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Judge Finds For Apple in ThinkSecret Case 711

Posted by Zonk
from the you-lose-some dept.
An anonymous reader writes: "In a case with implications for the freedom to blog, a San Jose judge tentatively ruled Thursday that Apple Computer can force three online publishers to surrender the names of confidential sources who disclosed information about the company's upcoming products. The San Jose news piece has the most detail on the ruling while Mac Daily News has some background on the case, and Gizmodo vociferously expresses an opinion on the lawsuit. We've covered the case in the past as well.
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Judge Finds For Apple in ThinkSecret Case

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  • Sorry to be picky... (Score:2, Informative)

    by Anonymous Coward on Friday March 04, 2005 @09:49AM (#11843469)
    ...but it is Gizmodo not Gizmondo.
  • by Arbin (570266) * on Friday March 04, 2005 @09:53AM (#11843496) Journal
    Yes there is, but if you had read the article you would have seen that the Judge did NOT consider these bloggers journalists. RTFA.
  • "tentatively" ? (Score:2, Informative)

    by traffi (800888) on Friday March 04, 2005 @09:54AM (#11843509) Homepage
    A crucial part of the wording here is that the judge "tentatively ruled" in favour of Apple. The article also says that it is a preliminary ruling and that the case is still being argued.
  • by Trigun (685027) <evil@evilempire . a th.cx> on Friday March 04, 2005 @09:55AM (#11843517)
    Journalists sources are most definitely NOT protected. Journalists do not have a legal right to obstruct justice.

    It's been a long standing tradition, but there is no federal law concerning it. This has all been explained due to the outing of a CIA operative by a republican schill.
  • by adzoox (615327) * on Friday March 04, 2005 @09:57AM (#11843535) Journal
    I think you are referring to the shield law, but that applies to criminal and federal cases where the journalist can prove he may be at harm or be casued damaged if they reveal sources (even then - it doesn't apply to federal cases)

    The law that does apply here is the UTSA - Uniform Trade Secrets Act - it specifically says you cannot report or disseminate information you know or can easily research and know is trade secret.

    Really, copyright law applies here too - Think Secret was posting copyrighted/Patented information (that was not yet available at USPTO.GOV)

  • by RobotRunAmok (595286) * on Friday March 04, 2005 @10:07AM (#11843620)
    This was posted the last time we discussed this topic (which feels like just 20 minutes ago...):

    (6) "Professional journalist" shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.

    New York State Consolidated Laws, Article 7, Section 79-h (a) (6) [findlaw.com]
  • by murphj (321112) on Friday March 04, 2005 @10:15AM (#11843692) Homepage
    No, this is 100% about journalism and blogging. If a New York Times reporter had received the same information as the bloggers and reported it, he would not have to reveal his source. Journalists are protected in that regard.

    Tell that to Judith Miller, the Times reporter who has been ordered by the courts to reveal her source. http://www.csmonitor.com/2005/0303/p09s01-coop.htm l/ [csmonitor.com]

  • by babble123 (863258) on Friday March 04, 2005 @10:20AM (#11843730)
    You mean, a New York Times reporter like Judith Miller [uscourts.gov] whose looking at jail time [ifex.org] if she doesn't reveal the name of a source?
  • A few things: (Score:4, Informative)

    by mindstrm (20013) on Friday March 04, 2005 @10:24AM (#11843761)
    - There is no blanket shield law for journalists in the US. Nothing along the lines of doctor-patient or lawyer-client privelege. There are some laws for more specific cases, but nothing generic.
    - This is not about "freedom of the press". You are free to publish (ie: the government can't sell publishing licenses), but you are still responsible for your actions, just as with speech.
    - There is a federal trade secrets act that says publishers can be found liable if they knew, or should have known, that information was a trade-secret being leaked.
  • by Pac (9516) <paulo...candido@@@gmail...com> on Friday March 04, 2005 @10:34AM (#11843837)
    The case is in California. I don't think New York State Consolidated Laws apply there. On the other hand, California has a Shield Law that provides persons connected with news organizations with an immunity from being held in contempt "for refusing to disclose the source of any information procured while so connected or employed for [public dissemination]... or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.", that may or may not apply.

  • by Pac (9516) <paulo...candido@@@gmail...com> on Friday March 04, 2005 @10:43AM (#11843904)
    1) This is not a Federal case
    2) This is being tried in California
    3) California has an specific law protecting journalists from this kind of thing, the Shield law:
    "California enacted a shield law in 1935 and, in 1980, incorporated it into the state constitution. The shield law protects a journalist from being held in contempt of court for refusing to disclose either unpublished information or the source of any information that was gathered for news purposes, whether the source is confidential or not. An exception can arise where a criminal defendant's federal constitutional right to a fair trial would be violated without a reporter's testimony."

    I don't know if it aplies to this case, but the law exists.
  • by 99BottlesOfBeerInMyF (813746) on Friday March 04, 2005 @11:33AM (#11844323)

    One does not have to have a printing press, or a press pass to be journalist.

    True.

    These three publishers have no agreement with apple computers, and are not bound by any promise by others who have made promises to apple.

    True.

    If a judge said to you, "change your vote, or go to jail." Would you?

    What the hell are you talking about?

    This case is simple. The law says it is illegal to publish information you have reason to suspect is a trade secret. These journalists did. Apple sued them for the name of the person who gave them the info. There is no federal law to protect sources. Applicable state laws only protect sources if the story exposes government corruption, organized crime, or public health issues. This is a very good thing. The journalists are guilty and Apple deserves to know the source so they can fire him or her.

    Let me present a hypothetical situation. I have a great deal of stock in a company and I'm a journalist. I find a source at a company that competes with the company I own stock in. I pay them to give me all their computer passwords and bank account numbers, then publish them on the front page. Their stock tanks, the company I invested in goes up, I make a bundle. If there was a blanket protection for journalists and sources I'd not only be free from prosecution, but there would be no way to stop me from doing it again and again.

    I'm all in favor of protecting whistle blowers who expose corruption, crime, and public health issues, but this is a case of none of the above. This was publishing trade secrets for profit. Apple is being nice and only asking for a name instead of damages.

  • Re:Hmmm... (Score:5, Informative)

    by Caiwyn (120510) on Friday March 04, 2005 @11:55AM (#11844513)
    Woz was not a Mac developer. He wasn't even on the original development team. He was rarely involved with projects outside the Apple and Apple II.

    On top of that, the legal fund that Woz is contributing to is not related to this case at all -- it's an entirely different case involving the bittorrent distribution of a pre-release build of Tiger, the next version of OS X.
  • Re:Hmmm... (Score:3, Informative)

    by saddino (183491) on Friday March 04, 2005 @12:08PM (#11844632)
    Plenty of actual Mac developers would.

    Wozniak does.

    Woz is even contributing to the poor boy's legal fund.


    No, you're thining of another case [drunkenblog.com]: three gentlemen who leaked a Tiger dev seed onto BitTorrent. This has nothing to do with this ThinkSecret case.
  • by 99BottlesOfBeerInMyF (813746) on Friday March 04, 2005 @12:25PM (#11844797)

    Your simplification of the case is wrong because California has a specific law protecting journalists from revealing their source.

    Your simplification of the judge's ruling is wrong because the CA shield law only protects a limited subset of journalists, which the judge tentatively ruled these journalists do not meet because they are electronic media and do not own or work on behalf of a TV station, channel, satellite company, etc.

  • by hymie3 (187934) on Friday March 04, 2005 @12:32PM (#11844860)
    Bullshit. What is a journalist? ANYBODY can be journalist.

    No. You, sir, are incorrect. In theory, for one to be a true journalist, one must do actual research. Fact checking. One must have some type of editorial review process.

    thinksecret is better than Drudge (or /., for that matter), true, but is still a rumor mill, not a reputable source of news.

    The prolbem is that mass media has become beholden to corporate Amerika and doesn't do things like extensive fact checking (paging Dan Rather) or exercise good editorial review (NYTimes scandal(s), anyone?). The skimp on these things because of economics--they *have* to get the "scoop" to get the ratings or they can't make their corporate masters look bad. Never mind the fact that such "scoops" are often just rehashes of baseless speculation posted by bloggers.

    Dan Rather got the story right, his team even asked the White House for comment. What they failed to do was verify that the smoking gun was, in fact, a gun not the steaming pile it turned out to be.

    If you follow the ANYONE can be a journalist, then should also follow the "ANYONE can be a ...." where .... is any given profession (mechanic, web designer, traffic engineer). Slapping up a weblog does not, in fact, make one a journalist. (see Drudge)
  • by Nick dePlume (164783) on Friday March 04, 2005 @12:46PM (#11844988)
    Hi --

    I just wanted to point out that the San Jose Merc news article that's linked is not about Apple's lawsuit against Think Secret. It's referring to a separate suit against "John Does," as part of which three sites, including Think Secret, received subpoenas. They're completely different suits.

    Nick dePlume
    Publisher and Editor in Chief
    Think Secret
  • by johnmig (638946) on Friday March 04, 2005 @01:15PM (#11845304)
    I think that the real issue here is that Apple needs to keep their trade secrets. The USPTO requires that entities ACTIVELY protect their trade secrets (Overview here http://www.lawguru.com/faq/19.18.html [lawguru.com] or here http://www.ipwatchdog.com/tradesecret.html [ipwatchdog.com]. If products in development are not trade secrets, then what is?
  • Re:A few things: (Score:2, Informative)

    by mindstrm (20013) on Friday March 04, 2005 @02:12PM (#11845858)
    Except that many years of case law disagree with you. Journalists have some level of responsibility. Just becasue you call something "Journalism" does not mean you get to ignore other laws. What's next "oh well, the reporter shot someone while he was out getting a story, but we can't throw him in jail because of freedom of the press". No, sorry.

    You know what? If the NDA you signed is trying to keep you from disclosing something ILLEGAL, that's another story.

    There is clear law that requires journalists to exercise some caution, and not disclose trade secrets. If you disagree with that law, that's one thing, but don't pretend this is unheard of.
    journalists can and have been jailed for contempt of court for not revealing information the court wants.

  • Tentative rulings (Score:2, Informative)

    by Darth Cow (533706) on Friday March 04, 2005 @02:16PM (#11845908)
    It's important to note that tentative rulings (such as this one) are not actually legally binding in any way.

    This is just the judge's "best guess" of how he will rule on the case. Giving a tentative ruling can help to focus the argument of the case more on the actually relevant issues. Or, it may encourage the losing party to reframe the case, basing it from another legal perspective. Of course, the judge may also have it completely wrong, in which case the lawyers will tell him so and how.

    In any case, this shouldn't be taken as much of a victory at all for Apple. They haven't even gone to court yet.
  • by Caiwyn (120510) on Friday March 04, 2005 @02:19PM (#11845932)
    Nowhere in the constitution does it say that a member of the press cannot be required to divulge their sources, either. Once again, Slashdotters are lecturing others on the first amendment without, apparently, reading it themselves. The constitution says:

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

    That is, Congress can't make a law denying the press the right to print information. Nowhere in the Constitution does it explicitly say anything about a reporter's ability to keep sources confidential in the face of a court subpoena. This is why 31 states feel the need to have shield laws that provide that very protection.

    So ultimately, it will be California's shield law, not the U.S. Constitution, that determines whether or not the proprietors of the websites in question are part of the "press," and whether or not they can be forced to divulge sources. If you want to read up on the specifics, check out this site [thefirstamendment.org].
  • by TheSolomon (247633) on Friday March 04, 2005 @03:12PM (#11846505) Homepage
    Since the California Shield Law applies only for Journalist, maybe the definition of journalist would be helpful.

    From the State Constitution of California, Article 1, Section 2, paragraph B:

    A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

    Nor shall a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

    As used in this subdivision, "unpublished information" includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

    I supply this information in the hope that everyone can make an educated decision when forming their opinions. (As such, I'll be keeping my opinion to myself, with regard to Apple and it's decisions.)

  • by Anonymous Coward on Friday March 04, 2005 @04:03PM (#11847102)
    Has anyone even bothered to mention the Uniform Trade Secrets Act [findlaw.com]? First of all, if Think Secret is openly soliciting for trade secrets, then it is clear that they may be held liable themselves. If they are guilty of this, I have no qualms labeling them criminals instead of journalists, which defeats the Shield law defense in witholding their "sources."
  • by Slack3r78 (596506) on Friday March 04, 2005 @05:06PM (#11847902) Homepage
    Having read the shield law a couple of weeks ago, it appeared that California's shield law would *not* have covered Think Secret unless the judge decided to extend its coverage as it specifically names TV, Radio, and periodical print journalists.

    I never was able to determine exactly how it'd apply to this case, but again, IANAL.
  • by Ohreally_factor (593551) on Friday March 04, 2005 @05:39PM (#11848262) Journal
    Some clarification:

    This ruling wasn't on the Think Secret [thinksecret.com] lawsuit, which is a separate but related case. In this case, Apple wants to subpoena two Mac news sites, and the ISP of one of the sites for information to help them track down who leaked the information.

    In the Think Secret matter, Apple is suing the actual publisher because the believe that he contributed to the theft of trade secrets because he actively solicits such leaks on his website. Whether Power Page [powerpage.org] or Apple Insider [appleinsider.com] have similar solicitations, I don't know, but they're not getting sued, they're getting subpoenaed.

    [rant]It's becoming typical of slashdot editors to skip over important details and post articles that contain sloppy writing and sloppy thinking.[/rant]

    Whether this is leak was harmful to Apple is not as cut-and-dried as you make it out to be. Remember, it's not just the consumer that now has access to this information, but Apple's competitors. I think Apple can fairly make the claim that this is very harmful to their business, though it would be up to a court to decide that matter.

    As to Apple going after the publisher or reporter of the story, the freedom of the press issues, and the California shield law, keep in mind that such laws are based on balancing the public interest and the public right to know against private interests, privacy, and trade secrets. Shield laws were to designed to protect whistleblowers. If Apple had been committing accounting fraud, or some such scandalous behavior, and an employee leaked the information to one of these sites, then the California shield law could appropriately be applied.

    One last detail. It is possible that the leaker(s) is not an Apple employee, but a consultant or contractor, or an employee of a contractor. I don't know if this matters much to the case at hand, since outsiders granted such information almost always have to sign an NDA as well.

    BTW, I'm not picking on you, you just seemed a little unclear on the subject, like many other slashdotters posting here. I chose to reply to your post because you seem reasonable and coherent and I'm a long time (since 1975 at least) Led Zep fan.
  • by Ohreally_factor (593551) on Friday March 04, 2005 @06:15PM (#11848556) Journal
    So why didn't Apple simply get a judge to order the journalist/blogger to reveal their source, rather than sue them?

    If you'd RTFA, you'd find that that is what they are doing in THIS case.
  • Re:What??? (Score:3, Informative)

    by JQuick (411434) on Friday March 04, 2005 @06:22PM (#11848626)
    The majority of state have similar laws - generally called "Uniform Trade Secrets Acts" or UTSA.

    In each case the law states that it is illegal to publish, make use of, or otherwise benefit from information which the user has reason to know is protected as a trade secret.

    The defendant knew for a fact that this information was protected, and that the information was gathered from those who were contractually obligated not to divulge it (it was covered under NDA).

    Thus, it was a civil crime for his source to give the information. It was also a civil crime to publish those statements.

    The remedies (under the California UTSA statute) are divided into both monetary damages, and court ordered innunctions.

    In this particular case, fines, and injunctions to stop making use of this particular information are pointless. Instead Apple asked the court to order the defendant to divulge his sources, since that is the only remedy which can enable them to stop further damage.

    Thus, this is not really an issue of first amendment freedom or freedom of the press. It is a request from Apple to have a judge provide legal remedy under the UTSA, in the only way which is relevant for them. Basically the author who was subpoenaed solicited information in breach of contract, knowingly published that information in breach of the UTSA, and then sought protection under the guise of free speech This seems specious to me. I side with Apple on this one.

    I do believe that if used unwisely this law could have a chilling effect. However, the injunctive remedy is decided on a case by case basis at the judges discretion. Also the law punishes those who misuse the law by awarding damages and legal fees to the defendants if the plaintiff is in the wrong. This seems to provide a reasonable measure against abuse.

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