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A coalition of bloggers, law professors and journalist-rights groups has filed a legal brief (click for PDF) siding with the EFF, saying that "the medium though which reporters communicate is simply unrelated to the Constitutional mandate of the protecting the free flow of information and the freedom of the press."
For purposes of this appeal, Apple has agreed that O'Grady can be viewed as a reporter. But the coalition wants the California appeals court to go even farther and say that bloggers and other online writers "may invoke the protection of the newsgatherer's privilege" of protecting their sources when they act as journalists.
The brief's signers include The First Amendment Project, Reporters Without Borders, and Gawker Media. The Associated Press, Hearst Corp., the Los Angeles Times and other major media companies filed their own brief (Click for PDF) arguing that the Mac sites should not be forced to divulge their confidential sources.
Free speech vs. trade secrets
To Apple and its allies, though, the case is about something much more straightforward: how to protect intellectual property rights in the age of the Internet.
"The First Amendment cannot trump a property right," said Ian Ballon, an intellectual property attorney in the East Palo Alto, Calif., office of Greenberg Traurig.
As long as the courts agree that Apple is protecting a legitimate trade secret, Ballon said, intellectual property should trump free speech rights. "The law is certainly on Apple's side on this issue," he said.
A slew of other large software and hardware companies have lined up behind Apple. Intel and the Business Software Alliance (which counts Microsoft as a prominent member, along with Adobe, Apple and Symantec) said in their own filing that trade secret laws "are vital to the health of California's high technology businesses" and that there is no public interest in having trade secrets "stolen and plastered on the Internet."
The Information Technology Industry Council took a similar position, saying that EFF has "greatly exaggerated" the threat that the subpoena poses to "legitimate First Amendment interests." It involves no wrongdoing by government officials, or muckraking, or corporate waste, but simple disclosure of trade secrets, the council says.
Intel is scheduled to participate in Thursday's oral arguments, along with the actual litigants, an attorney for mainstream media organizations, and the Bear Flag League--a group of conservative bloggers that is siding with PowerPage.
CNET News.com's Ina Fried contributed to this report.
See more CNET content tagged:
subpoena, Jason O'Grady, Apple Computer, journalist, IBM PowerPC
one plays by the rules we change them to suit us....
Whats next Steve? Your own Internet? I thought the internet was
about freedom, expression and above all else sharing....
Oh well, thank god for x86 and apple developer seeds ;-)
one plays by the rules we change them. I thought the internet
was about freedom, expression and above all else sharing?
Rant out of the way...
It was obvious Apple was going to release a Firewire interface at
some point. Almost as predictable as: 'We have maintained a
x86 build of OS X through out the whole development cycle' So
apple are going to release it for pc or they might use x86
hardware 'We are proud to announce the release of the Mac Book
Pro' - I bet no one could of predicted what happened next
though...
Oh well, thank god for x86 and apple developer seeds ;-) If
Apple play this card well, being an ace and all ;-) UNIX will
become the desktop OS of choice not Linux.... Hey we might
even get an OS X build that boots on the Xbox360...
"It was obvious Apple was going to release a Firewire interface at
some point.", why then is the owner of the site working so hard
to protect a "source". If this was so obvious, the editors/owners
of the site would never have needed a source. Not to mention, if
it were not such a big deal, the site's owners could and would
have long since revealed their source. They are not even being
sued, Apple simply wants to know who the Benedict Arnold or
Judas might be.
And as to your statement about the internet being about
freedom, expression, and sharing, well, you can freely express
and share as long as you do not impinge upon the rights of
others.
"...(the Macintosh news sites) are doing nothing more than feeding the public's insatiable desire for information," Kleinberg wrote at the time."
Then we are demanding and they are supplying. Pure capitalism.
Boo hoo for Apple if they can't figure out how to work the leaks to their advantage.
should be noted, as they only give to the Democratic Party, and
that's the party that forced Social Security on us, taxes on
everything towards the little guy, introduced the Federal
Reserve, angered the Muslims under Carter's support for the
Shah of Iran in 1979, falsely inflated the '9-s dot-com economy,
passed a bill to allow illegal aliens to enter, and sues the hell out
of anybody who disagrees with them.
Censorship from a company who gives millions a year to those
concepts? Not a surprise.
(Go ahead, get political in responses.)
Excuse me but The Democratic party brought the U.S.s a strong economy during the 90's, huge surplusses, low unemployment of 3.4%, low welfare rolls. That was much better than this idiotic Bush/RepulbiC**P admin that's spending over $20 billion per month in Iraq, wasted $1.38 trillion in tax cuts for the people who need it the least. This is the most corrupt, incompetent and greedy admin I've ever seen in years. Yes they are the ones who have gotten the muslims angry at the U.S. as well as the rest of the world.
Fakespam, you sound as typical as a extreme-RightWingnut republican who's been brainwashed by KG.
There's nothing to argue about. At this moment in time, you have to right to vote for any unqualified, childish, completely embarrassing , moron who runs for Public Office. Clearly you're not alone -- or Bush wouldn't be President (I use the term loosely).
I wouldn't call you a "Republican Nutter". In your case, would remove the word "Republican" all together.
You need to turn off Lush Bimbaugh and Sean Insanity and catch a clue. If you don't like Social Security, which has run successfully for 70-years, tell your GrandMa to stop cashing the checks and send 'em back to the Gov't and don't you dare ever accept one yourself.
Republican'ts have had a majority in every branch of gov't for years now, and look where it's landed us, and the rest of the world:
Largest expansion of the Federal Gov't in the history of the planet. Largest federal budget deficit in the history of the planet, gigantic trade deficit, sold America to Communist China and climbed in bed with the oppressive Saudi dictators who sent 9 of the 15 hijackers on 9/11. Can't find the ONE key culprit responsible for 9/11 (bin Laden). Screwed-up every train-wreck they put their hands on (Katrina), lost or stole at least $9-billion dollars of taxpayer dollars destined for Iraq reconstruction, nearly bankrupt U.S. State gov'ts, is so scared of its own shadow has illegally spied on all Americans, tossing the U.S. Constitution aside, created a gigantic tax burden for all American generations to follow except the Paris Hilton types.
Clinton inherited Bush-1's deficit, turned it into a surplus that he left to Bush-2 who promptly squandered it. Bush-2 has not made good on a single one of his campaign promises. Ddin't fund "No Child Left Behind" the way he had promised, Didn't fund his "Faithed Based Initiatives" the way he promised, invaded Iraq based on more of his pathological lies.
Ya wanna talk about the ties between corporations, their executives, and which political party receives the most dollars from who? Gimme a break, if you follow the money trail from THOSE contributions you'll more likely than not to end up at some Federal prison cell, on an ever increasing rate these days.
The entire, traditional Republican't platform has been basterdized by the Bush administration: Fiscal Conservatism? Trashed. Smaller, less intrusive government? Trashed. The U.S. Constitution? Your boy said it's just a piece of paper ... which means he's just a piece of garbage. "Mission Accomplished" & "Bring It On".
Another tactic is to decide which side of the fence they are on and call the last president from their party a maggot, liar, cheat, adulterer (admitted to in at least one case), etc. That can really get the conversation going. Personally I try to refrain from name calling. Simply stating the facts is more useful, less inflamatory, and more conducive to actually learing something. Plus, it just seems disrespectful to call a President names. Even if they committed disgraceful acts (such as adultery, and I'm not picking on Clinton here) they're still the President of the United States, still elected by a majority of the people. At least show respect for the office.
As far as the statements of the post I'm responding to, I don't think you're accurate about the democrats trying to tax the little guy. While they certainly have a reputation for taxing and spending, they tend to enact more programs for the poor and needy than the republicans do. One of the things that scares me about the republican party is I think they would abandon the poor if we let them. One of the things that scares me about the democratics is that they would go back to 90% tax brackets for the rich if we let them (and no, I'm not rich... I'm just not a socialist who thinks everyone should earn the same salary).
As a whole I'm disgusted with both parties. A congress that refuses to pass compaign reform is a congress that is in bed with special interest groups. It's inexcusable and an ongoing testament to the corruption of our political system. In any other area of business in this country this practice would immediately be seen as a conflict of interest and stopped. As it is, currently, if you want to be represented in congress you better have deep pockets.
There you have it. My political comments in reply to your request.
I have no idea what he's tokin on but he needs a refresher in basical Constitutional law. The Constitution and it's amendments are the ultimate law of the land. NOTHING trumps the Constitution and that is very firmly laid down in Supreme Court rulings. Any law passed that conflicts is declared "unconstitutional" and thrown down.
So where does this moron get the idea that an IP right trumps the 1st amendment to the Constitution. He needs his bar license revoked and a remidial course in law school.
come into direct conflict. This was firmly established in the Clear
and Present Danger Test develop by Supreme Court Justice
Holmes during World War I. There it was ruled that the free
speech of an individual or group could persist so long as it did
not pose a clear and present danger to the life or property of
another individual or group. When it posed such a danger, the
government had the authority and responsibilty to stop it.
There are two common hypothetical examples of this test being
applied: 1) A man runs into a crowded movie theater yelling,
"FIRE! FIRE!" when there actually isn't one. This evokes a panic in
which people are injured or killed. The man's speech is not
protected by the first amendment and he can be held culpable in
some way (either directly or indirectly) to the deaths of the
people. 2) A radio talk show host tells his audience, "This
politician is totally corrupt, and I ask all of my listeners to burn
down his house and destroy his offices." The speech of the host
is not protected and he can forcibly removed from the radio
show and held culpable for the damage that occurs.
This is lame. Apple, quit yer *******'.
Apple's move here is stupid, not only because it attacks the very press that will report on the attack, and because it looks like a direct corporate attack on the first amendment, but also because it attacks the interests of those consumers most likely to purchase their products. It doesn't help their case to have Microsoft championing their cause.
Apple can try to aggressively squash my "insatiable desire for information" about their products, but then, I probably just won't be buying their products.
Apple's managment team seems to be lacking in good judgement in my opinion. At least their software engineers are top notch. (They have some decent hardware too, though pricey, but it's the software that makes me drool.)
purchasing decisions as a valid justification for someone to steal
trade secrets, I bet you also would find it acceptable if someone
stole your banking and credit card information since there are
crooks out there with "insatiable desire for information" they can
use for their own purchasing decisions, using your money of
course.
have really screwed things up.
It won't happen, but it would be fun if bloggers and the mainstream media responded by dropping coverage of Apple.
http://www.iwantmyess.com/?p=57
opinion, having worked in both media and law. The comment I
think sums the issues up most accurately is:
"As long as the courts agree that Apple is protecting a legitimate
trade secret, Ballon said, intellectual property should trump free
speech rights. "The law is certainly on Apple's side on this issue,"
he said."
I would add that Apple has engaged in good lawyering by focus
on the source. Bloggers are not journalists and don't deserve
the protections of real reporters. But, I don't believe that issue
even needs to be reached. The nature of the information
involved, trade secrets, is what is key.
opinion, having worked in both media and law. The comment I
think sums the issues up most accurately is:
"As long as the courts agree that Apple is protecting a legitimate
trade secret, Ballon said, intellectual property should trump free
speech rights. "The law is certainly on Apple's side on this issue,"
he said."
I would add that Apple has engaged in good lawyering by
focusibg on the information. Bloggers are not journalists and
don't deserve the protections of real reporters. But, I don't
believe that issue even needs to be reached. The nature of the
information involved, trade secrets, is what is key. The
protections afforded the journalists address information on a
continuum. The highest degree of protection is offered political
speech because it is important to maintaining democracy. The
least is offered to obscenity. Trade secrets are excluded from
these protections, rightly, in my opinion. This is really a matter
of economics, not freedom of speech.
- FOP v. NDC
- by Llib Setag April 23, 2006 10:11 PM PDT
- THREE FUNDAMENTAL ISSUES ARE AT STAKE HERE:
- Like this Reply to this comment
-
(33 Comments)1. Freedom of the Press v. Legally binding non-disclosure
employee contracts.
2. Free Speech v. Trade Secret Intellectual Property.
3. Public Internet Bloggers / Rumormongers v. Legitimate
Professional Journalist of the Press. (equal? same protection
under Constitution?)
Previous response that bears repeating...
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. C|NET
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
MS-OS to a technology rumor site and it was posted on the
Internet BEFORE Bill Gates issued the new Vista 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 falsely 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.
Is CNET the same as Internet Rumor Sites or are they more like
CNN?