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April 12, 2005

News Organizations Speak Out in Apple Case

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Posted by Alan Wexelblat

Hear that whistling sound? That's the sound of heavy artillery arcing overhead. Apple's getting pounded. Hard on the heels of amici from individual journalists, some big names of journalism are laying down some covering fire arguing that the journalists need to be able to keep sources confidential.

Talk about an "A list": the Tribune Co.'s Los Angeles Times, Hearst Newspapers' San Francisco Chronicle, Knight Ridder Inc.'s San Jose Mercury News, The Copley Press Inc.'s San Diego Union-Tribune, Freedom Communications Inc.'s Orange County Register, and The McClatchy Co.'s Bee newspapers in Sacramento, Fresno and Modesto. Oh and the Associated Press.

This is quickly spiraling way out of control. Apple should cut and run as gracefully as possible. This is a company that lives - and can die - on the buzz it receives in the public zeitgeist. There is such a thing as bad publicity, guys, and this is it.

Comments (14) + TrackBacks (0) | Category: Speech


1. Donna Wentworth on April 12, 2005 4:57 PM writes...

Actually, the news organizations filed first; the press is just catching up :)

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2. Al on April 12, 2005 6:53 PM writes...

There is also such a thing as being on the right side of the argument.

You can't protect your sources if the release of a trade secret is not in the 'public interest' but only of interest to the public.

It doesn't matter if you are a real 'Journalist' or not.

The legal departments of any of these news organizations doing the complaining would not have allowed this particular piece of insider information to be published. It is clearly in violation of California's trade secrets law.

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3. Brad Hutchings on April 12, 2005 7:05 PM writes...

Expanding on Al's point... The brief from Volokh, et al doesn't even acknowledge Apple's contention about trade secrets! That amazes me. In making any kind of point, it is always wise to acknowledge that your opponent has some opposite point of view that might be reasonable... In fact, Alan's seems to be that this is turning into bad buzz for Apple. But his point is overblown, as will be revealed by Apple's quarterly numbers this week.

The test that Volokh, et al, ask the court to apply is intent. According to them, so long as the information was gathered with the intent to publish it, the act of doing so should be protected by journalistic privilege. Perhaps that suggests a mistake made by hackers who stole data from ChoicePoint and LexisNexis.

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4. Seth Finkelstein on April 12, 2005 10:59 PM writes...

Brad: I think you're misunderstanding the role of the _amicus_ brief here. It's a very understandable mistake, but it is mistake. These briefs don't have to argue the whole case, just a piece of it. They're oppositional to the line of argument that IF there is a journalist's privilege, THEN these defendants don't have it.

So far, the judge in the case has very explicitly not touched that argument. But the higher court could address it, hence these briefs.

It's a module, not a whole application.

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5. Dr. wex on April 13, 2005 10:55 AM writes...

One thing missing from these comments seems to be a point of focus. The bloggers are not being charged with revealing trade secrets. In fact, they've not been charged with anything except concealing their sources. The question, insofar as I understand it, is not "Can bloggers publish trade secrets?" but "Can bloggers be forced to reveal sources?" (And, as Seth points out, whether these bloggers are due the protection enjoyed by conventional journalists.)

The former point might be argued on a free-speech vs. privacy vs. corporate privilege basis. One assumes that if Apple wanted to argue on this basis it would have filed such a suit. Essentially Apple would have said "We don't care where you go the info, you shouldn't have published it." It did not, again in my limited understanding. Since it did not, I'm not sure what the point of these pronouncements is.

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6. Donna Wentworth on April 13, 2005 11:14 AM writes...

You might find the EFF FAQ helpful here. These journalists haven't been charged with anything; they are not criminals. Apple is subpoenaing an ISP in the hopes of being able to dig through the private email of a journalist to unmask a source -- without exhausting all other means of getting the information.

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7. Seth Finkelstein on April 13, 2005 12:22 PM writes...

I actually understand Brad's point, it's just misdirected.

The heart of this case is the extent of journalistic exemption from giving court evidence. While this has an almost mystical status in many discussions, it's in truth a lot less than is commonly perceived (my own touchstone on this is when Declan McCullagh played a role in court cases getting *TWO* - count 'em, TWO - cypherpunks mailing lists members sent to jail. Really impressive in many ways).

Journalistic purpose isn't a get-out-of-court-evidence-free card. It's just not. Moreover, if it *was*, that has some pretty bad implications, because it turns citizen journalism into a crime or tort evidence-laundering machine.

So this is about one of those boundaries. Where the boundary should be, I'm not arguing that here.

Permalink to Comment

8. Brad Hutchings on April 14, 2005 6:35 AM writes...

Seth: Admittedly, I had forgotten that in these briefs, if the point of the case is "blue" and someone thinks that "pink" is at stake, they submit a brief extolling the virtues of "pink" and we call that the legal process.

This particular case has nothing to do with the public interest. Nobody was ever hurt or killed by the details of a future Apple product. It has everything to do with the public's insatiable curiosity about other people's secrets, particularly Apple's secrets. It seems like a very funny battle for the copyfight to get all worked up over. Consider, when you lose, the rep you essentially will get is that you sued Apple to find out what's in the next Mac. On the ledger sheet of silliness, it's right up there with the RIAA suing deaf mute 14-year olds living in public housing. And Alan's original point was that this was a PR disaster for Apple. Puh-lease.

Oh, and if by chance the copyfight side wins... Apple legal is going to come down like 12 tons of bricks on Young Nick's hind quarters. To Apple Legal, this is not about 1 incident, but about being blown off for 2 years over a myriad of such incidents. He'd be lucky to lose and have his ISP cough up his source.

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9. Crosbie Fitch on April 14, 2005 7:06 AM writes...

Now of course, if it were all about finding what was in the next Mac from a different manufacturer, perhaps MacDonalds, and it was codenamed Soylent Green, then there may well be sanction for the parties involved in the theft of such trade secrets to have their anonymity and right-to-publish protected.

Perhaps it's yet another case of terminological malapropism?

Have people started to confuse 'public interest' with 'the public's insatiable curiosity' just as people confuse 'copyright' with 'inalienable human right to retain control over copies of one's work'?

Permalink to Comment

10. TomCS on April 14, 2005 9:26 PM writes...

When I commented in an earlier thread, triggered I think by a piece from Donna, I moaned about the inadequacy of the reporting of this set of cases, as much by the big media as the interest group sites. This is particularly so when the raw legal documents are available in 13pt double spacing, courtesy among others of EFF.

I agree with most of what is said in this thread, and welcome the recognition the Apple has some rights as well. The current case does however have one peculiarity which tends to be overlooked: it derives from a subpoena issued not against an internet publisher, but against an ISP.

IANAL, but IMHO the most interesting amicus intervention is not the predictable First Amendment theses from the MSM, or even the limited suggestion from the "bloggers" on how to identify those among them deserving of the available protection for journalists, but from the Internet Industry Association and Netcoalition, dated 8 April (and on the EFF site).

This argues that the privacy of communications rules, under the federal Stored Communications Act, trump Apple's right to discovery, at least from this source. On the face of it a nice case of conflict of laws, and one likely to keep the lawyers' clocks ticking over profitably for some time. Are the RIAA cases where they have acquired information on P2P music distributors from ISPs relevant here?

If this subpoena is rejected for that reason, Apple can presumably revive its subpoenas against the actual publishers, so this is only the beginning.

And to pick upon Donna's point above, while the internet publishers have not so far been charged with anything, that is no reason to believe that they will not be: the judge's clear treatment of the handling of the Apple "Asteroid" material as potentially theft, and of ThinkSecret's role as "fencing", and the involvement of the US Attorney in the case of the BitTorrenting of a developer release of OSX Tiger, imply strongly that Apple legal have yet to show much of their hand. And Apple is still to name the "Does", which could potentially include the internet publishers as well as the original leaker(s), depending on what discovery discloses.

Permalink to Comment

11. Neo on April 15, 2005 6:42 PM writes...

What is Soylent Green? I've seen it mentioned elsewhere, recenty, so it doesn't seem to be a purely made-up name.

Permalink to Comment

12. Crosbie Fitch on April 15, 2005 7:28 PM writes...

If you ate a burger from the same company that produced Soylent Green, you'd turn green yourself.

Bung it into Google. If Charlton Heston were a journalist he'd rightly be let off scot free for revealing the ingredients.

Permalink to Comment

13. Neo on April 17, 2005 3:49 AM writes...

That does not seem to be an answer to the question, although it does seem to indicate it would make one ill, in which case it would clearly be in the public interest to disclose the stuff's use in a Big Mac.

Permalink to Comment

14. Crosbie Fitch on April 17, 2005 5:54 AM writes...

The answer is out there, Neo. It's looking for you. And it will find you. If you want it to.

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