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3/11/2005
08:01 PM
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Apple Wins Right To See Publisher's Correspondence

Judge affirms Apple's right to force online publishers to disclose their information sources.

In a ruling with broad implications for journalists and bloggers, Santa Clara County Superior Court Judge James Kleinberg today affirmed Apple Computer Inc.'s right to force three online publishers to disclose their sources of confidential information.

In December 2004, Apple sued several unnamed individuals who allegedly revealed details about a product being developed under the code-name "Asteroid"--supposedly a FireWire audio interface for Apple's GarageBand music software--to several Web sites including AppleInsider.com and PowerPage. The company has subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, to obtain O'Grady's communications and related records in order to identify the unknown targets of its lawsuit.

Apple also has received permission to issue subpoenas directly to PowerPage and AppleInsider for similar information, though these have not yet been issued and were not ruled on today.

"This is a broad-brush ruling that threatens journalists of all stripes," said Electronic Frontier Foundation legal director Cindy Cohn in a statement. The EFF said it will appeal to the California Appellate Court.

The ruling does not address the issue of whether or not bloggers are journalists. "Defining what is a 'journalist' has become more complicated as the variety of media has expanded," Judge Kleinberg writes in the ruling. "But even if the movants are journalists, this is not the equivalent of a free pass. The journalist's privilege is not absolute. For example, journalists cannot refuse to disclose information when it relates to a crime."

As the judge later states, "There is no license conferred on anyone to violate valid criminal laws."

Gary Weiss, managing partner of the Silicon Valley office of Orrick, Herrington & Sutcliffe LLP, says the ruling isn't a surprise. "The California Supreme Court made clear in Bunner that the 1st Amendment is co-extensive with trade-secret law," he says.

Bunner refers to DVD Copy Control Association v. Bunner (2003), a case in which the California Supreme Court ruled publishers could be prevented from publishing a trade secret under certain circumstances. The case was subsequently dropped in part due to the futility of trying to prevent the spread of the trade secret in question, software code necessary to decrypt DVD content for copying.

While it's debatable whether revelations about Apple's forthcoming products damage the company, Weiss says that Apple clearly convinced the court that the leaked information qualified as a trade secret.

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