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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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January 28, 2005

Why EFF Is Fighting Apple

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As a follow-up to our previous discussion in this space about Apple's subpoena requests to a number of Mac-centric news blogs, check out this post by Kurt Opsahl, the EFF lawyer working to protect the blog publishers:


As the courts have confirmed, what makes journalism journalism is not the format but the content. Where news is gathered for dissemination to the public, it is journalism -- regardless of whether it is printed on paper or distributed through the Internet.

[...]

Blogs gain in importance and readership by the content and currency of their news, not their affiliations with the media of old. Indeed, we've seen numerous cases where blogs break the news first, and traditional media follow. Bloggers hammered on the Trent Lott story until mainstream media was forced to pick it up again. Three amateur journalists at the Powerline.com blog were primarily responsible for discrediting the documents used in CBS's rush-to-air story on President George Bush's National Guard service. And the list goes on.

If Apple's subpoenas to Apple Insider, PowerPage and Think Secret are allowed to proceed and the Apple news sites EFF is representing are forced to disclose the confidences gained by their reporters, potential confidential sources will be deterred from providing information to the online media, and the public will lose a vital outlet for independent news, analysis, and commentary. We can't let that happen.

Comments (4) + TrackBacks (0) | Category: Speech


COMMENTS

1. Chidi O on January 29, 2005 3:31 AM writes...

Is freedom of speech limitless?

Are corporations always bad and individuals good?

Why do Non Disclosure Agreements exist?

Are rumour sites directly or indirectly involved in industrial espionage?

Do rumour sites provide news or online entertainment with news as a secondary bi-product?

In what category of journalism can Think Secret's open sollicitation for Apple Computer's trade secrets be placed?

What is the comparative relationship between the Trent Lott story, the George Bush's National Guard Duty story and Think Secret's premature revelation of Apple's product?

I think this case is infinitely more complex than a lot of people imagine.

Permalink to Comment

2. John Greenwald on January 29, 2005 11:33 AM writes...

What seems to be overlooked in all the rhetoric over Apple's alleged assault on free speech is that another right is in jeopardy here that no one seems willing to defend. Think Secret launched a direct assault on the Non Disclosure Agreement.

If Think Secret prevails in its legal efforts, NDLs will be dead. No company will be willing to enter into an agreement in which the other party can use the free speech loophole to violate the agreement.

If NDLs are destroyed, innovation will be hampered because companies will be forced to hold information more tightly and won't be able to collaborate with third parties without fear of losing trade secrets.

It seems to me that Think Secret and other bloggers are fully capable of doing their job without stepping over the NDL line. As far as I can tell, that is all Apple is asking.

I suspect the republic will remain standing if we have to wait a few extra weeks to know about Apple's new product releases.

Permalink to Comment

3. Bumper on January 29, 2005 1:27 PM writes...

I offer this response to Chidi O as an ultra right wing, Apple stockholder, who was lucky enough to purchase one of the first 60,000 macs and have never looked back. That said sometimes Apple’s legal department is so full of shit that all you can do is hand them a case of toilet paper and wait until they get back from the outhouse.

Chidi O on January 29, 2005 03:31 AM writes...

Is freedom of speech limitless?

Of course not, you can’t stand up in a crowded theater and yell “Fire” or print/say that so-and-so is a no good sob if he isn’t, and now that you can’t say you hate someone if they are members of a protected group.

Are corporations always bad and individuals good?

Corporations are legal definitions of groups of people for financial reasons. It is the people that make the corporation good or bad. That said there are some people who believe that all corporations are bad.

Why do Non Disclosure Agreements exist?

To keep the second party, who signed the the NDA, from telling others about whatever it is the first party is revealing to them. Note: there are times when a NDA is not legally binding, such as if the first party is committing a crime the second party is duty bound to “blow the whistle” lest they become part of the criminal activity.

Are rumour sites directly or indirectly involved in industrial espionage?

No more than Woodward and Bernstein were involved in political espionage.

Do rumour sites provide news or online entertainment with news as a secondary bi-product?

Beauty is in the eye of the beholder, I got great enjoyment out of the news that Bill Gates got a pie in the face.

In what category of journalism can Think Secret's open sollicitation for Apple Computer's trade secrets be placed?

Unless Nom de Plume held a gun to someone’s head or broke into their house/car/office to learn these tidbits, i.e., he broke a criminal law, this was simple news gathering. Apple has, on the other hand, a matter of civil law, i.e., they have a contract (NDA) with someone, a someone who they are trying to force a third party, Nom de Plume, who has no contract with, to reveal to them, Apple.

What is the comparative relationship between the Trent Lott story, the George Bush's National Guard Duty story and Think Secret's premature revelation of Apple's product?

Other than they were stories that were reported via various forms of news media - none. The answer you are apparently seeking to elicit is that the way these stories were slanted affected the way the were perceived by readers. Oh, and while the first was true, it was overblown, the second was apparently not true and lucky for Thicksecret, the third was true!

I think this case is infinitely more complex than a lot of people imagine.

Not really, unless Nom de Plume signed a NDA with Apple they have no, repeat NO, case against him. If Apple has a problem with someone who signed a NDA with them let them do their own damn industrial espionage!

Permalink to Comment

4. Rad Geek on January 30, 2005 4:17 PM writes...

Again, let's kill this one dead and stomp on it until we're sure:

"If Think Secret prevails in its legal efforts, NDLs will be dead. No company will be willing to enter into an agreement in which the other party can use the free speech loophole to violate the agreement."

Apple never entered into a Non-Disclosure Agreement with Think Secret. It entered into an NDA with unknown second parties who breached the agreement to leak a story to Think Secret. Apple has legally enforceable claims against those second parties if it can find out who they are. It has no claims whatever against Think Secret, which never made any agreement not to broadcast whatever information came into its grubby little hands and has not violated any terms that it ever agreed to.

Apple has no right to enforce the terms of a contract on people who never signed it. They are using this suit as an intimidation tactic to try to force Think Secret to disclose the second parties who leaked the information. Since they have no case, this is nothing more than using the force of the law as an implement of bullying. Thank goodness someone is standing up for Think Secret's right not to be victimized by frivolous legal intimidation.

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