April 20, 2006 4:00 AM PDT

Apple pushes to unmask product leaker

A California court in San Jose on Thursday is scheduled to hear a case brought by Apple Computer that eventually could answer an unsettled legal question: Should online journalists receive the same rights as traditional reporters?

Apple claims they should not. Its lawyers say in court documents that Web scribes are not "legitimate members of the press" when they reveal details about forthcoming products that the company would prefer to keep confidential.

That argument has drawn stiff opposition from bloggers and traditional journalists. But it did seem to be sufficient to convince Santa Clara County Superior Court Judge James P. Kleinberg, who ruled in March 2005 that Apple's attempt to subpoena the electronic records of an Apple news site could proceed.

"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 Macintosh news sites) are doing nothing more than feeding the public's insatiable desire for information," Kleinberg wrote at the time.

The Electronic Frontier Foundation, which is representing the Apple news site PowerPage.org, is hoping the appeals court will pull the plug on a subpoena that could yield details about who leaked information about a FireWire audio interface for GarageBand that has been codenamed "Asteroid." The subpoena is on hold during the appeal.

"The California Court of Appeals has a long history of protecting freedom of the press," Kurt Opsahl, an EFF staff attorney who is arguing the case, said on Wednesday. "We're hopeful they'll continue to do so."

Listen up

News.com's Ina Fried examines how the dispute's outcome might affect Apple and the rights of bloggers.

Download MP3 (1.6MB)

In the lawsuit, filed in late 2004, Apple is not suing the Mac news sites directly, but instead has focused on still-unnamed "John Doe" defendants. The subpoena has been sent to Nfox.com, PowerPage's e-mail provider, which says it will comply if legally permitted.

Even though the AppleInsider site also published information about the Asteroid device, it operated its own e-mail service and would have been able to raise a stronger First Amendment claim if it had been sent a subpoena. (In a separate case, Apple directly sued another enthusiast site, Think Secret, alleging that it infringed on Apple's trade secret in soliciting inside information.)

The types of articles about Apple that Jason O'Grady, PowerPage.org's creator, posts every few days don't seem that different from those that many news organizations produce. They include reports on Apple's patent disputes, benchmarks of software performance, reviews of software and news about upcoming products that have not officially been announced.

Being the first to publish news about forthcoming products--as long as the information is accurate--is generally regarded by journalists as a coup. CNET News.com was the first to report, for instance, that Apple was switching from PowerPC processors to Intel chips last year. (Full disclosure: O'Grady has begun writing a blog for ZDNet, also owned by CNET.)

CONTINUED: Free speech vs. trade secrets…
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33 comments

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Like we didn't know it was coming...?
This is typical Apple, everything must be confidential and if no
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 ;-)
Posted by Kevin Walker (6 comments )
Reply Link Flag
Like we didn't know it was coming...?
This is typical Apple, everything must be confidential and if no
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...
Posted by Kevin Walker (6 comments )
Reply Link Flag
Right. Wrong.
If what you say is true,
"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.
Posted by ronjay (109 comments )
Link Flag
Un-American
So if

"...(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.
Posted by TV James (680 comments )
Reply Link Flag
Apple and the Democrats
Un-American actions from Apple and Nintendo (not mentioned)
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.)
Posted by fakespam (239 comments )
Reply Link Flag
Apple and the republicans
Apple wants to keep everything in cloak and dagger secrecy for fear that someone will steal its patented or yet to be patened product which "Asteriod" isn't yet.

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.
Posted by msims (66 comments )
Link Flag
How the hell did you connect....
Seriously? How did you managed to connect, the iPod, to the Democratic Party, Muslims, Social Security, 90's Dot-com's, taxes and the Federal Reserve, President Carter, Illegal Immigrants, the Shah of Iran and Nintendo? That's one hell of a stretch. The only thing that made sense in your statement was "Un-American and Apple".

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.
Posted by c.Lake (42 comments )
Link Flag
At Least One Child Got Left Behind
Yo' falsespam,

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".
Posted by BloggerRadio (23 comments )
Link Flag
Ah politics....
One of the easiest ways to pick a fight, start talking about politics or religion. People get very heated very quickly.

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.
Posted by drfrost (467 comments )
Link Flag
Kleinberg
Apple craves attention and lives by the saying "theirs no such thing as bad press". For the judge to make the statement you reported makes him sound like a moroon in S.Jobs pay.
Posted by mpotter28 (130 comments )
Reply Link Flag
Dunno what he's smokin...
""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."

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.
Posted by Methuss (101 comments )
Reply Link Flag
Same thing you are...
Property rights always trump Constitutional rights when they
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.
Posted by No_Man (77 comments )
Link Flag
Theft is not Free Speach.
There have always been limits on what you can "say". We have laws against defamation of character, that is, publishing knowingly false information with the intent to damage another's reputation. If someone sells the secrets to making the latest military weapon to an enemy, that's called treason. So if someone sells (or even gives away) secrets of their employer, who has shared these projects in confidence and trust, they have violated their employment agreement and possibly caused financial harm to that company. That is not "free speech" but theft. As no_man pointed, Theft cannot be disguised as Free Speech. Theft is not a Constitutional Right.
Posted by GTOfan (33 comments )
Link Flag
Message has been deleted.
Posted by c.Lake (42 comments )
Reply Link Flag
Every company..
..suffers from leaks about their product. Although I understand the need to take action, I don't agree with going after the Internet Media.

This is lame. Apple, quit yer *******'.
Posted by Sil3nt71 (51 comments )
Link Flag
Not Buying Apple
Since I use "insatiable desire for information" to make purchasing decissions, it is in my best interest, as a consumer, to know as much as possible about new and up coming products, even if it isn't always in the manufacturers' interest.

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.
Posted by sreynard (54 comments )
Reply Link Flag
Voting with your pocket book...
The consumer is the judge, jury and executioneer when it comes to corporate American and Apple is certainly not going to get any good press from this litigation. Americans value their freedom and at least on the outside this appears to be an attack on the first amendment. But Apple has tread this ground before so we really should be surprised. Remember when GNU refused to port software for the Apple platforms?

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.)
Posted by drfrost (467 comments )
Link Flag
So you wouldn't mind if ...
Since you use "insatiable desire for information" for your
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.
Posted by VidPro (60 comments )
Link Flag
Moral to one story herein contained.....
... whatever side of the fence you favor, the guys on the other side
have really screwed things up.
Posted by Earl Benser (4310 comments )
Reply Link Flag
Apple = Control Freaks
Apple are control freaks, who like things closed, proprietary, and secret.

It won't happen, but it would be fun if bloggers and the mainstream media responded by dropping coverage of Apple.
Posted by john55440 (1020 comments )
Reply Link Flag
press profit vs monetary profit
Problem here is defining the difference between "profit" when it comes to a journalist news lead versus selling a companies trade secret. Both can do detrimental damage to competitive edge, but whereas one is malicious, the other is, well, news.
<a class="jive-link-external" href="http://www.iwantmyess.com/?p=57" target="_newWindow">http://www.iwantmyess.com/?p=57</a>
Posted by 209979377489953107664053243186 (71 comments )
Reply Link Flag
Bloggers are not journalists
Much as I hate to agree with corporate Apple, bloggers aren't journalists. Never have, never are, never will be. Blogs are nothing more than glorified message boards. Bloggers have no journalistic scruples, no code of ethics, no impartiality. They aren't journalists. Simple as that.
Posted by ileftmyheart99 (2 comments )
Reply Link Flag
Bloggers are not journalists
Much as I hate to agree with corporate Apple, bloggers aren't journalists. Never have, never are, never will be. Blogs are nothing more than glorified message boards. Bloggers have no journalistic scruples, no code of ethics, no impartiality. They aren't journalists. Simple as that.
Posted by ileftmyheart99 (2 comments )
Reply Link Flag
should be on source
I am late to this discussion by think I should offer an insider's
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.
Posted by J.G. (837 comments )
Reply Link Flag
Focus should be on information
I am late to this discussion by think I should offer an insider's
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.
Posted by J.G. (837 comments )
Reply Link Flag
FOP v. NDC
THREE FUNDAMENTAL ISSUES ARE AT STAKE HERE:

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 &#38; 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 &#38; 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 &#38; 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 &#38; by protecting their intellectual property.
Apple employees who broke their legal non-disclosure contracts
did so knowingly &#38; 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 &#38; Bernstein / Washington Post is a serious
insult to W&#38;B/Washington Post &#38; 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 &#38;
balance system.

Is CNET the same as Internet Rumor Sites or are they more like
CNN?
Posted by Llib Setag (951 comments )
Reply Link Flag
 

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