July 12, 2006 5:30 PM PDT

Apple abandons effort to unmask leaker

Apple Computer has abandoned a high-profile legal effort to unmask whoever leaked details about a still-unreleased music accessory.

The company's deadline to continue a legal battle to find out who leaked the information to independent online journalists has passed, and Apple acknowledged in a brief court filing this week that it will not take its fight to the California Supreme Court.

On May 26, a state appeals court rejected Apple's attempt to send a subpoena to obtain records and archived e-mail from Jason O'Grady, creator of PowerPage.org, and Kasper Jade, the pseudonymous publisher and editor-in-chief of AppleInsider.

The three-judge panel rejected Apple's arguments that the independent reporters were not true journalists. "We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalism,'" the court said, ruling that California's journalist shield law would protect the Web reporters.

The case, filed in the superior court of Santa Clara County, drew national attention not only because it involved unreleased products--but also because it was one of the first to set the rules of how the rights of uncredentialed online journalists should be balanced against the rights of trade secret holders.

By not appealing its loss, though, Apple has set a legal precedent that could embolden other journalists (and perhaps other leakers) in the future.

Kurt Opsahl, a staff attorney at the Electronic Frontier Foundation, a digital rights group in San Francisco that is defending the Web publishers, said this decision could prove influential.

"This issue is likely to come up in other jurisdictions," Opsahl said.

One source close to Apple did say that the company is not precluded from continuing its lawsuit before Santa Clara County Superior Court Judge James Kleinberg.

Apple could, for instance, attempt a more aggressive internal investigation. Court documents show the company's investigators interviewed 29 employees who had access to a key confidential document--but Apple did not examine them under oath or examine their computers.

That's one reason, the appeals court said, to grant the online journalists the protective order they requested. "Apple has failed to establish that it adequately pursued other possible means to identify the source of the information in question," the judges said.

EFF's Opsahl said that while the case may continue, the decision reiterates that a company "just can't take a shortcut through a journalist" to identify a leaker.

A case management document (Click for PDF), filed Monday by Apple attorneys George Riley and David Eberhart from the law firm of O'Melveny & Myers, confirmed that their client has chosen not to appeal the May 26 decision. It also said that the ruling "has delayed Apple's ability to name the proper (John Doe) defendants."

But Apple did request a five-day jury trial; also, a conference before Judge Kleinberg is scheduled for July 25.

If the subpoena had not been rejected, it could have yielded details about who leaked information about a FireWire audio interface for GarageBand that has been codenamed "Asteroid."

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