April 20, 2006 11:34 AM PDT
Apple argues for blogger records
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Judge Franklin Elia said Apple's internal investigation was essentially saying to its employees, "If you disclosed the information, you'll be fired. Did you disclose the information?"
Rushing went so far as to mock a brief sympathetic to Apple filed by the biotechnology company Genentech, which argued that merely questioning employees represented too much of a burden to Apple.
Elia also hinted that the appeals court would revisit the lower court's order. "If we do nothing, the trial court's order goes into effect and there could be some damage," said Elia.
Apple attorney Riley said that the same rules should apply to the New York Times and the San Jose Mercury News as to bloggers, saying that trade secret claims trump any reporter's ability to protect his or her sources, based on legal precedents.
After recess, some of the sharpest questions from the judges were directed to Apple. "All you want...is the name of the snitch," Elia said. "That's what this case is about."
Riley disagreed, arguing that they were looking to uncover someone who committed a crime. Elia responded, "You shouldn't hire people you think are going to be (a) criminal."
Following the presentations of both sides, the court took the matter under advisement. "We enjoyed this," Rushing said. "The matter will stand submitted."
It's not clear when the judges will render their decision, but under California state law they have 90 days to make their ruling.
After the hearing, EFF lawyer Kurt Opsahl said, "It sounds like the court understood the important issues at stake here."
"The California Court of Appeals has a long history of protecting freedom of the press," Opsahl said. An Apple representative declined to comment.
The subpoena to Powerpage.org, the e-mail provider to one of the Mac enthusiast sites, is on hold during the appeal. PowerPage's creator, Jason O'Grady, has begun writing a blog for ZDNet, which is owned by CNET Networks, the publisher of News.com.
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