Swad Posted May 27, 2006 Share Posted May 27, 2006 Apple loses court appeal against online journalists http://www.macworld.com/news/2006/05/26/appeal/ Apple Computer’s case to obtain communication between unnamed sources that allegedly leaked information to two Internet sites was dealt a blow on Friday. The judge in the State of California Court of Appeal 6th Appellate District agreed with lawyers for PowerPage and AppleInsider who argued that the confidentiality of sources for the online journalists were protected by the First Amendment. “Today’s decision is a victory for the rights of journalists, whether online or offline, and for the public at large,” said Electronic Frontier Foundation’s (EFF) Staff Attorney Kurt Opsahl, who argued the case before the appeals court last month. “The court has upheld the strong protections for the free flow of information to the press, and from the press to the public.” The EFF’s case held that the online journalists have the same right to protect the confidentiality of their sources as offline reporters do. Apple sued several unnamed individuals, referred to in court proceedings as “Does,” for leaking information about an upcoming product code-named “Asteroid” to the online news site PowerPage. To discover the identities of the Does, Apple subpoenaed PowerPage publisher Jason O’Grady’s ISP Nfox, demanding that the ISP turn over the communications and unpublished materials relating to the leak so as to reveal his sources. The trial court ruled that when a journalist publishes information a company claims to be a trade secret, this nullifies any constitutional protections for the journalist’s confidential sources enjoyed. The case has raised issues of what, exactly, constitutes a journalist, and whether or not a company’s right to protect its trade secrets outweigh first amendment protections. In rendering his decision Judge Conrad Rushing said, “we can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.” Apple representatives were not immediately available to comment on the story. Link to comment Share on other sites More sharing options...
jrrjrr Posted May 27, 2006 Share Posted May 27, 2006 I'm very glad to see that Apple lost on this one. It is clearly a win for the rest of us! Link to comment Share on other sites More sharing options...
Colonel Posted May 27, 2006 Share Posted May 27, 2006 W00T! Go AppleInsider! Link to comment Share on other sites More sharing options...
bofors Posted May 27, 2006 Share Posted May 27, 2006 I have not completely thought this out, but I have some concerns about trade secrets being aired for profit. To the extent that some of what the defendants are leaking are legitamate trade secrets, Apple's property is being stolen. Under the law of most State's, the theft of trade secrets is a serious crime. In no way does "freedom of speech" entitle anybody to disclose bona fide trade secrets. In rendering his decision Judge Conrad Rushing said, “we can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news. I'm sorry, the issue is not distinguishing "legitimate" from "illegitimate" news, but rather what is a bona fide trade secret or not. Trade secrets only exist to the extent that they protection under law, whether their publication happens to be newsworthy material or not is irrelevant. ".. a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas ..." Umm no... sorry... the First Amendment ( "freedom of speech") has nothing to do with the "identification" of good ideas. Obviously, good and bad ideas are equally protected, just as the Court's ruling implies that "illegitimate" news is equally protected as the "legitamate", because they may be indistinguishable. These are third rate Judges, had this been in a Federal Court of Appeals you would not see such half-ass and contradictory opinions being issued. Nonetheless, it is pretty scary to see how bad the legal system is. One more thing... Steve Jobs already said that Apple would take this all the way to the US Supreme Court, so this is not over yet, not even close. Link to comment Share on other sites More sharing options...
Swad Posted May 27, 2006 Author Share Posted May 27, 2006 All in all I think it's a pretty decent verdict. I agree with the last statement about the first amendment - it's a pretty obvious reference to Mill's "Marketplace of Ideas" and I think he makes a good point. If the court starts to say that there is a line between journalist and non-journalist, eventually every journalist loses his/her rights. Link to comment Share on other sites More sharing options...
bofors Posted May 27, 2006 Share Posted May 27, 2006 If the court starts to say that there is a line between journalist and non-journalist, eventually every journalist loses his/her rights. That is not the question. The issue is whether or not anybody (a journalist or not) has the right to publish trade secrets. The answer is clearly no, trade secrets are property and their publication is tantamount to theft or at least the willful destruction of property. To the extent that the defendants make a profit by rather exclusively engaging is this activity, their behavior is highly suspect. It is only occasions, like let's say Watergate or Enron, where the journalist (or whoever) is exposing government or corporate corruption in the public interest that they have the right to protect their sources above other legal considerations. Those matters have nothing to do with the case at bar. Link to comment Share on other sites More sharing options...
A Nonny Moose Posted May 27, 2006 Share Posted May 27, 2006 It's a trade secret issue. The journalists are disguising it as a free speech issue, but this is a trade secret issue. Expect Apple to appeal on this basis. Link to comment Share on other sites More sharing options...
bofors Posted May 27, 2006 Share Posted May 27, 2006 That's right and we can make this clear by just extrapolating a little bit. By the Court's decision it sounds like the following illegal enterprises would be legal simply by labling them as "news": StolenTradeSecretsAndIndustrialEspionage.com MarthaStewartInsiderTrading.com KiddiePornUncensoredDailyNews.com I am sure that the Court would have no problem finding a test for "illegitimate" news in those cases. Clearly, the publishing of illegal content is not protected speech. Really, the question here is not about Apple or "freedom of speech", it is why almost nobody is talking about the fact that the US legal system (and more generally the US government) is a pathetic failure. Link to comment Share on other sites More sharing options...
A Nonny Moose Posted May 27, 2006 Share Posted May 27, 2006 I wouldn't call it a failure of the legal system. Apple won the first case, which the other side appealed. It was a failure of the judge to not realize we're dealing with a trade secret issue as opposed to a freedom of speech issue. Link to comment Share on other sites More sharing options...
bofors Posted May 28, 2006 Share Posted May 28, 2006 First of all, while only one Judge may have written the decision, three of them formed the Appellate Court that made the decision. So, at this point, four Judges in two Courts have heard the case so far. Now let's consider the lawyers. Apple Legal does not mess around nor does the EFF, let's say each have had three attorneys working on this case for about 1000 hours each and that they would normally bill at about $250 an hour. So after spending about half million dollars on four Judges and six attorneys over some 18 months, they have gotten completely ass-backwards what we can figure out here in a few minutes? That is absurd. My point is that this is typical. The legal system is a joke, especially in State Courts with elected Judges. More generally, Americans systematically elect people that are unfit to govern. Since we are talking about California, contemplate its election of Arnold Swarchzenegger (or Ronald Reagan) as Governor. Was he even remotely qualified? The US population is an incompetent electorate and as a democracy the USA is a failure. Once one turns the TV off and start thinking for oneself, this becomes quite obvious. I suppose it also helps if learn enough about the law to realize that it is consistenly not being followed. Link to comment Share on other sites More sharing options...
Swad Posted May 28, 2006 Author Share Posted May 28, 2006 My point is that this is typical. The legal system is a joke, especially in State Courts with elected Judges. More generally, Americans systematically elect people that are unfit to govern. Since we are talking about California, contemplate its election of Arnold Swarchzenegger (or Ronald Reagan) as Governor. Was he even remotely qualified? The US population is an incompetent electorate and as a democracy the USA is a failure. It's like Winston Churchill said: Democracy is the worst form of government. Except for all the rest. Bofors, I think what you're missing here is that the judges didn't say the spreading of "trade secrets" is ok. Anyone - journalist or not - that publishes the recipe to Coca Cola is still going to be considered acting outside the law. What the court addressed in the above case is not anything regarding a distinction between true and untrue trade secrets. What it did decide is that, contrary to Apple's belief, there's no difference a blogger and a journalist. Now, within that framework of blogger=journalist, they're still held to legal standards of libel, slander, etc... it's just that they're to be treated as the same body. No one gave them a free reign. US democracy has its issues - and the judicial branch more than others - but it remains one of the best, if not the best, system out there. The judges were right on in this case. Link to comment Share on other sites More sharing options...
bofors Posted May 28, 2006 Share Posted May 28, 2006 It's like Winston Churchill said: Democracy is the worst form of government. Except for all the rest. Democracies require an educated, informed and rationale public, this is why they almost categorically fail in places like the Middle East. However, I do not believe that the USA passes for democracy either, rather it is something deludes itself into thinking it is democratic. To make my point quickly, democracy does not exist when election (or use of the legal system) requires a large amount of money. That is captialism, not deomcracy. Bofors, I think what you're missing here is that the judges didn't say the spreading of "trade secrets" is ok. Anyone - journalist or not - that publishes the recipe to Coca Cola is still going to be considered acting outside the law. Yes, I guess am I missing something. If it has already beem established that the defendants are acting outside the law, then why is this case still going on? US democracy has its issues - and the judicial branch more than others - but it remains one of the best, if not the best, system out there. That is like saying Microsoft Windows has its issues but is one of the best operating systems avaible. It is true, but meaningless. Windows is garbage, OS X makes that perfectly clear. According to Transparency International's 2005 Corruption Perception Index the use ranked 7.6 while Iceland, Finland, New Zealand and Denmark all scored above a 9.5: http://www.transparency.org/policy_researc...ndices/cpi/2005 Sorry, USA is not even close to being one of the best. Furthermore, US does not even try to improve. The ruling class of this country (principally lawyers) have no interest in changing the political landscape. They profit by exploiting the situation. Again to make my point quickly, why has the US Constitution not ever been overhauled in its 200 year existence? Correct me if I am wrong, but our society has change just a little bit in the last two centuries, has it not? Link to comment Share on other sites More sharing options...
Swad Posted May 28, 2006 Author Share Posted May 28, 2006 Bofors, this is good stuff for the Thunderdome - I'll start a thread on the topic tomorrow. Always up for a good discussion about America. In the meantime, back to bloggers... Link to comment Share on other sites More sharing options...
A Nonny Moose Posted May 28, 2006 Share Posted May 28, 2006 Just as a parting comment about the US, it isn't a democracy. It's a republic. There is a huge difference, but somehow it gets confused. OK, now back to trade secrets vs free speech. Link to comment Share on other sites More sharing options...
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