March 11, 2005 12:35 PM PST

Judge: Apple can pursue fan site sources

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

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

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

News.context

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

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

More stories on this topic

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

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

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

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

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

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

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

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

An Apple representative had no immediate comment on the ruling.

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

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

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

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

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

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

42 comments

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bye apple
no mini for me
Posted by (11 comments )
Reply Link Flag
I don't...
think badly of Apple for trying to protect it's trade secrets. In this case I think they have the right to persue the person or persons responsible for leaking those trade secrets. I don't know how the law works here, but I would think if Think Secret solicited information from someone with direct knowledge of Apples products then that probably falls under stealing trade secrets even if they never intinded to use them for anything other than putting it out on the web for Mac enthusiest.
Posted by System Tyrant (1453 comments )
Link Flag
¿?
"Bye Apple...no mini for me"?

I don't think Apple is going to cry or change its mind because
you won't buy a Mac Mini...go buy a crap WinJunk PC instead.

Apple has the full right to protect their future products and
ideas. The idiot that is providing information to these sites
should be punished.
Posted by (27 comments )
Link Flag
bye apple
no mini for me
Posted by (11 comments )
Reply Link Flag
I don't...
think badly of Apple for trying to protect it's trade secrets. In this case I think they have the right to persue the person or persons responsible for leaking those trade secrets. I don't know how the law works here, but I would think if Think Secret solicited information from someone with direct knowledge of Apples products then that probably falls under stealing trade secrets even if they never intinded to use them for anything other than putting it out on the web for Mac enthusiest.
Posted by System Tyrant (1453 comments )
Link Flag
¿?
"Bye Apple...no mini for me"?

I don't think Apple is going to cry or change its mind because
you won't buy a Mac Mini...go buy a crap WinJunk PC instead.

Apple has the full right to protect their future products and
ideas. The idiot that is providing information to these sites
should be punished.
Posted by (27 comments )
Link Flag
Meh...
If you plug a leak, another will spring up. I'm suprised this leak issue wasn't handled internally. Giving away trade secrets and protecting products? How much money does Apple lose when consumers get information about future products? In my opinion it's better to have a small amount of information leaked in order to build up excitement for a new product. For example, the car industry. There's always details and spyshots of future vehicles. Does that hurt sells, I don't think so.
Posted by tahbasco (30 comments )
Reply Link Flag
little bit different!
There are two completely different scenarios under which rumor sites act. in the first you have a couple of knowledgeable experienced fans, who keep an eye closely on each move the company (in this case Apple) makes, each hiring ad, each improvement in the older design, each new deal, each new line of code published, and each technology adopted or developed. At the end they will decide that having all these information if we were in Apple designers, or business planners shoes we would have introduced a product like this.
On the other hand, in the second scenario, a spy would simply email you that I have seen the new product and it looks like this!!
Don't you think that you have even lost all the fun of the game! there is no beating the other sides idea involved! It's like betting on a hand that you have seen! not only it's not fair, and it's not fun, I don't even think that having that channel is anywhere like having a bright idea!
Posted by Shauheen (23 comments )
Link Flag
Meh...
If you plug a leak, another will spring up. I'm suprised this leak issue wasn't handled internally. Giving away trade secrets and protecting products? How much money does Apple lose when consumers get information about future products? In my opinion it's better to have a small amount of information leaked in order to build up excitement for a new product. For example, the car industry. There's always details and spyshots of future vehicles. Does that hurt sells, I don't think so.
Posted by tahbasco (30 comments )
Reply Link Flag
little bit different!
There are two completely different scenarios under which rumor sites act. in the first you have a couple of knowledgeable experienced fans, who keep an eye closely on each move the company (in this case Apple) makes, each hiring ad, each improvement in the older design, each new deal, each new line of code published, and each technology adopted or developed. At the end they will decide that having all these information if we were in Apple designers, or business planners shoes we would have introduced a product like this.
On the other hand, in the second scenario, a spy would simply email you that I have seen the new product and it looks like this!!
Don't you think that you have even lost all the fun of the game! there is no beating the other sides idea involved! It's like betting on a hand that you have seen! not only it's not fair, and it's not fun, I don't even think that having that channel is anywhere like having a bright idea!
Posted by Shauheen (23 comments )
Link Flag
trade secrets should be just that!!
i don't think companies have the same rights whatsoever as private individuals to have 'private information'. the trade secrets law stinks and should be repealed - by which i mean, if the co. wants info keep secret, they should keep it that way! (and Trust they're 'relavent' employees). if you're a meaningless pawn in a big corporation, why the hell shouldn't you spill whatever you hear). in our modern world of 'globalised' companies and trade (and for those of you who still don't understand-- that mean transnational companies and thus for all intents and purposes utterly outside of the so-called democratic process and outside of any meaningful regulations!! - its true!)..and that said, in this world, we have allowed our companies (yes, OUR companies - for which WE work, and WE buy products and services from) too much freedom already. They neither need, nor deserve this special trade secret law!!!
...
and no the rant is never over!...til we have the true worldwide freedom for all of a proper anarchist (no, not that kind! - look it up!!) society and loose but fair world governing council of some kind (with truely random and thus relatively uncorruptable biennial elections to it).
Posted by benmantle (6 comments )
Reply Link Flag
a crock of hogwash
You would like to have a world government which runs things by some 'fair' way, eh? Who would define what those fair laws are?

You think that humans would be any more fair with that, with no recourse to vote?

What a load that is. It is like Bertrand Russell said of K. Marx, an idealism.

Such a thing will be simply opposed.
Posted by (8 comments )
Link Flag
trade secrets should be just that!!
i don't think companies have the same rights whatsoever as private individuals to have 'private information'. the trade secrets law stinks and should be repealed - by which i mean, if the co. wants info keep secret, they should keep it that way! (and Trust they're 'relavent' employees). if you're a meaningless pawn in a big corporation, why the hell shouldn't you spill whatever you hear). in our modern world of 'globalised' companies and trade (and for those of you who still don't understand-- that mean transnational companies and thus for all intents and purposes utterly outside of the so-called democratic process and outside of any meaningful regulations!! - its true!)..and that said, in this world, we have allowed our companies (yes, OUR companies - for which WE work, and WE buy products and services from) too much freedom already. They neither need, nor deserve this special trade secret law!!!
...
and no the rant is never over!...til we have the true worldwide freedom for all of a proper anarchist (no, not that kind! - look it up!!) society and loose but fair world governing council of some kind (with truely random and thus relatively uncorruptable biennial elections to it).
Posted by benmantle (6 comments )
Reply Link Flag
a crock of hogwash
You would like to have a world government which runs things by some 'fair' way, eh? Who would define what those fair laws are?

You think that humans would be any more fair with that, with no recourse to vote?

What a load that is. It is like Bertrand Russell said of K. Marx, an idealism.

Such a thing will be simply opposed.
Posted by (8 comments )
Link Flag
Agreed, but..
I wish Apple would soon let it drop. They should be able to have trade secrets. There may also be some merit to the defence that the EFF has mounted that Apple should have further pursued things internally, or legally. That is the argument that the EFF attorney has raised, that Apple has not exhausted the means that they would have to find who has leaked what they have. They have the right to defend their goods, and to deal with employees. The thing is that Apple does benefit from news tidbits. They surely realise this, and so have just pursued the information rather than sue the sites themselves.

Apple has been for the little guy who views things differently, the independent minded. I hope they get things settled soon.

I think the judge made a fair ruling, but it would be interesting to see what the judge said about the merits of the EFF attorney that Apple has not exhausted their options.

This surely is not going to make me stop using or purchase of Apple goods, it is one of the pleasures of my life.
Posted by (8 comments )
Reply Link Flag
Agree but? Yes no? Prefer maybe...
Why is this a big deal? The little underdog gets bit back by a ..
underdog? To protect our great Apple?
See those ads to the right of this article? They (supposedly)
generate revenue for this site.
Thinksecret alone has 8 ads (blinking or otherwise, per page).
So now, we have a source that is generating income off
speculation and rumors. Literally feeding off Apple (gasp and
Bowlfelx ads). And a list of forum subscribers (that is
marketable).
Then we have some anon that is violating NDA to provide a
source revenue...regardless whether fact or not.
If "Nick Deplume" wishes the label as a journalist (check his last
10 years of tax filing and job description) then he should be
liable for factual reporting and not speculative undermining of a
corporation's profit for his own goal.
I'm sure the SEC wants to know if the source made any illegal
trades based on the facts of AAPL climbing just on those
rumors.
Personally, I've nothing against 'speculative' websites (aka rumor
mongers) as long as they predict this by observing trends and
other industry gossip. But to take credit from a source that
clearly violated policy (and other laws) and yell foul and shelter
behind the free speech advocate is justified by the courts.
Sure, its nice to see Apple zealots once again stand up for their
kin, but the truth hurts and ignorance is bliss.
Posted by Below Meigh (249 comments )
Link Flag
Agreed, but..
I wish Apple would soon let it drop. They should be able to have trade secrets. There may also be some merit to the defence that the EFF has mounted that Apple should have further pursued things internally, or legally. That is the argument that the EFF attorney has raised, that Apple has not exhausted the means that they would have to find who has leaked what they have. They have the right to defend their goods, and to deal with employees. The thing is that Apple does benefit from news tidbits. They surely realise this, and so have just pursued the information rather than sue the sites themselves.

Apple has been for the little guy who views things differently, the independent minded. I hope they get things settled soon.

I think the judge made a fair ruling, but it would be interesting to see what the judge said about the merits of the EFF attorney that Apple has not exhausted their options.

This surely is not going to make me stop using or purchase of Apple goods, it is one of the pleasures of my life.
Posted by (8 comments )
Reply Link Flag
Agree but? Yes no? Prefer maybe...
Why is this a big deal? The little underdog gets bit back by a ..
underdog? To protect our great Apple?
See those ads to the right of this article? They (supposedly)
generate revenue for this site.
Thinksecret alone has 8 ads (blinking or otherwise, per page).
So now, we have a source that is generating income off
speculation and rumors. Literally feeding off Apple (gasp and
Bowlfelx ads). And a list of forum subscribers (that is
marketable).
Then we have some anon that is violating NDA to provide a
source revenue...regardless whether fact or not.
If "Nick Deplume" wishes the label as a journalist (check his last
10 years of tax filing and job description) then he should be
liable for factual reporting and not speculative undermining of a
corporation's profit for his own goal.
I'm sure the SEC wants to know if the source made any illegal
trades based on the facts of AAPL climbing just on those
rumors.
Personally, I've nothing against 'speculative' websites (aka rumor
mongers) as long as they predict this by observing trends and
other industry gossip. But to take credit from a source that
clearly violated policy (and other laws) and yell foul and shelter
behind the free speech advocate is justified by the courts.
Sure, its nice to see Apple zealots once again stand up for their
kin, but the truth hurts and ignorance is bliss.
Posted by Below Meigh (249 comments )
Link Flag
Freedom of speech
If I start a magazine or a online magazine doesnt that mean I am a jounalist? Even if I do not have a degree in jounalism or work 3 jobs if I write articles for a news/ information site that would make me a journalist. I should still be protected by laws to protect the the first amendment and any ruling saying I am not a journalist should be deemed illeagal for breaking that law. Apple should be happy that they got weeks of FREE publicity, even of they didnt need it. Walk it off steve, you rich baby.
Posted by baggyguy1218 (155 comments )
Reply Link Flag
Freedom of speech
If I start a magazine or a online magazine doesnt that mean I am a jounalist? Even if I do not have a degree in jounalism or work 3 jobs if I write articles for a news/ information site that would make me a journalist. I should still be protected by laws to protect the the first amendment and any ruling saying I am not a journalist should be deemed illeagal for breaking that law. Apple should be happy that they got weeks of FREE publicity, even of they didnt need it. Walk it off steve, you rich baby.
Posted by baggyguy1218 (155 comments )
Reply Link Flag
Apple - Get your shorts unbunched...
Fire the SOB who leaked the word - fair enough. But it's all water
over the dam now. DOn't make a mountain out of a mole hill.
Drop the stupid suit and get management back under control.
There are too many far more significant issues to deal with.
Posted by Earl Benser (4310 comments )
Reply Link Flag
Apple - Get your shorts unbunched...
Fire the SOB who leaked the word - fair enough. But it's all water
over the dam now. DOn't make a mountain out of a mole hill.
Drop the stupid suit and get management back under control.
There are too many far more significant issues to deal with.
Posted by Earl Benser (4310 comments )
Reply Link Flag
ONE SHOULD MIND ONES OWNE BUSINESS
There is a fine line between the public and the publics business. Company business does not belong to the public until it is made public to the people by the company to be made public business. Working for a company does not mean one has the right to divulge company business.
Posted by David1059563 (2 comments )
Reply Link Flag
ONE SHOULD MIND ONES OWNE BUSINESS
There is a fine line between the public and the publics business. Company business does not belong to the public until it is made public to the people by the company to be made public business. Working for a company does not mean one has the right to divulge company business.
Posted by David1059563 (2 comments )
Reply Link Flag
Apple thinks they live on a hill?
All tech geared companies get their information leaked on the internet, sooner or later. It is inevitable. To grant them the ability to go after the individuals who can get such information will prevent journalism we come to expect. The internet always has, and always will be, the place to get bleeding edge information. Has microsoft, nvidia, ati, etc gone after this absurd ability that Apple has sought after? No. Why?

Ask yourself if you ever read about something before a comapny announced it. Want to give that up just so they can SUPPOSIVELY make more money? Didnt think so. Over rule this. NOW
Posted by xpose (32 comments )
Reply Link Flag
The judge was right
"Supposively" isn't a word. "Supposedly" is a word.
Anyway, the main point made by the judge was that an "interested public" isn't the same as "in the public interest". I suspect that as for Apple are concerned, if one or two folks decide not to buy their products (in a fit of pique?) because they are denied their daily dose of tittle tattle, they have little to worry about. Their main concern, rightly, is one of theft or industrial espionage - whatever you want to call it. It's very easy for empty heads in cloud cuckoo land, with nothing at stake and nothing better to do than gossip, to complain that Apple is somehow being unfair. Grow up everyone!
Posted by pvandck (12 comments )
Link Flag
Apple thinks they live on a hill?
All tech geared companies get their information leaked on the internet, sooner or later. It is inevitable. To grant them the ability to go after the individuals who can get such information will prevent journalism we come to expect. The internet always has, and always will be, the place to get bleeding edge information. Has microsoft, nvidia, ati, etc gone after this absurd ability that Apple has sought after? No. Why?

Ask yourself if you ever read about something before a comapny announced it. Want to give that up just so they can SUPPOSIVELY make more money? Didnt think so. Over rule this. NOW
Posted by xpose (32 comments )
Reply Link Flag
The judge was right
"Supposively" isn't a word. "Supposedly" is a word.
Anyway, the main point made by the judge was that an "interested public" isn't the same as "in the public interest". I suspect that as for Apple are concerned, if one or two folks decide not to buy their products (in a fit of pique?) because they are denied their daily dose of tittle tattle, they have little to worry about. Their main concern, rightly, is one of theft or industrial espionage - whatever you want to call it. It's very easy for empty heads in cloud cuckoo land, with nothing at stake and nothing better to do than gossip, to complain that Apple is somehow being unfair. Grow up everyone!
Posted by pvandck (12 comments )
Link Flag
My Opinion
Blogs aren't news stories. I would liken them to a diary or journal. Even if the blogger is a journalist that doesn't make his blog a news site.

I figure their are two parts to this story. First part is confidential information got out. Apple has the right to pursue who leeked the info and take proper action in doing so.

Second part has to do with blogs being considered news sites and bloggers being considered journalist. I have to agree with the judge here and say that blogs aren't news ergo not covered by laws that protect journalist sources.

Although I don't believe this is a case for Freedom of Speech, I do believe that bloggers are still protected by the First Amendment. The First Amendment still has boundries. Most notably is Slander and Liable.

To look at this in a more personal way. If I had a note in my home that contained personal information that I didn't want everyone to know and someone paid or coersed a person that would have access to it to get it for the sole purpose of putting it on the internet... You can bet I would do what Apple is doing.
Posted by System Tyrant (1453 comments )
Reply Link Flag
My Opinion
Blogs aren't news stories. I would liken them to a diary or journal. Even if the blogger is a journalist that doesn't make his blog a news site.

I figure their are two parts to this story. First part is confidential information got out. Apple has the right to pursue who leeked the info and take proper action in doing so.

Second part has to do with blogs being considered news sites and bloggers being considered journalist. I have to agree with the judge here and say that blogs aren't news ergo not covered by laws that protect journalist sources.

Although I don't believe this is a case for Freedom of Speech, I do believe that bloggers are still protected by the First Amendment. The First Amendment still has boundries. Most notably is Slander and Liable.

To look at this in a more personal way. If I had a note in my home that contained personal information that I didn't want everyone to know and someone paid or coersed a person that would have access to it to get it for the sole purpose of putting it on the internet... You can bet I would do what Apple is doing.
Posted by System Tyrant (1453 comments )
Reply Link Flag
This is NOT about WHO is a journalist!!!!! It's ABOUT journalism!!!
Everybody is obsessed with this notion of who is a journalist but the judge made it crystal clear:


"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."

This ruling could lead to making it illegal for journalists to write news based on their hard work in uncovering scoops about a company's product/service plans, or anything else that a company might be deem a trade secret. Journalists have been doing this for hundreds of years.

-Tom Foremski - SiliconValleyWatcher.com
Posted by foremski (9 comments )
Reply Link Flag
yeah....
if you're 'hard work' includes soliciting stolen information, all
bets are off - that is, unless your research leads to a story that
serves the greater good. Jeezus - will you people please chill???
It's good that we're all concerned about our Firs Amendment
Rights (dunno why half of you voted for Bush) - something this
case has no bearing on.
Posted by (54 comments )
Link Flag
This is NOT about WHO is a journalist!!!!! It's ABOUT journalism!!!
Everybody is obsessed with this notion of who is a journalist but the judge made it crystal clear:


"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."

This ruling could lead to making it illegal for journalists to write news based on their hard work in uncovering scoops about a company's product/service plans, or anything else that a company might be deem a trade secret. Journalists have been doing this for hundreds of years.

-Tom Foremski - SiliconValleyWatcher.com
Posted by foremski (9 comments )
Reply Link Flag
yeah....
if you're 'hard work' includes soliciting stolen information, all
bets are off - that is, unless your research leads to a story that
serves the greater good. Jeezus - will you people please chill???
It's good that we're all concerned about our Firs Amendment
Rights (dunno why half of you voted for Bush) - something this
case has no bearing on.
Posted by (54 comments )
Link Flag
a
a
Posted by (4 comments )
Reply Link Flag
a
a
Posted by (4 comments )
Reply Link Flag
 

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