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Apple Loses This Round In Blogger Case

Posted by Zonk on Fri May 26, 2006 04:08 PM
from the mask-stays-on dept.
Businesses Censorship Government The Courts Apple News
smart2000 writes "A decision has been handed down in O'Grady, et al. v. Superior Court of Santa Clara County, the case commonly referred to as 'Apple vs Bloggers', in previous Slashdot posts. While like any court case it is complex, the short of it is that O'Grady won this round." From the article: "Apple has failed to demonstrate that it cannot identify the sources of the challenged information by means other than compelling petitioners to disclose unpublished information. This fact weighs heavily against disclosure, and on this record is dispositive."
+ -
story

Related Stories

[+] Your Rights Online: Apple Pushes to Unmask Product Leaker 255 comments
Zack Wells writes "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. This is related to a case of an Apple news site, PowerPage.org, who leaked information about a FireWire audio interface for GarageBand that has been codenamed 'Asteroid.' The subpoena is on hold during the appeal. 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."
Offsite: Groklaw Coverage
[+] Your Rights Online: Apple Ends Anti-Blogger Legal Effort 74 comments
An anonymous reader writes "Apple has decided not to appeal the decision against it in it in its case against the product-information leaking bloggers. News.com discusses the ramifications of this decision, which may make future online journalists bolder in their actions." From the article: "Court documents show the company's investigators interviewed 29 employees who had access to a key confidential document — but Apple did not examine them under oath or examine their computers. That's one reason, the appeals court said, to grant the online journalists the protective order they requested. 'Apple has failed to establish that it adequately pursued other possible means to identify the source of the information in question,' the judges said."
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  • Is that anything like double-plus-ungood? Winston Smith, are you in there someplace?
    • IANAL but I assume the term is based on this [wikipedia.org].

    • Re:dispositive? (Score:4, Informative)

      by Jerry Coffin (824726) on Friday May 26 2006, @04:36PM (#15412782)
      Is that anything like double-plus-ungood?

      "Dispositive" isn't from "dis-positive". It's from the same root as "disposition", "dispose", etc. What they're saying is that they don't need to send this case back to the lower court for a retrial or anything like that -- they have enough evidence to make a final decision about the case.

      • And lawyers wonder why we engineers and mathematicians snigger behind their backs. What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer....

        • What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer...

          While legal loopholes most definitely get abused, having all laws be "absolute, black & white, this is the way it is" has a lot of potential to really break down in situations where a little bit of common sense can save the day.

          That said, writing the laws more clearly is not a bad thing... just making it a strict logical construct such as Modus Ponens

          • While legal loopholes most definitely get abused, having all laws be "absolute, black & white, this is the way it is" has a lot of potential to really break down in situations where a little bit of common sense can save the day.

            I'm not sure I believe in the existance of "common sense" anymore- and thus would rather have society run more like an operating system. Preferably one where there is a bug appeal process, but still at least deterministic instead of indeterministic.

            That said, writing the law
          • ...just making it a strict logical construct such as Modus Ponens ("if A, then B. B, therefore A") will not work in a real society.

            That logical construct is going to be pretty strictly limited to imaginary societies, insofar as it's not actually a modus ponens argument - "if A, then B. B, therefore A" is in fact the fallacy of affirming the consequent. Modus ponens takes the form "If A, then B. A, therefore, B."

            Just FYI before you actually submit your bill in committee :^)

        • And lawyers wonder why we engineers and mathematicians snigger behind their backs.

          Oddly, many of the lawyers I know are engineers. I can see where almost anybody could end up a bit twisted from trying to snigger behind their own back... :-)

          What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer....

          Experience with programming languages, design specification languages, etc., would tend to indicate that even

          • Experience with programming languages, design specification languages, etc., would tend to indicate that even when everybody wants the communication to be clear, it often isn't. Add in a (sometimes quite strong) motivation to misread, misunderstand, etc., and there's virtually no chance you can prevent all misunderstanding and such.

            So eliminate the human experience entirely- let the machines read the law, and let them give us the answer. I just want the law to become deterministic- the same answer out f
            • In adversarial games worth playing, public deterministic strategies lose.
              • In adversarial games worth playing

                Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life.
                • "Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life."

                  Life is an adversarial game. It's a zero-sum competition, which means we are all adversaries. The fact that we form alliances in order to better compete with other alliances doesn't change the fact that we are still engaged in an adversarial game.
                • Perhaps "worth" was the wrong word to use. Games have a mathematical structure. I intended "worth" to refer to situations, whose mathematical structure mathematicians call "games", that have no forced win or draw strategy. Our legal system is adversarial and it follows rules. I was responding to someone's suggestion we get computers to apply those rules to presented cases, in deterministic fashion. The full spelling of my remark is that no deterministic automaton in an this situation can succeed long-te
            • "So eliminate the human experience entirely- let the machines read the law, and let them give us the answer. I just want the law to become deterministic- the same answer out for the same input variables, every time."

              You mean 42 isn't good enough for you?!?!

              B.
      • Lawyers can actually make decisions? I thought they were too busy cashing checks..
    • "Game over, thanks for playing."

      Dispositive, as in, "part of the case can now be disposed of."
  • Does this mean AsSeenOnTV can have his job back?

  • Ralph Wiggum (Score:3, Funny)

    by revery (456516) * <charles@[ ]2.net ['cac' in gap]> on Friday May 26 2006, @04:11PM (#15412612) Homepage
    Me fail grammar? That's dispositive...

    --
    This is a joke. I am joking. You have been joked with.
  • Does this case work then to help establish that bloggers can be considered "press" - and just because a person doesn't work at a corporate or even print newspaper, they are still protected under typical laws and rules the protect journalists? (For whatever that means.)

    • Lay speculation (Score:5, Insightful)

      by abb3w (696381) on Friday May 26 2006, @04:30PM (#15412739) Journal
      IANAL either; I just argue with them about the law. =)

      My educated lay guess: First, the ruling is based in part on the California Constitution Journalist Shield, so in CA they are protected as journalists. Other jurisdictions with shield laws/amendments would consider the ruling advisory, not binding, but would probably be influenced by its arguements. In areas without specific shield laws it would again be advisory, and with more limited use due to the more limited protection of the First Amendment alone; I suppose it might give a basis for arguing against prior restraint in publication for a blog. Of course, that would imply someone would come to try and get a court to order prior restraint on a blog, an idea which would probably make most judge judges call for the Advil.

    • A lot of people have tried to make this case about whether bloggers are journalists or not, but the judges have always sidestepped that. The first ruling, when the defendants tried to block the case under California's shield laws, was rejected on the grounds that revealing the existance of the Mac Mini and an audio break-out box wasn't whistleblowing, since they weren't reporting on a health risk coverup or bribery or the like, and that these items were trade secrets. The rulings since then have all been th

    • The "blogosphere" tried to make this thing into a Blogs vs Journalist issue, but the fact is that it's more of a news site than a "blog". The guy reports Mac news and rumors for a living.

      (Although I notice that since this thing started, he started using blog-like publishing software. http://www.powerpage.org/ [powerpage.org])

  • Can someone translate? (Score:3, Insightful)

    by Ritz_Just_Ritz (883997) on Friday May 26 2006, @04:15PM (#15412641)
    For those of us who aren't parasitic lawyers? :-)

    • Re:Can someone translate? (Score:4, Informative)

      by Kamiza Ikioi (893310) on Friday May 26 2006, @04:20PM (#15412679) Homepage
      Basically, the court afforded bloggers the same protections under the law that are given to all journalists, including shield laws.

      shield law n. A law that protects journalists from being compelled to reveal confidential sources of information. - Answers.com
      • No, in this case, they did not rule on that issue in a general case. They ruled that in this specific case, the actions of the bloggers fell soundly within the bounds of journalism. They explicitly refused to set any bounds on what is and is not legitimate journalism, however, and as such this case sets very limited precedent at best.

        Essentially, the sum total results of this decision were that someone acting in a journalistic capacity qualifies as a journalist, without further refining the definition t

      • Re:Can someone translate? (Score:5, Informative)

        by TheViewFromTheGround (607422) on Friday May 26 2006, @04:55PM (#15412913) Homepage
        Basically, the court afforded bloggers the same protections under the law that are given to all journalists, including shield laws.

        Actually, the court said that they didn't want to rule on what qualifies a person as a "journalist" but would rather focus on the activity. That's a quite sane and reasonable approach.

        I'm currently in the midst of a case where the city of Chicago is aggressively pursuing a subpoena of a writer I work with for our online reporting on police misconduct in conjuction with a federal civil rights lawsuit (see The View From The Ground [viewfromtheground.com]). One of the questions in these cases always centers on whether or not the writer is "really" a journalist. This court sets a useful precedent in arguing that the spirit of shield laws is intended to protect the activity of making and distributing "news" and not "journalists" per se. Of course, there's no federal shield law, so our situation is different.

        Following the court's logic in this case, you have to wonder how much "journalism" (as in material that appears in newspapers, magazines, etc) is protected by shield laws.

  • Apple Computers? (Score:5, Funny)

    by Kamiza Ikioi (893310) on Friday May 26 2006, @04:17PM (#15412650) Homepage
    Oh, now I get it. I was so brand confused. I thought that other Apple company was suing bloggers. Like most people when I think Apple, I instantly think Beatles. ;)
  • How is the Register going to write an article pretending the EFF regularly loses out of this one?

  • A weak victory (Score:4, Insightful)

    by nsayer (86181) <nsayer@kf[ ]om ['u.c' in gap]> on Friday May 26 2006, @04:53PM (#15412894) Homepage
    The victory actually looks rather weak to me. If Apple had been able to demonstrate that they had no other means by which they could have rooted out the source of the leak, then it would seem the court would not have been able to dismiss this so easily.

    Am I missing something?

    • The victory actually looks rather weak to me. If Apple had been able to demonstrate that they had no other means by which they could have rooted out the source of the leak, then it would seem the court would not have been able to dismiss this so easily.

      Am I missing something?

      I don't think you're missing anything, but I also don't think that makes the victory weak. First, they didn't say that Apple would necessarily have won if this was their only way of determining the source, only that they couldn't
    • Am I missing something?

      That the court ruled that Apple has to meet as high a standard to extract a source from a news-and-rumors blogger as from (for example) a LA Times reporter.

      Admittedly, that's not very high, it's California, and it's not even the state's highest court... but it's enough to leave Apple sucking Lemons, sets a precedent that will be at least considered in other US courts, and gives bloggers a little more respect than they had yesterday.

  • In Cupertino, war was beginning.... (Score:5, Funny)

    by Chas (5144) on Friday May 26 2006, @05:07PM (#15413004) Homepage Journal

    SteveJobs: What happen ?

    AppleDrone1: Somebody set up us the bomb.

    AppleDrone2: We get signal.

    SteveJobs: What !

    AppleDrone2: Main screen turn on.

    SteveJobs: It's you !!

    O'Grady: How are you gentlemen !!

    O'Grady: All your secret are belong to us.

    O'Grady: You are on the way to destruction.

    SteveJobs: What you say !!

    O'Grady: You have no chance to survive make your time.

    O'Grady: Ha Ha Ha Ha ....

    AppleDrone2: Steve !! *

    SteveJobs: Take off every 'Mac' !!

    SteveJobs: You know what you doing.

    SteveJobs: Move 'Mac'.

    SteveJobs: For great justice.

  • Very interesting (Score:5, Informative)

    by wootest (694923) on Friday May 26 2006, @07:02PM (#15413553)
    The whole ruling is interesting reading, but towards the end (page 62 and forward) we find these very interesting lines, which I suppose sum up best why Apple lost the case:

    "The publication here bears little resemblance to that in Bunner, which disclosed a sort of meta-secret, the whole purpose of which was to protect the plaintiff's members' products from unauthorized distribution. Here, no proprietary technology was exposed or compromised. There is no suggestion that anything in petitioners' articles could help anyone to build a product competing with Asteroid. Indeed there is no indication that Asteroid embodied any new technology that could be compromised. Apple's own slide stack, as disclosed in sealed declarations which we have examined, included a table comparing Asteroid to existing, competing products; there is no suggestion that it embodies any particular technical innovation, except perhaps in the fact that it would integrate closely with Apple's own home recording software--a feature reflecting less a technical advance than a prerogative of one who markets both hardware and software.

    The newsworthiness of petitioners' articles thus resided not in any technical disclosures about the product but in the fact that Apple was planning to release such a product, thereby moving into the market for home recording hardware.

    [..]

    Publishing a computer manufacturer's proprietary code may thus be compared to publishing a miller's secret recipe for a breakfast cereal. What occurred here was more like publicizing a secret plan to release a new cereal. Such a secret plan may possess the legal attributes of a trade secret; that is a question we are not here required to decide. But it is of a different order than a secret recipe for a product. And more to the point, the fact of its impending release carries a legitimate interest to the public that a recipe is unlikely to possess."
  • So this seems to be the method I aquired the information is the issue. I seem to have broken it down like this in simple terms if I am reading things right.

    If I sneak into Apple and take pictures, documnet copies etc and post them online I am not protected.

    But if I am told or given those documents, pictures, etc. by another person (third party) I am protected. Is this true or am I missing something????
    • But if I am told or given those documents, pictures, etc. by another person (third party) I am protected. Is this true or am I missing something????

      IANAL, but... you would also have to be revealing them as part of a produced news periodical, although a news blog may qualify; and it cannot be a criminal case -- trade secret disclosures are civil cases. If you recieved a stolen Apple prototype, and took pictures of it yourself for your news publication, they would have a better chance at a subpoena for your

    • Yes. Case one is trespassing and espionage. Case two is "soandso told me this". You didn't do anything illegal retelling something someone else told you, but you did when you trespassed and directly disseminated secret information.
  • I have heard the wikipedia was threatend, and offered $2M, to change the Merkey story. The story was changed.

    If the story was changed in exchange for money, then big money is still deciding what gets published, and what doesn't.
  • For those of us who run websites which often disseminate these sorts of trade secrets for the sake of the public good, this is a big win. Just because something is posted in a blog rather than printed on a printing press doesn't make in any less journalism (good OR bad), and just because it's a trade secret doesn't mean we should be forced to reveal our sources. Hopefully, this will encourage more people with inside information to feel comfortable with talking to reporters, without the fear of becoming ex
    • For those of us who run websites which often disseminate these sorts of trade secrets for the sake of the public good, this is a big win.

      I doubt mentioning a product that's about to come out is considered a "trade secret." There were many flaws in Apple's argument, the judge went after something with less impact on the precedence.

  • Very little to see, here. (Score:3, Interesting)

    by mstone (8523) on Saturday May 27 2006, @10:13AM (#15415922)
    Advocacy to the contrary, this ruling doesn't say much. The two sides are still arranging their pieces on the board, and the major facts of the case are still in play.

    This is really just an example of the adversarial legal system in action. Both sides state their ideas in the strongest terms they possibly can, then the other side gets a chance to chip away as much it can.

    In the previous round, the bloggers floated the idea that anyone who puts information on the internet is a journalist, and that anyone who posts protected information should receive the same legal protection as a whistleblower. The court didn't buy that, nor should anyone have expected it to. But that's where the defense started, because it would have been the simplest, strongest win they could get. All they really lost was the right to claim blanket immunity from prosectution for anyone, anywhere, under pretty much any circumstances.

    Now it's Apple's turn. Apple floated the idea that it should get a free pass for discovery since the information in question was vastly important, and that the bloggers had no possible interest in publishing it. The court didn't buy that, either. Had the bloggers posted the product's schematics, or a discussion of some new, patentable idea that Apple had been working on, the decision probably would have gone the other way.

    So as things stand now, the bloggers can't make the case go away on the grounds of blanket immunity, and Apple can't ask the court to fast-track its subpoenas because of the massive-and-ongoing damage it received. Neither of those was really a viable claim in the first place, but that's how the game is played.

    The courts still have to rule on whether Apple has done sufficient work trying to find the leak by other means, and the bloggers still have to face questions about whether they knew the information they posted was confidential, and put it online anyway.

    And NONE of this has anything to do with the question of "whether bloggers are journalists."

    • Dead Wrong (Score:5, Informative)

      by abb3w (696381) on Friday May 26 2006, @04:20PM (#15412678) Journal
      The courts said that bloggers are not journalists...

      BZZZT!
      Quote from the ruling, via Wired [wired.com]:

      "We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis(m).' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here."
      • Yea, sorry about that... seems I wasn't quite reading correctly. So, if I may submit a conjecture, doesn't this mean that if you can smuggle a proprietary corporate document out the door, and somehow publish it (using any means available), you are protected under the shield law?
        • So, if I may submit a conjecture, doesn't this mean that if you can smuggle a proprietary corporate document out the door, and somehow publish it (using any means available), you are protected under the shield law?

          IANAL, but my lay guess: If you publish it as a journalist, you might be protected under the shield law from revealing that you are you are your own source... but you wouldn't be protected from having smuggled or stolen the document originally. Presumably, it wouldn't be hard to connect you as y

        • Nope. If you smuggle it out yourself, you either had the right to see it (in which case you have a non-disclosure binding upon you and can be sued) or you broke in (in which case it is criminal trespass). If the document showed the company doing something illegal, though, you might be protected under a whistleblower law.

          Either way, as the smuggler, you are not a journalist, merely a source.

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