Apple Wins Against Bloggers 672
linuxwrangler writes "Saying that no one has the right to publish information that could have been provided only by someone breaking the law, judge James Kleinberg ruled that online reporters for Apple Insider and PowerPage must reveal their sources. No word yet on an appeal."
A refreshing victory for common sense (Score:4, Insightful)
This judge has clearly shown that he has a grasp of the fundamental issues surrounding this case, and has realized that this is not a case about whether online sites are "journalists" or about the "right to blog". It's about when it's about when the dissemination of information in the public interest clearly overrides any other legal concerns or contracts and entitles journalists to not reveal their sources - and when it clearly doesn't.
And if you're not going to RTFA, here is some of the jugde's ruling:
"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 enthusiast sites] are doing nothing more than feeding the public's insatiable desire for information.[1]
[...]
Defining what is a 'journalist' has become more complicated as the variety of media has expanded. But even if the movants are journalists, this is not the equivalent of a free pass.
[...]
The journalist's privilege is not absolute. For example, journalists cannot refuse to disclose information when it relates to a crime.
[...]
[The information about Apple's unreleased products] is stolen property, just as any physical item, such as a laptop computer containing the same information on its hard drive [or not] would be. The bottom line is there is no exception or exemption in either the [Uniform Trade Secrets Act] or the Penal Code for journalists--however defined--or anyone else.
[...]
The public has had, and continues to have, a profound interest in gossip about Apple. Therefore, it is not surprising that hundreds of thousands of 'hits' on a Web site about Apple have and will happen. But an interested public is not the same as the public interest."
Note that the judge did not say that Think Secret and other online sites weren't journalists; indeed, he tacitly acknowledged that they, and many others, may in fact be "journalists". But that fact is, correctly, irrelevant. In other words, online sites or bloggers may in fact be journalists; this isn't about "the right to blog". However, being a "journalist" does not automatically mean the mechanisms of obtaining information, the information itself, and the sources of the information are automatically protected by journalist shield laws and exempt from discovery, especially when otherwise applicable laws (such as the UTSA) may have been violated. In other words, when a crime may have been committed (and the burden of whether or not this information constitutes a "trade secret" still rests on Apple, even after this ruling).
Further, the judge makes no distinction between online publications and mainstream newspapers, simply a distinction that any and all information gathering mechanisms are not necessarily protected if other laws are violated. The assertion on the part of some that "these subpoenas wouldn't exist if it was the New York Times or salon.com" is baseless at best.
No doubt someone will find issue with what is or isn't "public interest" and the fact that the courts (i.e. the "government") must make such a determination and is simply shifting the importance of whether someone can be considered a "journalist" to another consideration, essentially allowing the government to decide what is "acceptable" to be leaked and what isn't, and will make arguments that this will make it easier for corporations and/or the government to hide abuses, stop whistleblowers, etc. However, all of these arguments are red herrings. The court clearly acknowledged that sources information in the clear public interest must indeed be protected. Further note that the court DID NOT rule on the merits of Apple's claim itself, i.e., that the information was in fact a trade secret: "The order of this court does not go beyond the questions necessary t
What to think... (Score:5, Insightful)
What were they thinking. (Score:5, Insightful)
Re:A refreshing victory for common sense (Score:1, Insightful)
This spells the end of the magazine (Score:5, Insightful)
Re:A refreshing victory for common sense (Score:5, Insightful)
Re:And yet, on the other hand... (Score:4, Insightful)
What you seem to be confused about is that companies, like people have rights which have to be considered.
Good! (Score:4, Insightful)
The people that published this material are accessories to a crime and should also be treated as criminals.
This isn't about free speech, this is about a crime.
The Rule of Law (Score:5, Insightful)
It's about time Robert Novak was thrown in jail for outing Valerie Plame!
Oh - we're just talking about Apple insiders? Who gives a fuck?
Re:A refreshing victory for common sense (Score:1, Insightful)
I don't think it's insightful at all. It is one of the most informative posts I've ever seen. It's spot on in explaining the ruling. I don't agree with the conclusion. I don't see the public interest in enforcing trade secrets laws that is more important than the chilling effect of this ruling. If this was rape or murder, sure, but violating trade secrets isn't as important of a crime to enforce.
I wish people would understand there is a difference between the three I's on Slashdot. It doesn't help to meta-moderate when someone uses the wrong I, because you're punished if you don't agree with other more lazy meta-moderaters.
Re:Yeah, its great (Score:2, Insightful)
Yeah. That, and the small issue that they might have broken a law doing so.
What property right justifies the application of restrictions imposed by an agreement on someone that never signed that agreement?
The fact that the UTSA says that revealing information that can reasonably be believed to have been obtained as the result of the breach of a binding confidentiality agreement is prohibited. Do you understand that NDAs or any confidentiality agreements would be meaningless if all you had to do was leak them to someone else, who in turn publicly leaks them, all with no repurcussions of any kind nor any recourse for the employer?
Re:A refreshing victory for common sense (Score:3, Insightful)
Leaking a press release early is not Espionage. (Score:2, Insightful)
Leaking a press release early is just more press. It is a farce and I would boycott apple if I was actually in the habit of buying their products in the first place.
Re:-1, Flamebait, Astorturfing, and Wrong (Score:5, Insightful)
You're wrong in a million ways, but the most important one is this. This particular expression of speech does not in any way present a clear and present danger to life and limb and consequently, it not only "ought" to be protected, it is protected according to the Supreme Court of the United States of America. Threatening someone's profit margin is not the same thing as threatening their safety.
The speech IS protected. No one is going to throw the proprietors of Think Secret, PowerPage, or AppleInsider in jail over their speech.
What is NOT protected are their sources, who are breaking currently in force, legally binding confidentiality agreements to reveal the information, and the fact that the web sites, by publishing said information, are also in violation of the Uniform Trade Secrets Act, versions of which have been adopted by 45 states including California.
This is not about speech. This is not about the right to blog. And if you think it's about the employees' right to "speak" about topics covered under confidentiality agreement, apparently someone forgot to tell them, and you, that they don't have to work there if they have that little respect for good-faith agreements with their own employer.
Re:Yeah, its great (Score:3, Insightful)
"I think it's telling that Apple chose to file suit in California, the very same state that Richard Nixon is buried in."
"I think it's telling that Apple's complaint was printed on paper, the very same material that Hitler used to wipe his ass!"
Well, guess what, Sparky
Dumbest comment ever.
Re:Good! (Score:3, Insightful)
Like those here on Slashdot who published copies of DeCSS in violation of the DMCA?
Re:A refreshing victory for common sense (Score:3, Insightful)
The only way for that not to be true is if Apple itself had authorized the release, which clearly they did not.
Re:A refreshing victory for common sense (Score:1, Insightful)
Are you for real? Now we are determining which crimes are more important? Breaking the law is breaking the law. Period. End of story.
As for the ruling, I believe this is the correct one. There is a big difference between being a whistleblower and giving out trade secrets, and leaving the distinction in the case at large to be determined was also spot on.
The First Ammendment is not absolute. (ie. Crying Fire! in a crowded theater) And if that, the most sacred of the ammendments, is not absolute, then neither is a journalist's shield.
Re:Yeah, its great (Score:5, Insightful)
As the judge wrote, an interested public is NOT the same as a public interest.
Re:Yes, he's already held in contempt of court. (Score:2, Insightful)
Re:A refreshing victory for common sense (Score:3, Insightful)
You're rolling a whole lot under one umbrella there. Physical property is different from so-called intellectual property, is different from ethics and deception.
Apple is trying to create a false reality--a reality in which secrets are kept merely by agreement. That's not realistic on any large scale. Equating 'secrets' with 'physical property' doesn't change reality.
I disagree with forcing TS to reveal their sources in this case, not because I think there should be no repercussions for those who violate confidentiality agreements, but because I don't think Apple has the right to force (via the courts) TS to do their work for them. Apple has leaks, and needs to find and fix them themselves. It should be up to TS whether to help Apple or not.
We're not talking about info critical to solving a major crime, we're not talking about private personal data, we're not even talking about critical strategic data, we're talking about a contract violation, a contract of confidentiality on some hardware audio input that Apple was planning to release shortly anyway--and a contract that TS is not even a party to. This is about Apple not getting to control the hype they want. Too bad. Apple doesn't have a right to get the hype they want, only the right to try. You don't always get what you want, and it's unfair of Apple to use force in this case.
Re:Yeah, its great (Score:3, Insightful)
1) actively soliciting people to break their non-disclosure contracts
2) publishing information which you actually know to be protected by a non-disclosure contract covering the person who gave you the information
There is no property right at stake here. The first place you start is tortious interference with a contractual duty. Then you get into trade secrets and it gets a bit more complicated.
This is a terrible day for anyone who thinks that being a "journalist" should give you a free ride to break any contract or trade secret laws you want in the name of "freedom".
Re:What were they thinking. (Score:3, Insightful)
The ruling means that I cannot go to a journalist with suspicions that my current employer may use illegal methods. It probably means that I cannot go to a journalist even if I am absolutely certain my employer uses illegal methods, because it would be illegal of me to disclose that my company behaves illegally. On the other hand, it is illegal not to denounce criminals... Oh, well, I guess I could go to the police.
But what if my company's practices are perfectly legal, but highly immoral? (They may for example use sweat shops in poor countries or buy material from sweat shops or pollute poor countries in desperate need of cash.) I cannot go to the police with that information, because the police doesn't care about immoral behaviour, as long as one doesn't break the law. And with this ruling, I cannot alert the press either, because the press will have to disclose who gave them information, which my company considered secret.
In the case with Apple, the law worked well, but it is by no way certain that we will like that it is interpeted this way next time.
Use common sense (Score:2, Insightful)
The point that I'm making here is that if I was going to give specifics or name names, I'd be smart enough to do it anonymously. If you're going to violate any secrecy agreements that you've signed, be smart enough to get a throw-away email address or use an anonymous remailer.
LK
Comment removed (Score:5, Insightful)
Re:The judge is a moron (Score:1, Insightful)
Boo Fscking Hoo (Score:1, Insightful)
Do you understand that NDAs or any confidentiality agreements would be meaningless if all you had to do was leak them to someone else, who in turn publicly leaks them, all with no repurcussions of any kind nor any recourse for the employer?
Poor babies. No recourse for the employer. Since there's so much recourse for employees, and consumers, and sweatshop laborers, when corporations get out of control, that sounds pretty unfair.
Re:A refreshing victory for common sense (Score:3, Insightful)
Business plans are NOT speech ... (Score:3, Insightful)
These are business plans, schematics, insider corporate strategy NOT speech - these items are CAD drawings, supplier contracts
Re:Good! (Score:5, Insightful)
Don't break your word. (Score:2, Insightful)
I'm even more disappointed that they're pursuing it. I am in favor of the freedom of the press. I can't possibly know all the details, including what sort of agreement Nick DePlume has with whoever his source is.
Seems like somebody told him some stuff and he published it on the web. It must have pretty good stuff. But if Nick told the Apple mole, who I'll call Gerald, that he wouldn't reveal Gerald's name to anyone, then he shouldn't. Don't break your word. Should you break the law to keep your word? People have to answer that question themselves based on their values and character, but I'd say yes. Even if it means jail.
Now, in order to play both sides of the fence here, the Mole at Apple, or one of their associated companies - whether it's a manufacturer, or some dude at an Ad Agency - has signed an NDA, then he should be living by it. Again, don't break your word.
But I have a hard time with this fishing expedition. And that being said, I didn't visit thinksecret much before, but the publicity that is being generated keeps me checking the place out. I'm not sure if that was Apple's intention, but there you go.
You want me to get to the point? Here it is:
Stamp out leaks internally. Don't sue fans.
Having said that, I'm still going to recommend to everybody in sight that they wait until Tiger (which has been announced) comes out, then buy the 12" iBook with the airport card and max out the ram. Or a Mini. Depending. Unless you want to run Linux on it. In which case buy it whenever.
The other thing I was wondering about - TFA calls it a criminal act, releasing that sort of info. Is it a criminal matter or a civil one?
-Holmes.
Re:A refreshing victory for common sense (Score:5, Insightful)
The relevant question is, does Apple have a right to discover the identities of the violator(s)?
I believe that they do. Declan McCullagh's article (news.com) on the topic is indicative of the false assumptions made by many people as concerns this case. As the judge correctly surmised, an "interested public" does not equate with "the public interest". The Watergate scandal involved criminal acts that clearly reached to highest levels of government. Apple v. Doe involves a tort committed against a corporation inclear violation of prior agreements. The two are not equivalent.
Freedom of speech and freedom of the press do not, and should not, extend to an ability to withhold the identities of persons who have committed an illegal act. The same would be true even if we were discussing the attorney/client privilege. An attorney who is privy to physical edvidence that his client is guilty can be lawfully compelled to reveal that information.
This is not about corporate interests v. the public interest.
Re:A refreshing victory for corporate synchophants (Score:3, Insightful)
You seem to be under the mistaken impression that an individual is incapable of breaking the law, or is at least "less able" to break the law than a corporation.
Also, Think Secret (I'm not sure about the others) is operated by The dePlume Organization [deplume.com], a limited-liabilty corporation.
The 'free speech' issue isn't' about wether or not you can go blabbing your companies trade secrets, it's about wether or not someone else, someone who has not signed an NDA or anything else should be able to re-spout them.
The law says that you cannot do this. The judge is doing his job by enforcing the law. Your gripe is with the law, not with the case.
These people, who are not under contract should be able (I think) to say whatever they want without repercussion even if someone would be harmed by the common knowledge.
To do that would mean throwing out libel and slander laws, as well. Freedom of speech (or freedom of the press, which is more accurate in these cases) is not an absolute right.
But it seems to me that simply telling the truth ought to be protected under the constitution, if you don't sign an NDA.
I would not describe the printing of illegally obtained information for a profit to be "simply telling the truth".
Yet, here these people are being forced to A) name their source, or B) Go to jail (or something). They're being punished for telling the truth about something, despite the fact that they signed no NDA and were not under any contract.
Apple was not, and is not, seeking damages against these sites. They were seeking information, and now the court has ordered them to give up that information. If they do not, they can appeal, or be held in contempt of court. I sincerely doubt that they will choose not to appeal this, but I doubt even more that they will choose to ignore the court's order should it not be overturned.
A refreshing victory for common sense-Amen. (Score:1, Insightful)
FUCK YOUR WHORE OF A MOTHER (Score:0, Insightful)
Define "important". Should we neglect those who violate traffic laws and only focus on those who murder? No. Both are important. A traffic violation might result in manslaughter. If your question is a hypothetical where if we were only able to enforce one and not the other, then obviously murder would be the one chosen. However, we don't live in that world. All laws are enforced, as they should be. The small crimes (and traffic regulations aren't part of the criminal code, btw) are given court time no differently than murder trials.
Re:A refreshing victory for common sense (Score:3, Insightful)
I have never heard such nonsense! Find a judge or lawyer who has never broken the law!
The law is a complete and corrupt disaster.
It is a tool of the rich and powerful (don't believe me? See if you can afford a lawyer! The law isn't made for you, you can't really afford it!)
To add insult to injury, the legal system is so complex that even lawyers don't understand it all. One lawyer can't help you with all your possible problems. In theory to avoid getting in trouble you need to have a pack of about 20 lawyers running all over the place with you to make sure you don't do something that could get you in trouble.
Laws are:
The law is a system controlled by idiots, hypocrites and liars! Don't believe me? Look at your country's Internet laws or patent laws. Only a bunch of idiots could have come up with that!
Like many other things in our world today, the legal system is a disgrace to the human race.
A lot more could be said but I can't even be bothered. The people of today don't seem to give a shit about anything... not even themselves!
Please just start thinking and stop regurgitating!Re:Shameless link peddling (Score:3, Insightful)
Child pornographers in prison everywhere would beg to differ.
Everything breaks the law now days (Score:3, Insightful)
Naturally these days everything and anything breaks the law, and it comes down to who haves the most money.
Re:A refreshing victory for common sense (Score:3, Insightful)
Apple, just another corporation (Score:1, Insightful)
Just for your information, here is a "fun" comparison of Apple vs Microsoft.
Apple's employees are not allowed to blog about their activities in the company (except for 1 person - Safari developer). Almost all Microsoft employees blog about their activities at work/what they're working on,... and are encouraged to do so.
Microsoft has never sued anyone for posting screenshots/videos of their leaked software or suing someone because he leaked information about their new product. There are websites (winsupersite) with leaked screenshots/information/leaked information about Lonhorn. Thurrott is spreading info he got from MS's employees which wasn't supposed to be public.
Apple: ThinkDifferent.com, AppleInsider, PowerPage.
Apple forced the author of Y'z Dock (win32 application that acts as OS X's Dock) to cease development and put it off his site. I don't know if legal actions were used.
Microsoft hasn't sued or sad anything negative about Mono, Wine, Cedega, ReactOS etc,... which as we all know, are all aplications (some OS's) that walk on thin ice with MS. The only thing I remember MS saying about Mono was "we don't support it."
FreeBSD's founder was asked to wim down his FreeBSD public appearances, speeches, interviews, coding, blogs, you name it, after he joined Apple. Apple wanted him "contained" just like any other employee.
Apple is opening their stores in Britain with prices third party shops can't match.
Think about it what you want, but Apple _IS_ the new Microsoft. No other company is as closed as Apple. Everything they do works only on their hardware or is very tied with it. Bill Gates said this best when asked about the iTunes store - I think it went something like this: "Apple did, what they always do, they open a way for new possibilities but they always tie it with their products".
The difference between Microsoft and Apple is that MS comes after you with an AK. Apple comes with a polished magnum.
Re:A refreshing victory for common sense (Score:3, Insightful)
It would serve the best interests of the public, yes, but it would mean these two reporters would effectively destroy their careers because no confidential source would ever trust them again, therefor they would never get any confidential information which is what most good journalists live for. There isn't much demand for journalists who only write about things that are already public knowledge.
I'm inclined to say Judith Miller does deserve some jail time but not in this case. She wisely opted to not publish this story, presumably because she appreciated the dangers of outing a CIA agent, or she realized that by doing it she was just being a pawn in a White House scheme to punish Wilson and his wife for daring to challenge the White House or their sham case for war against Iraq.
The thing Judith Miller does deserve some hard time for was being a lead cheerleader for the invasion of Iraq [counterpunch.org] and the shameless extent to which she pumped up the national paranoia about biological weapons in particular. I'd dearly love to know what the motivation was for her little campaign to whip America in to a frenzy over biological weapons:
- Legitimate concern for the safety and well being of Americans
- Realized it would be a way to make a lot of money, especially by writing a book on biological weapons
- Unwitting pawn of the Bush administration in their desire to whip up a case for sham war in Iraq
- Witting pawn of the Bush administration in their desire to whip up a case for sham war in Iraq
The only two reporters who deserve some hard time in the Plame/Wilson affair are Robert Novak and maybe Jeff Gannon, but since they are both fanatical conservatives and darlings of the one party in charge of the one party state we live in now chances are they will get off scott free while the reporter from the despicable psuedo liberal rag the one party state hates so much, the New York Times, will go down and down hard.
The Bush administration seems to have a flair for sham investigations. For example this week the Pentagon investigation in to an apparent global epidemic of prisoner abuse and torture remarkably found the Pentagon to be completely innocent and it just happens elisted soldiers in Gitmo, Iraq, Afghanistan, and probably other secret locales around the world all took it upon themselves to torture prisoners, and of course the CIA's Rendition program was delivering 100's of prisoners to despotic regimes like Saudi Arabia's specificly for the purposes of interrogating them via torture. The irony here is either the chain of command ordered the torture, or the chain of command failed to prevent it. You cant have enlisted men do bad things in the military without an officer either ordering it, or being derelict in his duty for letting it happen without orders. Enlisted soldiers aren't free spirits who can just do their own thing in the military. They have a chain of command whose job it is to insure they do what the chain of command tells them to do.
Re:A refreshing victory for common sense (Score:4, Insightful)
Re:A refreshing victory for common sense (Score:3, Insightful)
You're wrong (Score:1, Insightful)
As to apple's sizzle, who cares? Who said Apple has the constituional right to "sizzle"?
You're the perfect reason to hate apple fanbois.
Re:A refreshing victory for common sense (Score:3, Insightful)
And pray tell, if this is true then how does Judith "front page WMD stories for 2 years at the NYTimes" Miller still have a job? Novak still has his column and TV spots.
Your rule only applies if you go against a certain party's agenda. If you're a biased journalist doing said party's agenda, you're golden.