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Hiltzik wrote:
"For some people, nothing less than reporting on U.S. foreign policy qualifies; for others, Britney Spears's latest amnio results are all that matter in the world. Under the Constitution, it's not up to a judge to establish the line."

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Hiltzik wrote:

"Apple claims that the disclosures deprived it of a competitive advantage. But the Web sites didn't reveal anything technologically groundbreaking or unique, on the level of the Coca-Cola formula...What Apple lost was its unilateral ability to control the publicity and marketing of Asteroid -- something with obvious value to the company, but hardly a genuine trade secret.

Hiltzik: "In fact, there are no constitutional provisions more categorical than the First Amendment guarantee of free speech. Intellectual property rights, on the other hand, are rife with conditions and qualifications..."

Yes, freedom of speech is absolute. Except for libel, slander, yelling "Fire" in a crowded movie theatre, ... Hmm, maybe there are limits.

The "arrogance" here lies in Hiltzik's belief that one's profession (or even avocation, in the case of bloggers) places them above any rules or judgment for their actions.

For the record, I think bloggers are entitled to the same rights and protections as journalists; I just don't happen to believe that journalists (or anyone else) are entitled to participate unchallenged in the theft of intellectual property.

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RetiredMidn wrote:
Hiltzik: "In fact, there are no constitutional provisions more categorical than the First Amendment guarantee of free speech. Intellectual property rights, on the other hand, are rife with conditions and qualifications..."

Yes, freedom of speech is absolute. Except for libel, slander, yelling "Fire" in a crowded movie theatre, ... Hmm, maybe there are limits.

The "arrogance" here lies in Hiltzik's belief that one's profession (or even avocation, in the case of bloggers) places them above any rules or judgment for their actions.

For the record, I think bloggers are entitled to the same rights and protections as journalists; I just don't happen to believe that journalists (or anyone else) are entitled to participate unchallenged in the theft of intellectual property.

this (the original scrawl by Hiltzik) is a badly titled opinion piece. I hope it's not trying to pass for journalism.

To claim that journalists are above the trade secret laws because of the USA's first amendment is absolute drivel.

To get the "rights of bloggers" thing into perspective, think of bloggers being journalists in the same way that the writers of a local club newsletters are journalists. Some may be regarded as serious journalists, some as hobbyists, some are just trying to inform like minded people or remind them to come to the next meeting. Are they all journalists? Is writing "Gossip" journalism? Just because some of the public are willing to pay to read what you write, is it journalism?

Bloggers have, potentially, a larger audience in a very short space of time if they manage to attract people to their site. Does a larger audience mean they are more of a journalist?

My favourite sentiment from the Judge was along the lines of an interested public does not equate to being "in the pubilc interest".

As for the self aggrandisement of the "tremendous respect and reverence bestowed on certified newshounds by a grateful public"? I hope his office has a wide door, or he'll get a big headache every time he tries to pass through it. Is he saying that only those who do get "the tremendous respect and reverence" bestowed on them "by a grateful public" can be called journalists? What about all of those writers I regard with disdainful abhorrance? Are they not journalists also?

So, who does make the distinction between journalists and non-journalists? Mr Hiltzik attempts to by calling some writers "wingnuts and noodniks" - obviously, these are well thought out legally defensible terms that we can all depend on to help us in our definition of a journalist. If I'm a noodnik, then I'm not a journalist. Is he right? I guess it's up to a judge or a lawmaker to decide. Oh, damn, they already have, a legal definition of journalist already exists. If you don't like it, follow the legal procedure for getting it changed, but don't attack those who use it.

Oh, and what in the name of my aunt fanny is all this about Apple having an "undisputed right" to protect its trade secrets? That right has been disputed by the publication of "articles" by "journalists" about an unreleased product that Apple regarded as a trade secret - THAT'S WHAT THIS IS ALL ABOUT. THAT RIGHT IS WHAT IS BEING DISPUTED. Hiltzik should go and take a course in English, or get his dictionary out and use it.

As I said, Aaaaarrggghhh just about sums it up.

/rant.

Mr. Hiltzik is wrong on a number of issues but I am concerned with two statements:

When mentioning the Coca-Cola formula as a trace secret he was correct but trade secrets are not limited to formulas, schematics or software algorithms. Trade secrets also encompas future strategy, marketing plans, or anything else that the company uses to make a profit that is unique to that company or that the company has not publically released.

As for the "Under the Constitution, it's not up to a judge to establish the line" he is again incorrect. If the matter is brought up in a court of law it is up to the judge to decide. That is how our government works, the legislative branch makes the laws, the executive branch approves them, and the judicial branch enforces them and determines their constitutionality (no that the definition of a journalist is necessarily a constitutional matter). At the very least the judge (or some court appointed mediator) must work with the two parties to come to a mutially acceptable definition of, if that cannot be done, define it himself/herself. It may not be the best system but it is the best one we have at this time.

As for suing the web sites, I am not sure about that as I have not read the actual complaint but I would think the main target of any company's aggressioin in the case of the leak of sensitive information would be the source. And if the source profitted from the disclosure of that information (or even if the source did not) determining the actual damages and recovering them from the offending parties.

If a web site would be found guilty in this case I believe (IANAL) that the site would have to be found guilty of "contracting" the source or somehow directly enticing the source to commit this (possibly) illeagal act.

Bryan, it's "Daily Herald."

Jon

That was me up there. Apparantly, my computer doesn't want to keep me signed in.

Jon

""...The truth is that the only useful way to define "journalist" is functionally: As anyone who hunts down suppressed, overlooked or misunderstood information of public interest (even trivial interest) and presents or explains it to an audience."

Among other things, that would mean I should be considered a journalist if I explain to someone on a streetcorner that lemmings don't infact commit suicide.

Maybe Hiltzik should try thinking with his brain instead of his ass.

Insider trading is considered illegal. It involves someone on the inside leaking information that affects the outcome of the value of the stock and or company. Apple wants to know who inside thier company is leaking the info, the blogger's have that info.

What this article, as many others written by journalists have on this topic, is attempt to cloud the issue by bringing up the First Amendment, and its application to journalism.

What they gloss over is that time and again the courts have ruled that journalists do NOT have complete carte blanche to protect the identity of sources. If the information of the news article is information which was gained by illegal means, then the source is not protected by law, UNLESS it can be shown that the source provided significant public benefit in revealing information to journalists.

In the case of Apple's lawsuits, they are after information to identify one or more individuals suspected of violating NDAs. Since a law has been broken, and there is reason for Apple to pursue the identity of the individuals involved.

The issue before the courts is whether the knowledge imparted to the blog sites was enough in the publics interest to warrant the violation(s) of law involved. This is clearly stated in the court's opinion, when they refused to address the subject of defining journalism. Whether the blog sites are journalists is irrelevant to the issue. The issue is whether the public's "right to know" Apple's upcoming products outweights Apples right to enforce their NDAs. Michael Hiltzik seems to argue that the number of zits on Britney Spears face is of enough public benefit to warrant full journalistic protection of sources. Judge Kleinberg, in a very clear ruling, thinks not.

Nor do I.

It seems to me that commentators' opinions on this case have depended upon the outcome, rather than the legal issues. If the judge had ruled against Apple, Hiltzik almost surely would have hailed the decision and claimed that the judge did have the right to make such a decision. Since the decision went the "wrong" way (according to Hiltzik), it's "obvious" that the judge didn't have the authority. I'd ask Hiltzik just WHO had the "authority" to make the decision? There was a lawsuit filed and motions were filed in support of and in opposition to the suit. Who ELSE but a judge should make such decisions? These are decisions on matters of law (what the law says and how it applies), not on matters of fact. In the US legal system, at least, matters of law are the province of the judge, while matters of fact are the province of the jury (if there is one). The judge didn't rule that Apple had been damaged nor to what extent. He didn't say that some Apple employee had violated his/her NDA. Those are questions of fact. He decided the legal questions (matter of law) that were presented to him. If he had not made a decision, he might have been in breech of his oath and ethics. The party who was ruled against can appeal a decision on a matter of law and they may well do that.