Dvorak,

I wonder how the hell you managed to get hired to write here. Did you even read the verdict of the court and what that judge had to say? This is about leaking inside info, which is an offense, and not about free press. And where the hell did you pull the politics from? Never mind, I don't want to know. You make associations and draw conclusions out of nowhere. I could just as easily convince you that you are big piece of rotten, green cheese (probably a lot easier). It kinda goes like this: Dvorak is not red and he likes bread, therefore he goes well with bread and since cheese goes well with bread and is not red either, Dvorak must be cheese. Moreoever, he is certainly rotten, since he's so old. And since he makes no sense, he must be an alien. Aliens are often depicted as green, so Dvorak is a piece of green rotten cheese.

Besides all this, you need to learn to live by the law. If the judge said that Apple was right and the sites were wrong, then that's the law. Or do we need to listen to your politician theory instead? Geez. This is why some journalists need to be questioned about their profession.

After reading this ruling on a motion related to the Asteroid case, I don't think the judge actually ruled on the "is a blogger a journalist" question. He simply said no one, not even journalists, has the right to acquire and disclose trade secrets, when there is no public interest (like illegal activity) involved. (The exception is part of the UTSA.) So whether bloggers are journalists is moot. Whether these web sites are journalists is moot.

There may be an attack on bloggers but this ruling isn't part of it. There may be an attack on journalists as a whole, and this could be a part of it; although I do not believe that was Apple's original intention. Apple's intention is to find out who broke their NDAs.

I suppose the rulings could be interpreted as being against a free press, but I took them to mean that the journalistic cover of not revealing your sources was invalid since the information in question was obtained illegally. Basically the judge is treating the trade secret or information as a tangible thing with value, that was stolen and then "fronted" by the websites; the websites essentially received stolen property and then offered it to the public. Taken that way, it's no different than a pawn shop giving away a hot TV.

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"... Dvorak sees a ruling from a California judge declaring the Web sites as not being legitimate members of the press as a slippery slope that may have enormous consequences."

That's not what the judge ruled. The judge made no determination as to whether or not any of the defendants are journalists. From the ruling:

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"Whether he fits the definition of a journalist, reporter, blogger, or anything else need not be decided at this juncture for this fundamental reason: there is no license conferred on anyone to violate valid criminal laws."

The ruling stated that the law makes no exceptions, for journalists or anyone else, when it comes to trade secret misappropriation. In fact, no journalist is offered any legal protection when information concerning a crime is sought. Again from the ruling:

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"The journalist’s privilege is not absolute. For example, journalists cannot refuse to disclose information when it relates to a crime. As the Supreme Court in Branzburg stated:

'The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection.' "

From TMO:

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"I couldn't agree more, and intend to write more about the subject as soon as I can, but the short version is that whether or not the three Mac sites involved were right or wrong to publish information about Apple products in advance of their release, any ruling that declares online media as 'illegitimate' is simply devastating for the future of a free press."

You're agreeing with a false premise. There's nothing to agree with because the judge made no determination as to whether any of the defendants were journalists. There is nothing more to write about because the judge has not declared online writers "illegitimate".

Freedom of the press is a cornerstone of this country, but then so is the responsibility of the press to act in a legal manner.

At the same time a company's trade secrets also have legal protection. While some may consider them far less important we do live in an age where information flows at the speed of light and companies (and shareholders) can be damaged when individuals violate their NDAs.

I think that Apple is trying to walk a thin line, with their target being those that violated their NDAs, not the press itself. This raises another important issue: does the press have the right to protect those that they know are engaged in illegal activities?

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Guest wrote:
After reading this ruling on a motion related to the Asteroid case, I don't think the judge actually ruled on the "is a blogger a journalist" question. He simply said no one, not even journalists, has the right to acquire and disclose trade secrets, when there is no public interest (like illegal activity) involved. (The exception is part of the UTSA.) So whether bloggers are journalists is moot. Whether these web sites are journalists is moot.

There may be an attack on bloggers but this ruling isn't part of it. There may be an attack on journalists as a whole, and this could be a part of it; although I do not believe that was Apple's original intention. Apple's intention is to find out who broke their NDAs.

Thank you! It's good that somebody realizes this. Dvorak and even our dear Bryan Chaffin would benefit by re-reading the ruling. It doesn't nearly paint the "sky-is-falling" picture that these two journalists (there! I said it!) would have us believe.

Daringfireball.net has had some interesting commentary on this subject as well. I'm impressed with the author, John Gruber, as he consistently seems to "get" the issues that the majority of other online personalities seems to miss. This ruling is a case-in-point.

Personally, I think that rumor sites are fine, make for a good read, and build a certain level of anticipation around MacWorld. The problem with the sites in question is that they went way beyond rumor, and were publishing specs! Actually, if this lot were even remotely clever, they would have made their info far more vague, and reduce the amount of ammunition they were giving Apple Legal. I think that hubris clouded the better part of their judgement on this one.

Finally - someone else who seems to understand.

I'm a little disappointed that the TMO didn't bother to check on what the ruling _actually_ stated ...

Sure, Dvorak's a tool, but as for the disparaging remarks, well ... pot ... kettle ... black?

- iFranky

I have updated the column to reflect the issues about the ruling mentioned in the comments. I was actually at the hearing for the ruling, and knew the issues at stake, but apparently needed a kick in the butt to include this in my own column.

Thanks to everyone for keeping me on my toes!

Bryan
Editor
TMO

To heck with that; how about freedom from the press? I think if you put it to a vote, it would become a law not to witch-slap a CNN employee when presented an opportunity.

Seriously, the press does not have the freedom to violate the law (witness the New York Times plagiarism kerfuffles) or violate business contracts. Likewise, if the press has its freedoms, I should have the freedom to say that, in my opinion, the average journalist is about as useful as a lawyer in a foxhole.

"I think that hubris clouded the better part of their judgement on this one."

To publish an exact image of an Apple document that was clearly labeled is just like daring Apple to come after them.
Hubris? A better word could not be found.

Man, RC is going to have a field day with this. Assuming he can stop surfing his 'adult' websites and use his other, non lubricated hand, to type a post.

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Guest wrote:
"I think that hubris clouded the better part of their judgement on this one."

To publish an exact image of an Apple document that was clearly labeled is just like daring Apple to come after them.
Hubris? A better word could not be found.

Stupidity might work in a pinch

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FlipFriddle wrote:

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Guest wrote:
"I think that hubris clouded the better part of their judgement on this one."

To publish an exact image of an Apple document that was clearly labeled is just like daring Apple to come after them.
Hubris? A better word could not be found.

Stupidity might work in a pinch

How about "cojones?"

Thank you. I've said it before that it's one thing to ruminate and guess what Apple (or any company) might be up to, it's another to aquire and reveal intellectual property. I really dont understand why people find this so damn hard to understand. Thank you for posting this.

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Guest wrote:
Personally, I think that rumor sites are fine, make for a good read, and build a certain level of anticipation around MacWorld. The problem with the sites in question is that they went way beyond rumor, and were publishing specs! Actually, if this lot were even remotely clever, they would have made their info far more vague, and reduce the amount of ammunition they were giving Apple Legal. I think that hubris clouded the better part of their judgement on this one.

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Bryan wrote:
I have updated the column to reflect the issues about the ruling mentioned in the comments. I was actually at the hearing for the ruling, and knew the issues at stake, but apparently needed a kick in the butt to include this in my own column.

Thanks to everyone for keeping me on my toes!

Bryan
Editor
TMO

Respect to you for acknowledging your errors, sir, but I still have to question how you reached the conclusion that this was a "ruling that declares online media as 'illegitimate,' which Apple has sought"

The Judge specifically said that the standing of these people as journalists had no bearing on the judgement made.

Or are you referring to another ruling?

Also, why do you think that Apple has sought to do such a thing?

Regards,
Chris.

Hi Chris, and thanks for the note.

I was at the court hearing, and heard Apple's attorneys argue that the people at these Web sites were not proper journalists, and as such, are not entitled to protection. In addition, such claims are made in Apple's court filings.

That is what I take umbrage at, and it is any ruling in favor of Apple on that issue that I think is a major threat to the free press in this country.

Of course, I also heard Apple's attorney lie through his teeth and tell the judge that the story on Asteroid was highly technical, and yes he emphasized it that much, and was therefore only of interest to Apple's competitors. I literally had to suppress a snort of derision at such a bald-faced lie.

In any event, you are right that the ruling Judge Kleinberg issued does not address the issue of journalist/not journalist, but the potential for such a ruling somewhere in these proceedings exists, and that was why I phrased my comment the way I did. You left out the word "any" when you quoted me, which gives my sentence a much different meaning than the way you quoted it implies.

Bryan
Editor
TMO

Bryan,

Thanks for the response. Hearing more about what actually happened in court may help sway the opinions of a lot of people who currently have to rely on the ruling papers themselves and the masses of relatively uninformed rhetoric being thrown around at the moment.

Apologies for missing a little off the context of the quote, but your sentence seemed to imply that this ruling is included in the 'any', and I guess I wanted to clarify if that was your meaning.

Your revelations here about how Apple approached this are very different from everything I've heard so far, and I think would make a valuable contribution to the various discussions going on at the moment if you have the time to expand. Of course, we'd have to take it all as hearsay
Chris.

...sites, do you think there's any BIAS in how this case is portrayed?!?

The only site that has this case portrayed properly is Daring Fireball's. And, while you may have been present at the oral argument, it's what is written in the filing that is equally if not more important.

If a reporter gains access to a criminal activity, I have always wondered what ethical guideliness come into play. When I was a journalism student, 15 years ago, our legal courses all suggested it was great to report how crimes work, and we are protected in California from revealing our sources.

So...

If the "proper" journalist couched the story as "Oh, my, look what is leaking from Apple!!!" there would be a legal protection. If you can prove a story was about the crime, not the content of the crime, California's law protects you. They story is not about the criminal, but the crime.

Darn. The story was not about leaks at Apple. (*jk*)

This being said, Apple should not be challenging the status of Web media if they are the very tool most Web media outlets use. Media are changing, with many newspapers having dedicated on-line editions. Are those not newspapers if the stories never appear in a printed paper?

Car & Driver has long tried to show images of new prototypes circling test tracks. They now use all sorts of insider tips, special computer software, and the like to reveal these "trade secrets" before auto shows. What if Ford or GM wanted to fire the employees leaking to car magazines?

Of course, they wouldn't fire them... Ford and GM like the press. They love the attention. Heck, I bet most of the "leaks" are controlled -- just like from a government.

Apple could learn a lesson from this approach. Suing your fans, even if they did have information about a crime, is just not smart business.

Apple is playing this all wrong, offending their user base in many cases.

What happens when they track down these guys and find out it was none other than Steven P Jobs that started this entire rumour.

I think they're going to find out that the reports were emailed from the same IP as some posts to this forum under the pseudnym 'RealityCheck' ... and further investigation will reveal that RealityCheck is really Steve Jobs and Bill Gates' illegitimate love-child, Condoleezza Rice who has been operating a bizarre anti-mac campaign from an underground hideout in Monroe, Louisiana. She will be charged with 'un-American activities' and sentenced to a career in politics.

-iFranky

Brian, if one of the rumors sites got hold of Steve Jobs' medical records and decided to publish them, where would you stand on that? Should they have any liability for publishing obviously private information? I think most reasonable people would agree that we want a free press, but there are classes of privileged information that the press should not be free to disseminate just because it can. I don't want court enforced prior restraint on most such things, but I do think that after-the-fact liability is appropriate.

Young Nick dug his own hole. This suit was not just about his publishing of Mac Mini details. Lawsuits rarely are about the inicident they focus around. The suit was about 2 years of Young Nick blowing off Apple Legal when they sent him a C&D or request for information. Not just saying "no", but blowing them off. He is not just some loony with a blog. He has a business (organized as an LLC) and makes money by dishing up his dirt. His M.O. is textbook tortuous interference. I'll admit, I read his stuff just as often as everyone else (and take most with a grain of salt), but it doesn't mean he shouldn't be held accountable when he breaks the law or damages someone else.

A comment I made on another blog was about a neighbor of mine. He used to park his truck in front of his garage so that it was difficult for me to get my vehicles in and out of my garage and impossible for another neighbor to do so. This wasn't loading or washing, but parking for hours on end. In a fire lane, no less. We asked and asked and asked over the course of over a year that he not park his truck there. He blew us off. Finally, it pissed us off so much one day, we wrote a complaint to the association and had his truck towed. Guess what? He doesn't park there anymore. Apple basically had Young Nick's truck towed. Maybe he'll learn something.

-Brad
--
Brad Hutchings
brad@componentx.com

You should note that TS and AI are not being charged with the crime of revealing trade secretes. They are only being pressed to reveal the names of others who may be guilty of a crime.

boycot it, hurt it, or leak on it.

In so doing you are fighting for much more important things

TS is being sued for revealing trade secrets.

AppleInsider and PowerPage are being pressed to reveal names and communications with people who may have broke their NDA.

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Guest wrote:
boycot it, hurt it, or leak on it.
In so doing you are fighting for much more important things

Freedom of the press is not absolute. It never has been. It would do you good to learn what restrictions there are. If the press doesn't learn to voluntarily abide by those restrictions, then you will see that freedom be reduced over time.

Privacy laws, trade secret laws, and copyright laws are areas that bump up against the freedom of the press. Even then, you can publish, you just have to face the harsh consequences without whining.

My only issue with websites that act as a news source is whether they are accountable. If they act responsibly in their gathering of information and are willing to be held accountable for their actions and editorial decisions, then fine, they have a place in the new media.

Where they act above the law in obtaining privileged information for publication, and where that information is sensitive, such as is the case with a trade secret, then they must be ready to defend their actions, and that includes revealing sources.

Nobody should forget that a great measure of responsibility comes with dealing with anonynous sources. The danger of doing so is that the only agenda being satisfied may be the that of the individual providing the information, who may be acting under an urge to propogate industrial espionage or other self interest, in which case the information may not be provided in the interest of the public but in the interest of the individual. And that, friends, is wrong.

The courts of developed, democratic, free societies recognise the fine line between the media's role as the fourth estate and the parameters by which they should operate. This ruling, in my opinion, appears to be consistent with the need to protect the public from an abuse of privilege.

in summary, the sites are having to give up the names because the information was full of trade secrets.

Bryan Chaffin wrote: "If Apple can have this ruling stand, it is guaranteed that other big money, corporate, and political forces will go after other online publications, and that simply will have a chilling effect on this burgeoning thing we call the Internet."

GOOD! You can't just have people diving into the deep end of the pool without showing that they can swim. Many bloggers, fansites, etc. need to be aware of the consequences of their actions. They cannot just blindly put out on the internet ANYTHING they want to, even if they have good reason to believe it is true. True journalism requires fact checking, confirmed facts from multiple sources, and verified sources. If bloggers want to play the game they need to learn, understand and play by the rules as well.

It has been said many times in describing the First Amendment: Freedom of Speech does not give you the right to yell "Fire" in a movie theater, when you know there is none.

So go ahead and Chill Out the newest members of the journalistic community, they just might learn something.

No one, not even the New York Times has the right to publish someone's trade secrets. Protecting sources and divulging information protected under NDA's are two different things

While "journalist" may be a legal (and even constitutional) category in the US, I actually think it's a distraction here.

The issue isn't (or shouldn't) be about "free press", but about "free speech". Adding the tag 'press' should not grant someone extra rights above and beyond that granted to any other individual. If anything, the fact that the 'press' generally distributes their views to a much wider audience than individuals increases their responsibilities, not their license.

Basically, the question is "Is it legally and ethically acceptable to forward - for financial gain - trade secrets that you know are illegally obtained?" If Nick gained these trade secrets and then sold them to (say) Dell, would you consider that action illegal, or at least unethical? If yes, then how can it *not* be illegal / unethical for him to "sell" (advertising revenue) to the public at large? Otherwise, you have the bizarre situation that passing stolen goods to an individual is illegal, but passing them to many people at once is good practice.

Legally I cannot comment on, but ethically Judge Kleinberg is spot on. It's not about 'journalism'; it's about trafficking in trade secrets. And unless said trade secrets represent a threat to society ("whistleblowing"), they shouldn't be trafficked, whether you call yourself "press" or not.

Why does every reporter feel they have divine right to publish whatever they see fit to publish and when that is challenged, the Constitution itself is threatened? Let's start with their own private records.

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Bosco wrote:
Brian, if one of the rumors sites got hold of Steve Jobs' medical records and decided to publish them, where would you stand on that? Should they have any liability for publishing obviously private information? I think most reasonable people would agree that we want a free press, but there are classes of privileged information that the press should not be free to disseminate just because it can. I don't want court enforced prior restraint on most such things, but I do think that after-the-fact liability is appropriate.

What a tool. And what if one of the rumor sites published steve jobs secret plan to destroy the earth and they published that, what would you say then, other than you're a total f'n moron.

Let's stick to the case at hand and sit still in your short yellow bus long enough to follow along. The supreme court decided this issue. Car magazines are protected when they write about upcoming features of cars when those features are leaked, even under NDA. This is the same thing. Jeez, we've endured enough "Apple is the BMW of computer" analogies to see that it's the same thing (can't wait for all the mac zombies to start saying how now this doesnt apply). This judge is wrong. Apple is wrong. And the mac loyalists cant see past their blind conformity to actually voice out for the 1st amendment. Pathetic.

An printed opinion - unsubstantiated at that, does not make one a journalist.