Reporting on the judge's decision in the Apple lawsuit against three Web sites has been about as bad as it gets. (Celebrate the stupidity with this lovely vase of a wormy apple, from the Seekers Glass Gallery.)
Let me tackle, as an example, the outlet with the best reputation, the BBC. Apple makes blogs reveal sources is the headline.
While the company won the initial court ruling, the fight is far from won. And the decision wasn't germane to bloggers, as the actual story made clear. "Judge Kleinberg said the question of whether the bloggers were journalists or not did not apply because laws governing the right to keep trade secrets confidential covered journalists, too."
Trade secrecy, in other words, gets more protection than national security.
More after the break.
What the Judge ruled was that trade secrecy trumps all rights to anonymity. If these people had gotten something against the Governor, or even the President, they might have been covered by California's press shield law. But since it was a trade secret case against Apple there was no public interest.
The precedent, if upheld, is against journalism -- all journalism -- not just against bloggers. In other words, if the BBC got hold of Apple trade secrets using anonymous sources, they would have to give them up, too, under this order.
And, as I said, there are still appeals, which the Electronic Frontier Foundation is pushing.
Dana Blankenhorn has been a business journalist for over 25 years and has covered the online world professionally since 1985. He founded the "Interactive Age Daily" for CMP Media, and has written for the Chicago Tribune, Advertising Age, and dozens of other publications over the years.
1. jdb on March 14, 2005 06:55 PM writes...
A suggestion, go find out the details of why IN THIS CASE journalists get less protection than in the case of watergate or the Pentagon Papers. (I'm not exactly sure what national security issue you are talking about since you never said.)
It isn't hard to find out why. I would help but then you wouldn't get the benefit of a little education. Here's a hint, read the judges decision and perhaps some of the motion briefs.
Permalink to Comment2. Brad Hutchings on March 14, 2005 07:22 PM writes...
I'm sure the EFF would be stepping up to defend free speech if the information in question was Steve Jobs' medical record. As the judge said... stolen goods, stolen information, it's fencing just the same. Apple should win this one. There was no "public interest" or democratic imperative in knowing how slim the new Mac Mini was going to be before it was announced. To pretend so is beyond silly.
Permalink to Comment3. Alex in Los Angeles on March 14, 2005 08:05 PM writes...
"There was no "public interest" or democratic imperative in knowing how slim the new Mac Mini was going to be before it was announced."
So?
Public interest is not the only standard in this case. There is also the question of what Trade Secrets should be protected at the expense of our freedom of the press. Any old "trade secret" so described by any business on it own terms?
To say there is no democratic imperative is an over reach, IMHO. I would simply state that there might be a public interest in having a press that can't be bullied by businesses that slap "trade secret" on anything and everything.
"stolen goods, stolen information, it's fencing just the same."
Really? In all cases? Of course, you would recognize the obvious counterexample of information on illegal activities, no? Or information of no real business value, no? You really want newspapers harrassed as petty criminals for the equivalent of stealing a pizza?
"How eager they are to be slaves."
Permalink to Comment-Tibuerius, from Gore Vidal
4. Alan Wilson on March 14, 2005 08:18 PM writes...
All these "journalists" love to gloss over the real details on the case and see it as an attack on free speech, or bloggers, or some such. Tell you what, the BBC, or the New York Times would not publish the facts (rumors) that were published, in the manner that they were published, because THEY HAVE LEGAL DEPARTMENTS WHICH WILL ADVISE THEM THAT TO DO SO WOULD LEAVE THEM OPEN TO LITIGATION! The law is on the books and is quite clear. Disagreeing with a law is one thing. Breaking it is another.
Permalink to Comment5. Kev on March 14, 2005 11:36 PM writes...
Defenders of AppleInsider and PowerPage are Wormy.
Like jdb said, go read the pdf file. The Asteroid case is an obvious case of stolen goods, and does not involve reporting on any illegal activity by Apple. How much more obvious can it get?
To Alex and Dana: A business can't slap "trade secret" on something after the fact per the clause that the company must use reasonable means to protect the information. But if the information was already clearly protected by the company as a trade secret (no matter what it is), there is no way you should be able to use it directly from that source (excepting the illegal activity and legal evidence clauses).
If the information can only very weakly be considered as a trade secret, then there should be plenty of other sources from which the information could be derived with a little bit of intelligence and a little bit of legwork. So go derive it, and don't copy directly from a document that says Apple Need To Know Confidential.
And Dana, don't throw around foolish words. By that I mean go and print an exact facsimile from a document that is classified Top Secret by the government. (If the military is not your cup of tea, try an IRS tax return that is not your own.) Just go ahead. I can guarantee you there will be a much greater response than a subpoena for your source.
Permalink to Comment6. John on March 14, 2005 11:59 PM writes...
I thought you said you were a journalist, but you didn't do any homework before this post. Did you copy the Kleinberg quote from another news article, or did you really read the ruling (which contains all the relevant parts of the UTSA and penal code in it)?
If you had read it, you would realize your "gotten something against the Governor or even the President" comment was pure FUD. And you would realize the burden-of-proof on Apple to show the info was protected as a trade secret. Shame!
Permalink to Comment7. Alex in Los Angeles on March 15, 2005 12:25 PM writes...
NOTE: My concern is more with precedent and CA's Trade Secret's Act than with the Judges determination that Apple's info was a legitimate trade secret.
I think we would all be better served if the press had a right to protect their insider sources when publishing some "trade secrets." I think in Apple's case, their data was probably rightly protected, but I don't think CA laws, and some arguments I've read, leave much room for anything other than illegal or legal evidence exceptions. My proposed change is limit what can be called a trade secret, otherwise any corporation can take a journalist to court to let the judge settle what is in the public interest. I would want to limit journalists' exposure to that kind of harrassment.
I think billion dollar multinationals have been given quite a nice legal bludgeon against journalists. I think it is silly to think there is no risk this precedent would not be exploited and abused by corporations against the press, especially independent press that tended to piss off said businesses.
Do people believe that in the long run we'll all be better off for reigning in that nosy business press; surely, with corporations now as powerful as many governments it is dangerous not to limit what a corporation can call a trade secret. Having an open society with a free press as a watchdog should not only apply to government and politics, but also to our dealings with corporations.
I wonder are the following able to be called trade secrets, and do you think their protection should trump "public interest" in all cases:
Financial statements/data (were all of Enron's tricks technically criminal?)
Lobbying plans
Product safety data (not showing criminal negligence but still raising concerns, and which a corporation would want to release on its own terms)
Manufactoring practices data (use of potentially hazardous materials, pesticides, etc.)
Permalink to Comment8. Brad Hutchings on March 15, 2005 04:16 PM writes...
You know Alex... the funny thing about this case is that all of the civil libertarians have decided to make a stand on something so obviously silly that it pretty much diminishes their standing on legitimate issues. The EFF will now be known as the screwballs who defended the guys who stole trade secrets from Apple. They are to the 2000s what the ACLU was to the 1980s. Sometimes you just gotta let things go so that you have a shred of credibility when it counts.
Another thing... you don't have to be too legally savvy to realize that the specific lawsuit is a culmination at a single focal point of an ongoing issue between the two parties. While I read Think Secret just as often as the next guy, Nick dePlume has been in Apple's legal sights for this kind of thing for a long time. In isolation, this may look weird, but this is how Cosmic Justice with a capital C.J. works. Hilarious what kinds of interesting bugs this part of the process traps though.
Permalink to Comment9. Alex in Los Angeles on March 18, 2005 12:27 PM writes...
Brad,
We may just have to agree to disagree on the importance of the precedent set with Apple's silly suit against the rumour sites.
But, here's an interesting read from the Mercury News on the potential impact of this ruling. Of course, I agree with it, so YMMV.
Permalink to Commenthttp://www.mercurynews.com/mld/mercurynews/news/opinion/11168527.htm
10. Alex in Los Angeles on March 21, 2005 03:43 PM writes...
Another story from the NYTimes highlighting the importance of the Judges ruling on trade secrets and narrow definition of public interest:
Permalink to Commenthttp://www.nytimes.com/2005/03/21/technology/21law.html?ex=1197781200&en=40d294ccfa312c66&ei=5035&partner=MARKETWATCH