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iPontificateSue You, Sue Me Blues

by - May 5th, 2005

Well, Tiger is finally here, and this column was to be one of those, "So, you thought you knew all of the new features in Tiger, but..." pieces. But, no! It seems that there are other writers at TMO who aren't quite as "lazy" as myself. They don't spend so much time "asleep by the pool with a daiquiri straw dangling from their mouth". They are "dedicated" and "hard-working". And to top it off, they are "good writers". How I hate them.

So I have no choice but to go with another topic. Thanks a lot, Bob and Andy. Writing for TMO was a lot more fun when there were no "professionals" around. When "research" meant a twelve-pack and four hours of Marathon. (I'm talking to you, John Braun.)

Seriously, we used to just make things up as we went. Hell, I just figured out the difference between John Warnock and John Carmack.

You may have noticed that I haven't updated my column in a long while, but that should change as I have finally finished Neverwinter Nights. And since I take this writing thing so seriously, I feel it necessary to apologize to all of those readers who have missed my columns over the last few months.

Sorry, dude.

Since I last put shaky hands to keyboard there has been one particularly divisive story that just won't go away. And since my opinion on the matter is sure to annoy a lot of you, I thought, "Why not?"

I am talking about Apple suing a couple of webmasters who published information that Apple wanted to remain unpublished.

Note how I did not characterize these webmasters as journalists. It's not because I don't think they are journalists; I just don't care whether they are. And I don't care because it is utterly irrelevant to the case. It is simply a smokescreen created by the lawyers to avoid the real issue.

These webmasters are claiming that they are protected by the First Amendment, which affords them freedom of speech, and therefore the right to not reveal their sources. This is ridiculous. Their so-called sources are in violation of a non-diclosure agreement (NDA) with Apple; that makes the sources guilty of breach of contract. And that is actionable. Meaning they can be sued and be held liable for any damages they cause Apple.

Jeez, don't any of you people watch Judge Judy?

One might argue that these webmasters did not know that the information they were publishing was in violation of an NDA. Bull. Besides, Apple made them aware of that when they filed suit. So, at that point, these webmasters were no longer protecting their sources; they were refusing to reveal the identities of people who were accused of breaking the law.

Think about that for a second. If you knew your buddy had robbed the local Scarf 'n' Spew, and you refused to roll over when the fuzz applied the screws, you could (and likely would) be charged with obstruction, or even conspiracy. The First Amendment won't help you out in that situation. But who knows, maybe it will protect you from your new roommate, Butch, who wants to make you his wife.

But what about the First Amendment and its protections for journalists? For the record, the First Amendment applies to every single American, not just journalists. And as junior high government will teach you, freedom of speech does not mean you are free to say whatever you want. If what you say is slander, if what you print is libel, then you can and should be held liable. If what you say causes damage or injury, you can and should be held liable. You can't yell, "Fire!" in a crowded moviehouse, unless there really is a fire. Hey, I once yelled, "Movie!" in a crowded firehouse, and almost got my ass kicked. (Apologies to Steve Martin.)

In fact, the First Amendment has often been used as a defense for journalists protecting their sources and has often failed. Journalists have even been jailed for refusing to reveal sources who have been accused of breaking the law. You might remember this story from my own hometown, Houston. In it, the court ruled "the journalist privilege is ineffectual against a grand jury subpoena, absent evidence of governmental harassment or oppression." Note this quote, also from the above linked article: "In a 1972 landmark case that still stands, Branzburg v. Hays, the U.S. Supreme Court declined 5 to 4 to provide reporters a constitutional protection based on the First Amendment."

Even doctor-patient confidentiality, another bastion of First Amendment protection, fails when, for example, a psychiatrist becomes aware that a patient has plans to harm another. Doctors have been held liable when failure to report such information has led to a crime.

My point is that with every right, comes responsibility. (That's right, I saw Spiderman.) Freedom of speech does not allow one to say whatever they want, or refuse to provide information, if doing so causes damages to others.

If I hear another comparison between these webmasters and Woodward and Bernstein of Watergate fame, I just might take a hostage. Woodward and Bernstein were protecting "Deep Throat" (Gerald Ford, wink, wink, nudge, nudge, say no more), who at great personal risk was divulging illegal activity that the Nixon administration was involved in. Deep Throat, whoever he is, was a whistleblower, and whistleblowers are given protected status under the law.

The people who violated their NDA's were not exposing illegal activity and the webmasters who published the leaked information were simply trying to boost their bottom line by publishing trade secrets. Apple has a strong case that its own bottom line has been compromised by such activity, and has every right to protect itself when a violation of the law has led to those damages.

I have heard the argument that Apple may be alienating its greatest supporters by suing fansites, but I don't buy it. There are millions of visitors to Mac web sites, but just a couple or three webmasters being sued. Even if those sites have to go away, others will fill the void and there will be plenty of Apple fans queuing up to read them. Apple had to make a tough decision that weighed public relations against its financial bottom line. Those in charge obviously feel that the greater risk is the unlawful revelation of trade secrets. If I was a stockholder (I am not), I would expect Apple to do no different.

And that is the real bottom line in this case.

is an Idiot. He is the co-founder of IWS Interactive, a New York (and now Houston) based development company for Macintosh. Now he spends his time writing about, developing for, and getting clients to buy Macs. Oh, yeah, and he recently had a kid. So his days are filled with taking care of little Jack, then playing with his Mac. He wouldn't have it any other way.

You can send your comments directly to Gary, or you can also post your comments below.

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