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Apple Loses This Round In Blogger Case
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it cannot identify the sources of the challenged information by means other than compelling petitioners to disclose unpublished information.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."
BZZZT!
Quote from the ruling, via Wired:
//Information does not want to be free; it wants to breed.
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
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.
"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.
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.
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
Professor Eugene Volokh (who is more a symbiotic lawyer) has a reasonable translation at the Volokh Conspiracy that is lay comprehensible.
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.
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.
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."