the day.
  
  That said, writing the laws more clearly is not a bad thing... just making it a strict logical construct such as Modus Ponens ("if A, then B. B, therefore A") will not work in a real society.
  
  Besides, the shysters out there (which is not all lawyers, but enough of 'em) would find some way to abuse solid logical constructs too. Give a person enough time and motivation, and they'll find an exploit for any given situation.
9. Re:dispositive? by Marxist+Hacker+42 · 2006-05-26 10:27 · Score: 1
  
  While legal loopholes most definitely get abused, having all laws be "absolute, black & white, this is the way it is" has a lot of potential to really break down in situations where a little bit of common sense can save the day.
  
  I'm not sure I believe in the existance of "common sense" anymore- and thus would rather have society run more like an operating system. Preferably one where there is a bug appeal process, but still at least deterministic instead of indeterministic.
  
  That said, writing the laws more clearly is not a bad thing... just making it a strict logical construct such as Modus Ponens ("if A, then B. B, therefore A") will not work in a real society.
  
  Why not? If we believe in rule of law above all else, why should anybody be allowed to twist the construct to something less than absolute?
  
  Besides, the shysters out there (which is not all lawyers, but enough of 'em) would find some way to abuse solid logical constructs too. Give a person enough time and motivation, and they'll find an exploit for any given situation.
  
  Well, that's the fun part- if we code it all in boolean logic, we can replace the lawyers AND the judges with incorruptible expert systems.....
  
  --
  SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
10. Re:dispositive? by general_re · 2006-05-26 10:32 · Score: 1
  
  ...just making it a strict logical construct such as Modus Ponens ("if A, then B. B, therefore A") will not work in a real society.
  That logical construct is going to be pretty strictly limited to imaginary societies, insofar as it's not actually a modus ponens argument - "if A, then B. B, therefore A" is in fact the fallacy of affirming the consequent. Modus ponens takes the form "If A, then B. A, therefore, B."
  Just FYI before you actually submit your bill in committee :^)
  
  --
  ABSURDITY, n.: A statement or belief manifestly inconsistent with one's own opinion.
11. Re:dispositive? by pilgrim23 · 2006-05-26 10:33 · Score: 1
  
  Lawyers can actually make decisions? I thought they were too busy cashing checks..
  
  --
  - Minutus cantorum, minutus balorum, minutus carborata descendum pantorum.
12. Re:dispositive? by Jerry+Coffin · 2006-05-26 10:37 · Score: 2, Insightful
  
  And lawyers wonder why we engineers and mathematicians snigger behind their backs.
  Oddly, many of the lawyers I know are engineers. I can see where almost anybody could end up a bit twisted from trying to snigger behind their own back... :-)
  What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer....
  
  Experience with programming languages, design specification languages, etc., would tend to indicate that even when everybody wants the communication to be clear, it often isn't. Add in a (sometimes quite strong) motivation to misread, misunderstand, etc., and there's virtually no chance you can prevent all misunderstanding and such.
  Don't get me wrong -- I'm certainly not trying to say law-writing isn't open to improvement. At the same time, my own experience has been that a lot of the law is written far more carefully than it's given credit for. There's also quite a bit of room for a bit of judgement in legal matters -- in fact, I'd say some of the worst laws around are those that attempt to be completely binary, and remove all human judgement.
  
  --
  The universe is a figment of its own imagination.
13. Re:dispositive? by Marxist+Hacker+42 · 2006-05-26 10:44 · Score: 1
  
  Experience with programming languages, design specification languages, etc., would tend to indicate that even when everybody wants the communication to be clear, it often isn't. Add in a (sometimes quite strong) motivation to misread, misunderstand, etc., and there's virtually no chance you can prevent all misunderstanding and such.
  
  So eliminate the human experience entirely- let the machines read the law, and let them give us the answer. I just want the law to become deterministic- the same answer out for the same input variables, every time.
  
  Don't get me wrong -- I'm certainly not trying to say law-writing isn't open to improvement. At the same time, my own experience has been that a lot of the law is written far more carefully than it's given credit for. There's also quite a bit of room for a bit of judgement in legal matters -- in fact, I'd say some of the worst laws around are those that attempt to be completely binary, and remove all human judgement.
  
  Sounds wonderfull to me- as long as the law is properly advertised, it becomes extremely easy to comply with.
  
  --
  SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
14. Re:dispositive? by jthill · 2006-05-26 11:22 · Score: 2, Interesting
  
  In adversarial games worth playing, public deterministic strategies lose.
  
  --
  As always, all IMO. Insert "I think" everywhere grammatically possible.
15. Re:dispositive? by Marxist+Hacker+42 · 2006-05-26 11:34 · Score: 2, Interesting
  
  In adversarial games worth playing
  
  Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life.
  
  --
  SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
16. Re:dispositive? by deathy_epl+ccs · 2006-05-26 11:50 · Score: 1
  
  I'm not sure I believe in the existance of "common sense" anymore- and thus would rather have society run more like an operating system. Preferably one where there is a bug appeal process, but still at least deterministic instead of indeterministic.
  
  heheheh... hard to argue with your statement about common sense in general, but I've seen a fair amount of common sense coming from judges. Maybe nobody else in the entire governmental process, but I have seen (as recently as this week) judges that can and do think.
  
  Why not? If we believe in rule of law above all else, why should anybody be allowed to twist the construct to something less than absolute?
  
  My concern is actually only 1 part abuse, and also 1 part flexibility for the law to adapt to an unusual circumstance.
  
  Well, that's the fun part- if we code it all in boolean logic, we can replace the lawyers AND the judges with incorruptible expert systems....
  
  I think you seriously misjudge the ability of the American political and legal system to corrupt anything. In order for your proposition to work, we would first need to replace our politicians with incorruptible expert systems... an idea that is not necessarily bad, but good luck convincing them to do it in the first place. Catch-22.
17. Re:dispositive? by deathy_epl+ccs · 2006-05-26 11:52 · Score: 1
  
  That logical construct is going to be pretty strictly limited to imaginary societies, insofar as it's not actually a modus ponens argument - "if A, then B. B, therefore A" is in fact the fallacy of affirming the consequent. Modus ponens takes the form "If A, then B. A, therefore, B."
  
  Oh, hell... you're right. I had meant to type "If A, then B. A, therefore B" but I'm going to blame my typo on the beautiful weather and the fact that I was inside, at work, and the air conditioning was down.
  
  That's my story and I'm sticking to it. heheheheh
18. Re:dispositive? by Anonymous Coward · 2006-05-26 13:29 · Score: 1, Interesting
  
  Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life.
  Amazing how those sentences are so physically close together, and yet one has to make an enormous leap to get from one to the other.
19. Re:dispositive? by The+Only+Druid · 2006-05-26 13:44 · Score: 2, Interesting
  
  "Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life."
  
  Life is an adversarial game. It's a zero-sum competition, which means we are all adversaries. The fact that we form alliances in order to better compete with other alliances doesn't change the fact that we are still engaged in an adversarial game.
  
  --
  "Stumble before you crawl"
20. Re:dispositive? by penix1 · 2006-05-26 13:56 · Score: 1
  
  "So eliminate the human experience entirely- let the machines read the law, and let them give us the answer. I just want the law to become deterministic- the same answer out for the same input variables, every time."
  
  You mean 42 isn't good enough for you?!?!
  
  B.
  
  --
  This is a sig. This is only a sig. Had this been an actual sig you would have been informed where to tune for more sigs.
21. Re:dispositive? by jthill · 2006-05-26 14:56 · Score: 2, Interesting
  
  Perhaps "worth" was the wrong word to use. Games have a mathematical structure. I intended "worth" to refer to situations, whose mathematical structure mathematicians call "games", that have no forced win or draw strategy. Our legal system is adversarial and it follows rules. I was responding to someone's suggestion we get computers to apply those rules to presented cases, in deterministic fashion. The full spelling of my remark is that no deterministic automaton in an this situation can succeed long-term against competent, unpredictable people who choose to "game the system".
  Perhaps you'd rather I used the older version of my remark: "eternal vigilance is the price of liberty". I was only trying to keep it light. Sorry.
  
  --
  As always, all IMO. Insert "I think" everywhere grammatically possible.
22. Re:dispositive? by CableModemSniper · 2006-05-26 17:44 · Score: 1
  
  let C be the set of all conditions for a given case.
  let F(C) be a function mapping from a set of conditions to a verdict.
  F(C) = Guilty.
  See, there you go. And it's really easy to optimize the implementation!
  
  --
  Why not fork?
23. Re:dispositive? by Wellington+Grey · 2006-05-26 18:43 · Score: 1
  
  Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life.
  
  Shall we play a game?
  
  How about Global Thermonuclear War.
  
  Wouldn't you perfer a nice game of chess?
  
  -Grey
  
  --
  Silver Clipboard: Time Management Tips
24. Re:dispositive? by Anonymous Coward · 2006-05-26 23:26 · Score: 0
  
  "A decision has been handed down in O'Grady, et al. v. Superior Court of Santa Clara County, the case commonly referred to as 'Apple vs Bloggers', in previous Slashdot posts. While like any court case it is complex, the short of it is that O'Grady won this round."
  
  should be
  
  "A something else but a non-decision has been handed in the opposite direction of up in O'Grady, et al. v. Superior Court of Santa Clara County, the case not quite uncommonly referred to as 'Apple vs Bloggers', in those Slashdot posts that aren't yet to come. While not unlike any court case it is certainly not simple, the short of it is that O'Grady didn't lose this round."
  
  The second quote is ok though.
25. Re:dispositive? by fbjon · 2006-05-27 07:15 · Score: 1
  
  Prove F.
  
  --
  True confidence comes not from realising you are as good as your peers, but that your peers are as bad as you are.
26. Re:dispositive? by CableModemSniper · 2006-05-27 08:47 · Score: 1
  
  I don't have to prove it, it's the hypothetical function programmed by the legislature for our hypotehtical computerized judicial system. (Hence the dangers in having the law interpreted by computers.)
  
  --
  Why not fork?
27. Re:dispositive? by DarkVader · 2006-05-28 01:49 · Score: 1
  
  I think saying that we believe in the rule of law above all else is the problem with that construct.
  
  Keep in mind that laws are written by a group of people who have throughout history proven to be among the most corrupt and corruptable people in society. They are currently elected to represent 50.1% of the people who actually bother to vote at all. The selection process by which they are placed on the ballot is far less than transparent, and subject to the whims of the power structures of two large and entrenched political parties, frequently leaving a choice at vote time of two evils.
  
  So, no, I don't believe the rule of law above all else can possibly be a good thing given the lawmakers.
28. Re:dispositive? by Swift2001 · 2006-05-28 06:42 · Score: 1
  
  It means "decisive." The root is "disposing." In other words, in a lawsuit about property, the final decision has to do with the disposing of the property involved.
29. Re:dispositive? by Swift2001 · 2006-05-28 20:17 · Score: 1
  
  One thing can be guaranteed, such a mathematical law would be unjust, foolish, and not a fit law for a democratic republic. There is no math involved in writing a law. I think, however, it's an art that is in danger of being lost. It must contain absolutes, but also be pragmatic, and contain enough exceptions that the courts don't fill up with people appealing this or that. There is nothing, absolutely nothing, Boolean about a just and livable law.
30. Re:dispositive? by Marxist+Hacker+42 · 2006-05-30 04:56 · Score: 1
  
  Amazing how those sentences are so physically close together, and yet one has to make an enormous leap to get from one to the other.
  
  Not that enourmous- if you have to fight, then you've failed at the type of cooperation all parents try to teach their kids by age 3.
  
  --
  SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
yea! by Anonymous Coward · 2006-05-26 09:10 · Score: 0

yea!
Cool! by jargoone · 2006-05-26 09:10 · Score: 2, Funny

Does this mean AsSeenOnTV can have his job back?
1. Re:Cool! by Paradise+Pete · 2006-05-26 13:33 · Score: 1
  
  Does this mean AsSeenOnTV can have his job back?
  I always figured either they got to him or it was Jobs himself, possibly with technical assistance.
2. Re:Cool! by Anonymous Coward · 2006-05-26 17:30 · Score: 0
  
  AsSeenOnTV never said anything that wasn't published at some Apple rumor site somewhere. He was a nobody.
3. Re:Cool! by Paradise+Pete · 2006-05-27 00:14 · Score: 1
  
  AsSeenOnTV never said anything that wasn't published at some Apple rumor site somewhere. He was a nobody.
  You could be right. He was pretty darn sharp though. Was he ever wrong about anything? The rumor sites are wrong all the time. And you'd think a nobody would want to "reappear" once in a while to get whatever thrill he was getting in the first place.
  I'm not betting that it was Jobs, though.
4. Re:Cool! by Steve+Cowan · 2006-05-29 00:16 · Score: 1
  
  Isn't that the same guy who insisted we'd never see a video iPod?
5. Re:Cool! by taskforce · 2006-05-29 22:28 · Score: 1
  
  He was very sharp indeed. This post actually displays an understanding of the theory behind certain issues. I admit I was wrong in my line of argument in that article btw, I simply wanted to argue with Steve :)
  This particular post is the one I'm talking about.
  
  --
  My 3D Texturing Skinning work (under construction)
6. Re:Cool! by taskforce · 2006-05-29 22:31 · Score: 1
  
  argh, damn HTML. http://apple.slashdot.org/comments.pl?sid=146369&c id=12262787
  
  --
  My 3D Texturing Skinning work (under construction)
I told you! by Ana10g · 2006-05-26 09:11 · Score: 0

The courts said that bloggers are not journalists... now if we could only convince CNN!

--
just an analog boy living in a digital age.
1. Re:I told you! by Ana10g · 2006-05-26 09:17 · Score: 1
  
  just kidding... seems my eyes don't work very well this late on a Friday afternoon in the office. Anyone seen my beer goggles?
  
  --
  just an analog boy living in a digital age.
Ralph Wiggum by revery · 2006-05-26 09:11 · Score: 3, Funny

Me fail grammar? That's dispositive...

--
This is a joke. I am joking. You have been joked with.
IANAL - so I wonder.... by Dark+Paladin · 2006-05-26 09:14 · Score: 2, Insightful

Does this case work then to help establish that bloggers can be considered "press" - and just because a person doesn't work at a corporate or even print newspaper, they are still protected under typical laws and rules the protect journalists? (For whatever that means.)

--
52 Weeks, 52 Religions with John Hummel
1. Re:IANAL - so I wonder.... by Pfhreak · 2006-05-26 10:11 · Score: 3, Informative
  
  A lot of people have tried to make this case about whether bloggers are journalists or not, but the judges have always sidestepped that. The first ruling, when the defendants tried to block the case under California's shield laws, was rejected on the grounds that revealing the existance of the Mac Mini and an audio break-out box wasn't whistleblowing, since they weren't reporting on a health risk coverup or bribery or the like, and that these items were trade secrets. The rulings since then have all been that Apple didn't do the appropriate footwork to find out for themselves who was leaking information before going to court. (Companies are supposed to make every effort to find out the source of trade secret leaks by internal means before subpoenaing people: the court system does not exist as a counter-idustrial-espianoge service for lazy companies.)
  
  --
  The U.S. Constitution needs to be ammended with a "separation of business and state" clause.
2. Re:IANAL - so I wonder.... by Anonymous Coward · 2006-05-26 12:44 · Score: 0
  
  Does this case work then to help establish that bloggers can be considered "press"
  
  No, and it probably never will, because that isn't and never has been what the case is about. The defense keeps bringing it up because it sounds nice, not because it has anything to do with the facts of the case. Even journalists don't have a right to break the law. If you read this and previous decisions, you'll see numerous places where the court has stated that they are explicitly avoiding the question of whether the defendants should or shouldn't be considered journalists, because it doesn't make any difference in this case. The EFF wants a precedent to be set, but the courts aren't going for it.
3. Re:IANAL - so I wonder.... by IntlHarvester · 2006-05-26 13:20 · Score: 1
  
  The "blogosphere" tried to make this thing into a Blogs vs Journalist issue, but the fact is that it's more of a news site than a "blog". The guy reports Mac news and rumors for a living.
  
  (Although I notice that since this thing started, he started using blog-like publishing software. http://www.powerpage.org/)
  
  --
  Business. Numbers. Money. People. Computer World.
Can someone translate? by Ritz_Just_Ritz · 2006-05-26 09:15 · Score: 2, Insightful

For those of us who aren't parasitic lawyers? :-)
1. Re:Can someone translate? by Kamiza+Ikioi · 2006-05-26 09:20 · Score: 3, Informative
  
  Basically, the court afforded bloggers the same protections under the law that are given to all journalists, including shield laws.
  
  shield law n. A law that protects journalists from being compelled to reveal confidential sources of information. - Answers.com
  
  --
  I8-D
2. Re:Can someone translate? by dgatwood · 2006-05-26 09:55 · Score: 2, Informative
  
  No, in this case, they did not rule on that issue in a general case. They ruled that in this specific case, the actions of the bloggers fell soundly within the bounds of journalism. They explicitly refused to set any bounds on what is and is not legitimate journalism, however, and as such this case sets very limited precedent at best.
  Essentially, the sum total results of this decision were that someone acting in a journalistic capacity qualifies as a journalist, without further refining the definition thereof. Whoop-de-freaking-doo.
  
  --
  Check out my sci-fi/humor trilogy at PatriotsBooks.
3. Re:Can someone translate? by Snorklefish · 2006-05-26 09:55 · Score: 1
  
  As a lawyer, I thought the court's holding was somewhat humorous. Wrote the court:
  We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis(m).' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here,
  The thing is, when the court applied the journalists' shield law to bloggers, they implicitly accepted that bloggers were "legitimate" journalists. The court did precisely what they said they didn't do.
4. Re:Can someone translate? by TheViewFromTheGround · 2006-05-26 09:55 · Score: 4, Informative
  
  Basically, the court afforded bloggers the same protections under the law that are given to all journalists, including shield laws.
  
  Actually, the court said that they didn't want to rule on what qualifies a person as a "journalist" but would rather focus on the activity. That's a quite sane and reasonable approach.
  
  I'm currently in the midst of a case where the city of Chicago is aggressively pursuing a subpoena of a writer I work with for our online reporting on police misconduct in conjuction with a federal civil rights lawsuit (see The View From The Ground). One of the questions in these cases always centers on whether or not the writer is "really" a journalist. This court sets a useful precedent in arguing that the spirit of shield laws is intended to protect the activity of making and distributing "news" and not "journalists" per se. Of course, there's no federal shield law, so our situation is different.
  
  Following the court's logic in this case, you have to wonder how much "journalism" (as in material that appears in newspapers, magazines, etc) is protected by shield laws.
  
  --
  Online citizen journalism from the inner city: The View From The Ground
5. Re:Can someone translate? by Anonymous Coward · 2006-05-26 09:56 · Score: 1, Informative
  
  Professor Eugene Volokh (who is more a symbiotic lawyer) has a reasonable translation at the Volokh Conspiracy that is lay comprehensible.
6. Re:Can someone translate? by slughead · 2006-05-27 02:25 · Score: 1
  
  Actually, the court said that they didn't want to rule on what qualifies a person as a "journalist" but would rather focus on the activity. That's a quite sane and reasonable approach.
  
  I doubt a judge would make the mistake of informing the public that journalists are no better or worse than the average joe. There's an imaginary line between self-righteous idiots who re-write associated press articles for a living and a humble blogger who does the same thing for free.
  
  --
  Latewire
7. Re:Can someone translate? by TheViewFromTheGround · 2006-05-27 03:33 · Score: 1
  
  Essentially, the sum total results of this decision were that someone acting in a journalistic capacity qualifies as a journalist, without further refining the definition thereof. Whoop-de-freaking-doo.
  
  But isn't that exactly how shield laws should work? Is a blogger a journalist? If they're gathering or distributing news. Is a NY Times writer a journalist? If they're gathering or distributing news. Why should a reporter for the mainstream media automatically get subpoena immunity in discovery via a shield law while a blogger can't? Seems obvious, but being the midst of one of these and following the others closely, the public and legal discourse definitely needs more analysis along these lines.
  The cool thing here is that the decision makes significant progress on the definition of "news" and extends it to include source material published. From the decision:
  
  [A]n absence of editorial judgment cannot be inferred merely from the fact that some source material is published verbatim. It may once have been unusual to reproduce source materials at length, but that fact appears attributable to the constraints of pre-digital publishing technology, which compelled an editor to decide how to use the limited space afforded by a particular publication. This required decisions not only about what information to include but about how to compress source materials to fit. In short, editors were forced to summarize, paraphrase, and rewrite because there was not room on their pages to do otherwise.
  
  Digital communication and storage, especially when coupled with hypertext linking, make it possible to present readers with an unlimited amount of information in connection with a given subject, story, or report. The only real constraint now is time-the publisher's and the reader's. From the reader's perspective, the ideal presentation probably consists of a top-level summary with the ability to 'drill down' to source materials through hypertext links. The decision whether to take this approach, or to present original information at the top level of an article, is itself an occasion for editorial judgment. Courts ought not to cling too fiercely to traditional preconceptions, especially when they may operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editors' own 'spin' on a story.
  
  This is a pretty significant finding by the court that displays a keen understanding of "editorial oversight" and a creative and wise interpretation of how such oversight applies to online publications.
  
  Given all the crazy things that could've happened, this is really good.
  
  --
  Online citizen journalism from the inner city: The View From The Ground
8. Re:Can someone translate? by TheViewFromTheGround · 2006-05-27 03:37 · Score: 1
  
  Actually, check out the decision:
  
  [W]e can see no sustainable basis to distinguish petitioners from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience." "If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.
  
  --
  Online citizen journalism from the inner city: The View From The Ground
9. Re:Can someone translate? by dgatwood · 2006-05-27 05:22 · Score: 1
  
  But isn't that exactly how shield laws should work?
  Yes. They should. Anyone serving in a journalistic capacity should be treated as such. My point was that a case holding that people engaging in journalism via blogs are equivalent to those engaging in journalism for online newspapers, unpaid college newspapers, unpaid college online newspapers, etc. was inevitable, and the decision on that point was similarly inevitable. Thus, that aspect of the ruling was a complete eye roll and a yawn.
  Is a blogger a journalist?
  Are they engaging in journalistic practices? Or are they publishing hearsay and innuendo? Pre-teen girls babbling about who kissed who at last night's party definitely do not qualify. Geeks talking about what they did at work today do not qualify. People typing editorial rants (like this one) about legal cases do not qualify. This definition is the interesting question, and sadly, it was not addressed.
  As you mentioned, the decision did talk about editorial judgment, but in my opinion, they got it very wrong. I'm not convinced that the people in this case were truly acting in a journalistic fashion. Real journalists take classes in journalism/communications law and ethics. I took one back in the day. In my opinion, these people were acting well outside the bounds of respectable or even acceptable journalistic practices. IMHO, if you don't follow a reasonable code of ethics, you are not a journalist. The eighth bullet point in the SPJ's code of ethics should be eye-opening.
  Editorial oversight is not just about space constraints. Yes, editors usually do that, but even in newspapers, they give more information in the online version because those constraints are not there. I don't see how that is at all relevant to the question of whether publication of trade secrets constitutes journalism.
  Editorial oversight also includes deciding what should and should not be published for ethical reasons. For an extreme example, if a "news rag" published the name of a rape victim, I'd damn well want them to NOT be protected by shield laws in that case. I think I speak for most people when I say that I'd want to personally beat the living shit out of that source. There are bounds of privacy, ethics, and general good taste that go into editorial decisions, and I don't think the court ruling gave due consideration to that aspect of editorial oversight.
  Editorial judgment also includes determining with some degree of certainty that the information published is factually accurate. This may be waived in the case of threats to public safety, but the lack of "Apple Computer declined to comment" pretty much screams "this is not journalism" to me.
  In effect, this court decision put tabloids in the same shield bucket as legitimate journalists, which sickens me to some degree. It doesn't surprise me, as a lot of the traditional news outlets these days seem to have descended to the level of tabloid journalism lately, so I'm really not surprised that people sitting on the court wouldn't know the difference, but it does sicken me to see just how low "journalism" has sunk as of late. It's a real shame to see the word journalism watered down to include such unprofessional behavior.
  
  --
  Check out my sci-fi/humor trilogy at PatriotsBooks.
10. Re:Can someone translate? by cyberformer · 2006-05-27 05:34 · Score: 1
  
  The case is about a California state law, so it's probably not that useful in Chicago. (But it's still a good thing, of course.)
11. Re:Can someone translate? by NameCritic · 2006-05-27 13:11 · Score: 1
  
  Not much protection if atty gen gonzales has his way. He wants to make it a crime to report on information obtained through leaks.
  
  --
  Chris McElroy aka NameCritic http://www.blogs.pn
12. Re:Can someone translate? by DarkVader · 2006-05-28 02:15 · Score: 1
  
  "Pre-teen girls babbling about who kissed who at last night's party definitely do not qualify."
  
  Um, what?
  
  They most certainly DO qualify, as their target audience is much more interested in the goings-on at last night's party than in the shooting at the 7-eleven. They are journalists.
  
  If the precedent could be set that they weren't, the gossip columns in nearly every major newspaper could be declared "not journalism" which would be very dangerous to a free society.
  
  Likewise, geeks writing about what they did at work today qualify, assuming that they have an audience. People writing editorial rants about legal cases (like yours) qualify.
  
  The concept that a journalist must be someone who has taken classes or has decided to follow a "code of ethics" is patently rediculous, and is not at all what the First Amendment was written to protect.
13. Re:Can someone translate? by TheViewFromTheGround · 2006-05-28 03:00 · Score: 1
  
  The case is about a California state law, so it's probably not that useful in Chicago. (But it's still a good thing, of course.)
  
  Agreed. The lawsuit that we reported on (an alleged series of incidents of grace police misconduct) is actually a federal civil rights suit. But, even though a California court doesn't set jurisprudential precedent at the federal level, certainly such cases do have an impact on the way judges think about these issues.
  
  --
  Online citizen journalism from the inner city: The View From The Ground
14. Re:Can someone translate? by Swift2001 · 2006-05-28 20:26 · Score: 1
  
  I think you're misreading the decision. Apple wanted them to remove the journalist's shield, California variety, I suppose because it "isn't real journalism, in which the public interest is served." The court said, there is no test we can devise for that, and the whole enterprise of telling "real" journalists from "fake" journalists is not the court's business. So I think in essence, they said that the California shield law did apply to these bloggers, at least. By implication, I think a lot of California bloggers on other subjects can breathe a little easier, though this will not be the last on this subject.
15. Re:Can someone translate? by dgatwood · 2006-05-30 08:42 · Score: 1
  Let's not confuse the issue. The first amendment protects a lot of things. We aren't talking about the first amendment. We are talking about shield laws. Shield laws are designed to protect journalists, period. They are not designed to protect gossip columnists. They are not designed to protect every crazy person who decides to write lies about someone in a blog. And so on.
  
  Gossip is not journalism. Editorializing is not journalism. Journalism is defined as reporting of the news with the intent to inform its target audience. News is further defined as factual information of relevance to the target audience. Now let's compare:
  
  Gossip is the reporting of information without regard to whether or not it is factual, primarily to entertain the audience. It's like the "Funny" moderation on Slashdot, or at best, the "interesting" mod.
  
  Editorializing is the reporting of an opinion to influence its target audience. It's like the "Flamebait" mod---or if you disagree with them, possibly the "Troll" mod....
  
  Geeks telling what they did is reporting of information primarily to entertain. It very rarely has any relevance. It's like the "Interesting" moderation on Slashdot."
  
  News is like the "Informative" mod.
  
  See the difference? If not, then you just proved my point about the degradation of journalism.... Your opinion is as "rediculous" (sic) as your spelling of "ridiculous".
  
  Note that I'm not saying that gossip, editorials, etc. don't have informative qualities. They often do, and to the extent that something is presented as a statement of fact within those contexts, with proper validity checking, etc., that small subset of that larger work might qualify as quasi-journalism, but you really have to consider the intent of the work as a whole before making that sort of judgment. If in doubt, for the purposes of shield laws,it is better to only editorialize in separate articles citing a separate article containing the factual content as the source. This provides the needed degree of separation between the two works and allows the factual content to fall within the realm of a shield law while the editorial babbling does not need to do so.
  
  There are times when it is necessary to publish something without definitively proving that it is true. However, at no point is it appropriate to publish something without making a reasonable attempt to validate the authenticity of your information. That is gossip, and it most certainly is NOT journalism. It does not protect a free society. It degrades a free society to a level of maturity that resembles high school. It means that everyone is always watching their backs in a paranoid fashion, so no one can truly be completely open and honest.
  
  Gossip is, in fact, the antithesis of a free society. A free society depends on the free press coupled with the wisdom to use that freedom appropriately and not abuse it. Gossip is a flagrant abuse of the free press and free speech, and when false, has very real repercussions, both on its purveyor (slander/libel lawsuits) and on its target (public embarrassment, etc.). It destroys what makes our society great, much like a malignant tumor slowly eats away at its victim from the inside out. It most certainly is not journalism, and it has never been regarded by the courts as journalism. Any representation to the contrary is disingenuous.
  --
  Check out my sci-fi/humor trilogy at PatriotsBooks.
Apple Computers? by Kamiza+Ikioi · 2006-05-26 09:17 · Score: 4, Funny

Oh, now I get it. I was so brand confused. I thought that other Apple company was suing bloggers. Like most people when I think Apple, I instantly think Beatles. ;)

--
I8-D
1. Re:Apple Computers? by joe+155 · 2006-05-26 09:22 · Score: 1
  
  Like most people when I think Apple, I instantly think Beatles
  
  hell, who can blame you, you'd have to be a "moron in a hurry" not to ; )
  
  --
  *''I can't believe it's not a hyperlink.''
2. Re:Apple Computers? by vertinox · 2006-05-26 09:43 · Score: 1
  
  And when I think Beatles-Beatles, I instantly think spammer. ;)
  
  --
  "I am the king of the Romans, and am superior to rules of grammar!"
  -Sigismund, Holy Roman Emperor (1368-1437)
Dead Wrong by abb3w · 2006-05-26 09:20 · Score: 4, Informative

The courts said that bloggers are not journalists...
BZZZT!
Quote from the ruling, via Wired:
"We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis(m).' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here."

--
//Information does not want to be free; it wants to breed.
1. Re:Dead Wrong by Ana10g · 2006-05-26 09:26 · Score: 2, Insightful
  
  Yea, sorry about that... seems I wasn't quite reading correctly. So, if I may submit a conjecture, doesn't this mean that if you can smuggle a proprietary corporate document out the door, and somehow publish it (using any means available), you are protected under the shield law?
  
  --
  just an analog boy living in a digital age.
2. Re:Dead Wrong by abb3w · 2006-05-26 09:42 · Score: 2, Interesting
  
  So, if I may submit a conjecture, doesn't this mean that if you can smuggle a proprietary corporate document out the door, and somehow publish it (using any means available), you are protected under the shield law?
  IANAL, but my lay guess: If you publish it as a journalist, you might be protected under the shield law from revealing that you are you are your own source... but you wouldn't be protected from having smuggled or stolen the document originally. Presumably, it wouldn't be hard to connect you as your own source. I'm also not sure, but I believe being an accessory may abrogate the privilege, and this ruling I believe is narrowly tailored with respect to civil (as opposed to criminal) cases; ask a real lawyer.
  So, short answer: even if you're protected as a journalist, you can still be prosecutable as a crook.
  
  --
  //Information does not want to be free; it wants to breed.
3. Re:Dead Wrong by dgatwood · 2006-05-26 09:44 · Score: 1
  
  Nope. If you smuggle it out yourself, you either had the right to see it (in which case you have a non-disclosure binding upon you and can be sued) or you broke in (in which case it is criminal trespass). If the document showed the company doing something illegal, though, you might be protected under a whistleblower law.
  Either way, as the smuggler, you are not a journalist, merely a source.
  
  --
  Check out my sci-fi/humor trilogy at PatriotsBooks.
4. Re:Dead Wrong by enrevanche · 2006-05-26 12:44 · Score: 1
  
  You didn't neccessarily break in. You could have been in the location for a legitimate reason and happen to come by the document by accident, say in the garbage. Perhaps you were a contract janitor.
  Furthermore, you would know if you had signed a non-disclosure agreement and so would they. You'd be nuts to published information in such a circumstance.
Lay speculation by abb3w · 2006-05-26 09:30 · Score: 5, Insightful

IANAL either; I just argue with them about the law. =)
My educated lay guess: First, the ruling is based in part on the California Constitution Journalist Shield, so in CA they are protected as journalists. Other jurisdictions with shield laws/amendments would consider the ruling advisory, not binding, but would probably be influenced by its arguements. In areas without specific shield laws it would again be advisory, and with more limited use due to the more limited protection of the First Amendment alone; I suppose it might give a basis for arguing against prior restraint in publication for a blog. Of course, that would imply someone would come to try and get a court to order prior restraint on a blog, an idea which would probably make most judge judges call for the Advil.

--
//Information does not want to be free; it wants to breed.
Re:dispositive? Being dispositive is not entirely by davidsyes · 2006-05-26 09:32 · Score: 2, Funny

unpossible...

--
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
Darn that EFF, it just keeps winning by btempleton · 2006-05-26 09:51 · Score: 1

How is the Register going to write an article pretending the EFF regularly loses out of this one?

--
Has it been over a year since you last donated to the Electronic Frontier Foundation
No, it's like... by rewt66 · 2006-05-26 09:52 · Score: 1

"Game over, thanks for playing."

Dispositive, as in, "part of the case can now be disposed of."
A weak victory by nsayer · 2006-05-26 09:53 · Score: 3, Insightful

The victory actually looks rather weak to me. If Apple had been able to demonstrate that they had no other means by which they could have rooted out the source of the leak, then it would seem the court would not have been able to dismiss this so easily.
Am I missing something?
1. Re:A weak victory by flooey · 2006-05-26 10:02 · Score: 2, Informative
  
  The victory actually looks rather weak to me. If Apple had been able to demonstrate that they had no other means by which they could have rooted out the source of the leak, then it would seem the court would not have been able to dismiss this so easily.
  
  Am I missing something?
  
  I don't think you're missing anything, but I also don't think that makes the victory weak. First, they didn't say that Apple would necessarily have won if this was their only way of determining the source, only that they couldn't necessarily just dispose of the suit out of hand. Second, I'm having a hard time coming up with a situation where someone wouldn't have another way of determining the source of the leak, so it seems that this would cover the vast majority of cases that will ever occur in reality.
In Cupertino, war was beginning.... by Chas · 2006-05-26 10:07 · Score: 5, Funny

SteveJobs: What happen ?
AppleDrone1: Somebody set up us the bomb.
AppleDrone2: We get signal.
SteveJobs: What !
AppleDrone2: Main screen turn on.
SteveJobs: It's you !!
O'Grady: How are you gentlemen !!
O'Grady: All your secret are belong to us.
O'Grady: You are on the way to destruction.
SteveJobs: What you say !!
O'Grady: You have no chance to survive make your time.
O'Grady: Ha Ha Ha Ha ....
AppleDrone2: Steve !! *
SteveJobs: Take off every 'Mac' !!
SteveJobs: You know what you doing.
SteveJobs: Move 'Mac'.
SteveJobs: For great justice.

--

Chas - The one, the only.
THANK GOD!!!
1. Re:In Cupertino, war was beginning.... by Carthag · 2006-05-26 13:24 · Score: 1
  
  Thanks for not pluralizing "secret". As dumb (and I'll admit, sometimes funny) as the joke is, it's even dumber when people for some reason keep pluralizing the word following "all your".
Appeal to higher court by Apple coming... by Anonymous Coward · 2006-05-26 10:15 · Score: 0

In 5... 4... 3...
Ack! I misread this on my first headline parse... by merc · 2006-05-26 10:38 · Score: 0, Offtopic

Apple loses round booger someplace ...

*blinks*

--
It's true no man is an island, but if you take a bunch of dead guys and tie 'em together, they make a good raft.
Very interesting by wootest · 2006-05-26 12:02 · Score: 5, Informative

The whole ruling is interesting reading, but towards the end (page 62 and forward) we find these very interesting lines, which I suppose sum up best why Apple lost the case:

"The publication here bears little resemblance to that in Bunner, which disclosed a sort of meta-secret, the whole purpose of which was to protect the plaintiff's members' products from unauthorized distribution. Here, no proprietary technology was exposed or compromised. There is no suggestion that anything in petitioners' articles could help anyone to build a product competing with Asteroid. Indeed there is no indication that Asteroid embodied any new technology that could be compromised. Apple's own slide stack, as disclosed in sealed declarations which we have examined, included a table comparing Asteroid to existing, competing products; there is no suggestion that it embodies any particular technical innovation, except perhaps in the fact that it would integrate closely with Apple's own home recording software--a feature reflecting less a technical advance than a prerogative of one who markets both hardware and software.

The newsworthiness of petitioners' articles thus resided not in any technical disclosures about the product but in the fact that Apple was planning to release such a product, thereby moving into the market for home recording hardware.

[..]

Publishing a computer manufacturer's proprietary code may thus be compared to publishing a miller's secret recipe for a breakfast cereal. What occurred here was more like publicizing a secret plan to release a new cereal. Such a secret plan may possess the legal attributes of a trade secret; that is a question we are not here required to decide. But it is of a different order than a secret recipe for a product. And more to the point, the fact of its impending release carries a legitimate interest to the public that a recipe is unlikely to possess."
Is it the method that matters? by riversky · 2006-05-26 13:34 · Score: 2, Interesting

So this seems to be the method I aquired the information is the issue. I seem to have broken it down like this in simple terms if I am reading things right.

If I sneak into Apple and take pictures, documnet copies etc and post them online I am not protected.

But if I am told or given those documents, pictures, etc. by another person (third party) I am protected. Is this true or am I missing something????
1. Re:Is it the method that matters? by abb3w · 2006-05-26 15:52 · Score: 1
  
  But if I am told or given those documents, pictures, etc. by another person (third party) I am protected. Is this true or am I missing something????
  IANAL, but... you would also have to be revealing them as part of a produced news periodical, although a news blog may qualify; and it cannot be a criminal case -- trade secret disclosures are civil cases. If you recieved a stolen Apple prototype, and took pictures of it yourself for your news publication, they would have a better chance at a subpoena for your source.
  
  --
  //Information does not want to be free; it wants to breed.
2. Re:Is it the method that matters? by Buran · 2006-05-26 15:52 · Score: 1
  
  Yes. Case one is trespassing and espionage. Case two is "soandso told me this". You didn't do anything illegal retelling something someone else told you, but you did when you trespassed and directly disseminated secret information.
  
  --
  i am a soviet space shuttle
For the battle, or the war? by abb3w · 2006-05-26 15:58 · Score: 1

Am I missing something?
That the court ruled that Apple has to meet as high a standard to extract a source from a news-and-rumors blogger as from (for example) a LA Times reporter.
Admittedly, that's not very high, it's California, and it's not even the state's highest court... but it's enough to leave Apple sucking Lemons, sets a precedent that will be at least considered in other US courts, and gives bloggers a little more respect than they had yesterday.

--
//Information does not want to be free; it wants to breed.
OT? Merkey article whitewashed on wikipedia by walterbyrd · 2006-05-26 17:08 · Score: 1

I have heard the wikipedia was threatend, and offered $2M, to change the Merkey story. The story was changed.

If the story was changed in exchange for money, then big money is still deciding what gets published, and what doesn't.
I applaud the court by SirBruce · 2006-05-26 18:44 · Score: 1

For those of us who run websites which often disseminate these sorts of trade secrets for the sake of the public good, this is a big win. Just because something is posted in a blog rather than printed on a printing press doesn't make in any less journalism (good OR bad), and just because it's a trade secret doesn't mean we should be forced to reveal our sources. Hopefully, this will encourage more people with inside information to feel comfortable with talking to reporters, without the fear of becoming exposed.

Bruce
1. Re:I applaud the court by slughead · 2006-05-27 02:20 · Score: 1
  
  For those of us who run websites which often disseminate these sorts of trade secrets for the sake of the public good, this is a big win.
  
  I doubt mentioning a product that's about to come out is considered a "trade secret." There were many flaws in Apple's argument, the judge went after something with less impact on the precedence.
  
  --
  Latewire
Very little to see, here. by mstone · 2006-05-27 03:13 · Score: 2, Interesting

Advocacy to the contrary, this ruling doesn't say much. The two sides are still arranging their pieces on the board, and the major facts of the case are still in play.

This is really just an example of the adversarial legal system in action. Both sides state their ideas in the strongest terms they possibly can, then the other side gets a chance to chip away as much it can.

In the previous round, the bloggers floated the idea that anyone who puts information on the internet is a journalist, and that anyone who posts protected information should receive the same legal protection as a whistleblower. The court didn't buy that, nor should anyone have expected it to. But that's where the defense started, because it would have been the simplest, strongest win they could get. All they really lost was the right to claim blanket immunity from prosectution for anyone, anywhere, under pretty much any circumstances.

Now it's Apple's turn. Apple floated the idea that it should get a free pass for discovery since the information in question was vastly important, and that the bloggers had no possible interest in publishing it. The court didn't buy that, either. Had the bloggers posted the product's schematics, or a discussion of some new, patentable idea that Apple had been working on, the decision probably would have gone the other way.

So as things stand now, the bloggers can't make the case go away on the grounds of blanket immunity, and Apple can't ask the court to fast-track its subpoenas because of the massive-and-ongoing damage it received. Neither of those was really a viable claim in the first place, but that's how the game is played.

The courts still have to rule on whether Apple has done sufficient work trying to find the leak by other means, and the bloggers still have to face questions about whether they knew the information they posted was confidential, and put it online anyway.

And NONE of this has anything to do with the question of "whether bloggers are journalists."
Bullshit by Kenshin · 2006-05-27 05:20 · Score: 1

For those of us who run websites which often disseminate these sorts of trade secrets for the sake of the public good, this is a big win.

I hate companies bullying people around as much as anyone, but "for the sake of public good" is a complete self-serving bullshit argument.

If the guy had leaked info about Apple knowingly selling faulty products, for example, that would be justifiably defended by the courts as "for the public good". But this was just "Hey d00ds! I have cool secret info! I signed a document legally binding me not to tell you... but I'll tell you anyway!"

There's a HUGE difference between "need to know" and "want to know". I like reading leaked info as much as the next guy, but I completely understand why companies want to keep it from us.

Apple keeps their cards close to their chest until release for a reason. Look what happened when Nintendo proudly showed-off their Wii controller a few months ago: Sony quickly re-tooled their controller to imitate it, while neither are close to actual release.

--
Does it make you happy you're so strange?
I'm all for freedom of the press but.... by aristotle-dude · 2006-05-27 08:30 · Score: 1

Where are the checks and balances for all this power? Can anyone use with power without carrying any responsibility for the consequences of their actions? Are there no standards or ethics? I can just see this phenomenon being used to so much ill in the wrong hands. Mr. O'Grady gives real journalism a bad name quite frankly. If the press is the fifth estate and acts as the watchers of the government, who is watching the watchers and why should their power extend to the private sector?
If a case does not involve protections of the public interest or safety, how does this have anything to do with the intended function of journalists as watch dogs?
To me, allowing bloggers with no journalistic skills or ethics to shields themselves like this is someone akin to letting the fox guard the hen house. O'Grady is an unethical profiteer, not a journalist.

--
Jesus was a compassionate social conservative who called individuals to sin no more.