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Apple Against The Rest Of Us

The company that made media history with its classic "1984" Super Bowl commercial is acting suspiciously like an organization out of the George Orwell novel it was based on. Yes, I'm talking about Apple's attempts to force online publishers to disclose their sources of confidential information.

In case you haven't been following the story, in December 2004 Apple filed a lawsuit against unnamed individuals who had allegedly leaked information about an unreleased music hardware product (an audio interface for Apple's GarageBand music software) to several Mac enthusiast Web sites, including AppleInsider.com and PowerPage. Apple wasted no time subpoenaing Nfox, PowerPage's ISP, to gain access to the communications and records of PowerPage's publisher in order to identify the leakers.

In a ruling that sent a chill through both the blogging and online/offline journalism communities, Apple in early March won the right to force online publishers to disclose their sources.

But at the end of last week, the news was much better. On May 26, a California appeals court ruled against Apple, saying journalists have the same right to protect confidential sources whether they publish in online or traditional media. The verdict: California's "shield law" protects everyone engaged in news gathering--no matter what media ultimately publishes that news. The judges wrote in court documents that "We can think of no reason to doubt that the operator of a public Web site is a 'publisher' for purposes of this language."

Now I'm not an Apple basher. I love my Mac, and you can't separate me from my iPod, and I'm in general awe of the innovation and attention to detail that makes the experience of using an Apple product incomparable to other PCs or consumer electronics devices.

But there's always been a disconnect between the brand image Apple (successfully) conveys--that of an ultracool bunch of creative free spirits supporting a delightfully iconoclastic community of likewise free spirits--and that of the real Apple culture, which is secretive, litigious, and almost paranoid in its attitude toward the outside world.

After all, in the end this lawsuit is about much, much more than whether Apple product news had been divulged in advance of an official announcement. It has enormously broad implications for our society at large. As the Electronic Frontier Foundation (EFF), which helped defend the online publishers against the suit, pointed out, because all journalists--not just online ones--often depend on confidential sources to gather material, their ability to promise that they will protect those sources is absolutely essential to nurturing a robust and independent media.

Ironically, by its actions Apple is seeking to curtail some of the very freedoms that its staunchly loyal user base most believes in. Because there's no doubt that if Apple prevails in its lawsuit, the case law generated would be used in future cases to limit the rights of publishers of all kinds of content in all kinds of media.

Interestingly, the Superior Court's ruling against Apple specifically pointed out that online bloggers--particularly those covering the technology arena--are doing society an enormous service. Again quoting the court documents: "It is often impossible to predict with confidence which technological changes will affect individual and collective life dramatically, and which will come and go without lasting effects. Any of them may revolutionize society in ways we can only guess at."

As a result (said the court), the right for the public to get information that will allow them to anticipate and prepare for such technological changes is "the birthright of every human."

Strong words. But we need to hear them.

What do you think? Do you think this latest ruling was fair? Or do you think Apple acted perfectly within its rights to try and find out who had leaked its upcoming product information? Let me know.

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