Apple ruling strikes blow to online journalism

From the SMH

A US judge yesterday ordered three independent online reporters
to divulge confidential sources in a lawsuit brought by Apple
Computer Inc, ruling that they were not protected by the First
Amendment because they published trade secrets.

The ruling alarmed speech advocates, who saw the case as a test
of whether people who write for web publications enjoy the same
legal protections as reporters for mainstream publications. Among
those are protections afforded under California’s “shield” law,
which is meant to encourage the publication of information in the
public’s interest.

The reporters – who run sites followed closely by Apple
enthusiasts – allegedly published product descriptions that Apple
said employees had leaked in violation of nondisclosure agreements
and possibly the US Trade Secrets Act.

Santa Clara County Superior Court Judge James Kleinberg ruled
that no one has the right to publish information that could have
been provided only by someone breaking the law.

“The rumour and opinion mills may continue to run at full
speed,” Kleinberg wrote. “What underlies this decision is the
publishing of information that at this early stage of the
litigation fits squarely within the definition of trade secret.

“The right to keep and maintain proprietary information as such
is a right which the California Legislature and courts have long
affirmed and which is essential to the future of technology and
innovation generally.”

In December, Apple sued several unnamed individuals, called
“Does”, who leaked specifications about a pending music software –
code-named “Asteroid” – to Monish Bhatia, Jason O’Grady and another
person who writes under the pseudonym Kasper Jade. Their articles
appeared in the online publications Apple Insider and

Apple demanded that Bhatia, O’Grady and Jade divulge their
sources. The reporters refused to cooperate, saying that
identifying their sources would create a “chilling effect” that
could erode the media’s ability to report in the public’s

The online reporters could not immediately be reached for
comment today but have said they would consider appealing a
decision favouring Apple.

Apple Insider and PowerPage have hundreds of thousands of
monthly visitors and generate revenue through advertisements, but
they are a fraction of the size of more established publications
covering the computer industry.

The journalists have said Apple is trying to curtail their First
Amendment rights because they lack the legal and financial
resources that mainstream publications have to fight such
information requests. Other trade publications wrote about the
music technology after the reporters broke the story online.

“Apple is using this case as a desperate attempt to silence the
masses of bloggers and online journalists that it cannot control
but feels it can intimidate,” Jade, who has been writing about
Apple for more than eight years, wrote in an email earlier this
week. “Online publications are typically not backed by commercially
funded organisations – a weak spot Apple most certainly recognised
prior to filing its suits. The company hopes that it can stop or
chill the Apple-news industry with its threats.”

A colleague and I are writing a petition to Apple to drop the case and a number of other IT Journos have agreed to sign.Disgusting, and I’m gobsmacked at the direction the court has taken with this case.

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