That he is one hell of a talented guy is a statement that goes beyond contestation. But how then do you account for his company's bizarre decision to go to war with the Fourth Estate? That's the gist of an Apple Computer lawsuit that is bound to ignite a First Amendment donnybrook.
"Defining what is a 'journalist' has become more complicated as the variety of media has expanded," Judge James Kleinberg wrote in his 13-page decision. "But even if the movants are journalists, this is not the equivalent of a free pass. The journalist's privilege is not absolute."
Tricky area. Few would argue that there are limits to that privilege, but this decision opens a Pandora's box. The judge argued that nothing in his ruling was meant to stifle the free exchange of opinions and speculation. But then he went on to interpret California's Shield Law as affording only limited protection--a decision that can only hurt the ability of news gatherers to do their jobs.
My hunch is that every crack First Amendment attorney in the country will want a piece of this appeal. If this decision stands, they know this would be bad news in bells for a free press.
Apple contended this was a case of the misappropriation of "trade secrets" under California law. Kleinberg went along, but it was a phony argument from the get-go. The leaks hit the Internet a couple of weeks in advance of Apple's planned announcements. What's more, the information that triggered Apple's hissy fit was imprecise, and the biggest "news" leak had to do with price.
The real subtext is this: Apple is directed by a collection of control freaks who would have found themselves quite at home in the Nixon White House. The big difference being that reporters had the constitutional freedom to report on the Nixon White House.
Apple has been an infuriating company for me to cover over the last two decades or so. I adore its technology but can't stomach
So why turn this into a federal case--(well, state case -- but you get the point.) People who know the company say that "everything starts with Steve."
For good and for bad.
Jobs had already secured a place in the annals of tech by co-founding Apple. Then he defied the odds when he returned to Apple in late 1996 and saved the day. And if that were not enough, the guy went on to build Pixar into one of the hottest movie animation companies--all in his spare time.
Loyalists say he accomplished all this by being a demanding perfectionist. But he didn't compile a resume of achievement by being Mr. Nice Guy. Forget the fluff PR adorning the company's advertisements. Jobs knows how to play hardball with the best of them.
But now you have to ask whether paranoia has trumped good judgment. With today's ruling, Jobs is in danger of leaving a big black blot on an otherwise remarkable legacy.
Biography
Charles Cooper is CNET News.com's executive editor of commentary.
See more CNET content tagged:
Apple Computer, Steve Jobs, journalist, decision, First Amendment
This is not about journalist or non-journalist, despite efforts of the litigants to make it so. This is about getting apparently stolen (or misappropriated) information and use it without repercussions.
Congrats to this judge on getting it right.
asks the question did the judge get it right -- should this discussion move over there?
Where shall we discuss and extrapolate, argue and whine? Here or there? Should we whine anywhere?
what she knew because it would have been damaging to her to
not do otherwise. :-) well, guess that argument didn't, or could
not have worked for her.
exchange of opinions and speculation." Opinions and
speculation are not the subject of this case; the transcription
and "sale" of misappropriated (intellectual) property is. When
Apple sues someone for informed speculation (for example,
guessing at new products based on public knowledge of the
state of available technologies), then we'll have a First
Amendment issue.
You miss the point. Apple and other companies have the right to
protect their trade secrets. This does not make them in your
words...
"a collection of control freaks who would have found themselves
quite at home in the Nixon White House. "
The real story is who inside Apple is leaking the information?
And why are they given a free pass by the media?
No one has shown me that any damage was done to Apple. The stock is through the roof. No one has successfully copied and marketed an Apple product even with a real machine to examine.
Apple wants to punish some internal people. The suit against the websites is just a way to get at the internal people or they would be asking for damages.
The question is what kind of company environment has Apple created that makes a few key employees willing to spill the beans on new products.
If you haven't noticed it has been a very long time since Apple was listed as one of the top places to work. Apple's obsession with secrecy actually ends up costing the company potential enterprise customers who need to know product directions before they commit to a platform.
I agree with Charles that this is going to give Apple a black eye. I continue to love the products and shake my head at the company, and I worked there nearly twenty years.
For more of my thoughts http://ocracokewaves.blogspot.com/
al
personal attack on someone by revealing confidential
information to a blogger. Journalists and bloggers both must be
held accountable for the information they distribute. If someone
broke the law by revealing information, there is a public interest
in holding them accountable otherwise it would be impossible to
protect anyone's privacy.
and technology, as well as several computer magazines). I also
edited the NY Mac users' group newsletter for several years, so I
have been around the Apple block. And I just don't agree with
you at all.
The judge made a distinction between the "public interest" and
an "interested public". Knowing about a hazard to the common
health is a matter of public interest; knowing about Apple's
pricing schedule or the details of its marketing plans is not.
Furthermore, conflating journalistic reporting with the First
Amendment is simply mistaken. No one is stopping anyone from
expressing his opinions or beliefs. No judge has restrained these
web sites and blogs from publishing. But no one is entitled to
steal private property (including intellectual property) to do so.
And just like the freedom to say hateful things may result in
legal consequences, so might the publication of private, non-
public information.
If I were to announce that I was, say, gay, that's free speech. If I
announce that YOU are gay, that could be libel. Free speech
either way, but not freedom from consequence.
Like when Intel was working in secret on a X86-64 compatible CPU. That information was leaked but Intel kept denying it. Only near the end did they confirm they were working on such a CPU.
Other information, including the internal Microsoft Halloween documents describing their internal strategy against Open Source applications, or details on the SCO case would likely also not be out if this was pushed through to the limit.
Intel does not jump like this everytime someone posted pictures of "Intel Confidential" CPU dies for sale at Akihabara. You have to take this sort of thing with a stride. It comes with the territory and the damage, if there is one, is minimal.
Take all of that out and the only things left will be verbatim press releases and product reviews.
This stance by Apple seems to be nothing else but the wild ramblings of a control freak despot.
Not that it wasn't obvious.
They should put someone else on the Apple beat if he can't be
objective.
bashing Apple (or apparently Steve Jobs, not Apple?).
http://news.com.com/2061-12_3-5581354.html
Apple has the right to protect it's product information from
being leaked. Millions of dollars are at stake. That's not chump
change, even for a company with several Billion in cash in the
bank.
That was THE story!
No one could believe "a MAC could be AFFORDABLE".
That's the enticement for PC users who often state they would
buy a mac "if it cost less".
This isn't an article about the litigation but rather the implications.
While I agree with you what this case was technically about, I also agree with Charles in what it also enveloped which raises more important issues in my opinion. Should online publishers be offered some form of protection under the law as well as the people the people they publish about? Will the language used in the ruling cause possible problems for journalists regardless of medium? Should big companies put all their PR work at risk by making such a big deal over something probably not worth it?
In the eyes of many, Jobs went from the king of the "it" empire to being in line with those over at the RIAA that were suing 12 year olds for thousands of dollars using strong-arm tactics because they had shared some songs online. The bottom line is while they're both on the right side of the law, it's not worth the bad press, and someone like Jobs should know better.
I'd give further insight into his character that I have through personal channels, but now I'm scared he might sue me for the $8 I have to my name plus whatever I earn the rest of my life. ;)
net can become an "online publisher". Does that mean that every
one of us is now entitled to shield law protection? Does that
mean that everyone we quote is a confidential source?
2. Is there any journalistic distinction between a professionally
trained, edited and cross-checked publication and a teenager in
his mother's living room?
3. Apple's concern is almost certainly not to harass its fans: it is
probably to find out who in its employ is passing confidential,
trade-secret information to them, which is undoubtedly a
violation of an NDA or an employment contract, both of which
Apple has every right and reason to enforce.
4. Yes, this action will alienate some of Apple's fanatics (of
whom, by the way, I am one and have been for more than 20
years). But let's grow up and understand that Apple is a
company that spends millions to compete against hugely
powerful opponents for very slight market share, and it is
important for them to control the timing and impact of their
product releases. Most companies arrange exclusive press
coverage of important new products far in advance, and are hurt
when rumors and premature photos and details muddy those
announcements. Don't we all want Apple to thrive?
Reporting has always been a noble profession, last time I checked, and you'd think that Apple and their ardent 'fans' here would agree. Since when do we ditch the First Amendment because someone at Apple broke a confidentiality agreement a few weeks early?
Perhaps if Mr. Jobs gets his way, we can also expect governments to sue (or just jail) people for dissent or whistleblowing, too. Shall we just forget personal liberties, and judge right and wrong based on which person has more money if they disagree, or violate a newly-universal NDA standard for self-expression?
Think different, indeed. Perhaps Apple can simply clean their own backyard, and leave our basic freedoms alone.
protecting it's trade secrets. How is this a blot on Steve Job's
record? How many people out there are going to remember him
for this? A few journalists maybe? Please.
This is sort of like... John steals Steve's radio. When Steve steals
it back, John cries foul over Steve "walking all over his rights" for
stealing something from him. Ridicules.
Who cares about assumed "industry give-and-take"? Why should
Apple put up with that? They want their secrets protected under
the law, and they have every right to try and keep it that way.
Mr. Editor: Is CNET now the Judge & Jury in this case?
FREEDOM OF THE PRESS v. NON DISCLOSURE CONTRACT
Posted by: Llib Setag
Posted on: March 7, 2005, 12:36 PM PST
Story: Apple goes to the source
THAT is the real issue before the Courts.
Does the California Constitutional freedom of the press outway
the legal non disclosure contract signed by the Apple employees
who leaked proprietary secret information to the Internet BEFORE
that Apple information was released to the public by Apple?
If this was Microsoft/Intel/Sun/Adobe/IBM/Dell/HP,instead of
Apple,what would THEY be pursuiting legally?
What if an Microsoft employee (which also must sign a VERY long
non-disclosure contract) gave the source code for the upcoming
Longhorn OS to a technology rumor site and it was posted on
the Internet BEFORE Bill Gates issued the new OS to the public?
What would Citizen Gates & his Father / Attorney / Law Firm do?
Would CNET think they were behaving like Nixon?
To say ANY tech company, Apple or otherwise, is being NIXON
when they are executing their legal rights is just being biased.
Nixon was a criminal prosuiting criminal acts during Watergate
AND the President of USA. He knowingly directed criminal acts to
cover up prior criminal acts.
Deep Throat knew this & thought that the country should know
this too about their elected President.
Totally NOT this case. Apple is not being criminal by exercising
their legal rights & by protecting their intellectual property.
Apple employees who broke their legal non-disclosure contracts
did so knowingly & so did Think Secret, etc.
So you comparison to Nixon WAS grossly unfair and inacurate.
Not the same case by a long shot...
AND to compare the likes of Think Secret rumormongers to the
caliber of Woodward & Bernstein / Washington Post is a serious
insult to W&B/Washington Post & ALL respected professional
journalist - ESPECIALLY coming from a "CNET journalist".
Deep Throat was absolutely right in THAT case, but
knowingly breaching a legal non-diclosure contract /
committing a crime is not covered under Freedom of the press.
All Apple is attempting to do is enforce their legal right to
prosecute their disloyal employees who break the Apple Non-
Disclosure Contract by giving away trade secrets.
Why should they continue to be employed by Apple if they broke
their legal non-disclosure contract?
Freedom of speech does not mean you can shout FIRE in a movie
theatre and start a stampede...THAT'S against the law. All
Constitution freedoms have caveats. America is a check &
balance system of rights & laws.
Is CNET the same as Internet Rumor Sites or are they more like
CNN?
>> "Freedom of speech does not mean you can shout FIRE in a movie theatre and start a stampede...THAT'S against the law. All Constitution freedoms have caveats. America is a check & balance system of rights & laws."
For your edification, a person cannot 'FALSELY' "...shout FIRE in a movie theatre and start a stampede". But, they most certainly CAN 'shout fire in a crowded theatre' if they honestly believe that there is one. The ORIGINAL quote referred to how 'Freedom of Speech' does not protect 'INTENTIONAL-LYING' (and, by the way, this statement was made long before "...movies..." even existed).
You know, you really should know WHAT you are talking about, and understand the FACTS, before you begin to SPEW what amounts to an assault against the fundamental-rights of American Citizens (because, ...in the end, ...most antagonists have found out that, ...WE REALLY HATE THAT).
>> Does the California Constitutional freedom of the press outway [sic] the legal non disclosure contract signed by the Apple employees who leaked proprietary secret information to the Internet BEFORE that Apple information was released to the public by Apple?"
YES, as a matter of fact, 'Constitutional Rights' DO take precedence (legally, morally, and ethically) over 'contractual agreements'. That is BOTH 'the law', and, 'COMMON-SENSE'.
>> "Apple is not being criminal by exercising their legal rights & by protecting their intellectual property."
Actually, ...attempting to MISUSE, so-called, "...intellectual property" laws, as an EXCUSE to over-ride the 'BASIC RIGHTS' of citizens, ...DOES make them a 'CRIMINAL'.
Furthermore, a 'company' merely WISHING something to be a 'secret' does NOT make that information a "...trade secret". And, NO ONE has demonstrated that "Apple Computer" has ACTUALLY been 'injured', in any way, by the "disclosure" (other then the negative public-reaction to Apple's OWN ACTIONS).
And, in the final analysis, the REAL POINT of all of this REALLY is the more fundamental-issue,
...Should the 'whims' of 'big-business' always OUT-WEIGH the, painfully-discovered, FUNDAMENTAL-NEEDS of a society as a whole?
Based upon history, I don't think they should.
So - why is it so hard for so many to see what this legal action could do, if applied to other cases in the future? Setting a scary precedent for free online speech for the sake of something this harmless (let's face it - did Apple lose a penny over this?) is like using a bazooka to kill a fly, never mind what it did to the house next door after it left your wall.
Innovation won't mean much if we can't even speak to each other freely, and I wonder why so many people are willing to kiss their Internet privacy goodbye to support a moot point. There are higher causes in this world than a product release schedule; if we forget that, we'll wish we hadn't in a scary new world, soon.
This action on Apple's part is similar to 'a printer company' trying to use 'copyright' to 'legally' force consumers to use only "their Brand" of ink-cartridges -even though, it is clearly a violation of consumer-rights,
...Or, a 'garage-door' company claiming 'IP' as a way to 'legally prevent' "third-party after-market" garage-door openers -even though, the laws that they used were NEVER intended for that purpose,
...Or, 'media-companies' trying to 'legally control' where, and when, consumers can use the products which they have 'legitimately purchased' -even though, NO LAWS grant 'manufacturers' that 'right',
...Or, a 'security-software' company invoking 'Trade Secrets' as a way to try to 'legally prevent' valid research into the effectiveness of their products -even though, this is CLEARLY detrimental to consumer-interests.
All of these examples have been, or currently are, happening.
And, in my opinion, claims of "Intellectual Property" has become a 'dumping-ground' for large businesses to exact, and exert, all manner of dangerous, and unfair practices. And, my being UPSET has far more to do with the rapid, and obvious, erosion of MY OWN 'RIGHTS' as a citizen, and a consumer, than any theoretical, or philosophical, viewpoint.
- Apple is no saint; journalism is no saint
- by tennapel March 14, 2005 4:29 AM PST
- First of all, I think that the court case is filed because they cannot get their hands on the leaks in an internal investigation, so they try to get the names another way. You cannot blame them for trying.
- Like this Reply to this comment
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Showing 1 of 2 pages (67 Comments)Seeing people jump the "Free Speech" bandwagon makes me having a wry smile. If journalism seriously think that having to open up sources that leaked company secrets is "Free speech control", while on the other hand their fellow journalists happily copy and paste White House propaganda on foreign policy without blinking an eye, you must evaluate your own beliefs and motives.
I don't read that many stories about Guantanamo Bay on US websites as much as I read about this Apple court case; I wonder which one is more important to the inner clique of journalists.