Think different: Journalists, read the bloggers' amicus brief in Apple v. Does

Children have nearly cured me of swearing. In public. But sometimes only profanity will serve. Yesterday's performance by Apple Computer comes to mind. This post is designed for non-technology journalists who continue to hold bloggers at an arm's distance. I'm here to recommend you become familiar with the performance of a company where the formerly fruity aroma has grown overripe.

Apple's perfomance stinks and Ben Franklin is still right. No, I'm not talking about the gasp-inducing confirmation by Apple Founder Steve Jobs that the company will in fact use Intel chips in Macs. I'm talking about the fact that even though CNET broke the story of this major trade secret, a secret so hot that John Paczkowski lead his blog this morning with the headline, "Wells Fargo? Yes, I'd like to stop payment on a check," not a single peep has been heard about any Apple plans to sue CNET or Reporter Stephen Shankland for revealing a trade secret.

After all, just last Thursday, the Sixth District Court of Appeal said they wanted to hear more from Apple and Jason O'Grady. Jason O'Grady is one of the bloggers being sued by Apple in Apple v. Does, in which a Santa Clara County judge ruled in March that nobody (blogger or journalist) can publish info provided by lawbreakers. Specifically, Santa Clara County Superior Court Judge James ruled that the Does in question--bloggers Monish Bhatia, Jason O'Grady and a third blogger with the pseudonym Kasper Jade--were not protected by the First Amendment when they published trade secrets obtained from third parties about an unreleased Apple product code-named "Asteroid." And they wouldn't have been if they were reporters either.

Cough up your sources, Kleinberg told the three bloggers in March, as many of you know. According to Kleinberg, "no one has the right to publish information that could have been provided only by someone breaking the law," reported The AP's Rachel Konrad. In other words, as Professor Eugene Volokh explained, Kleinberg leapfrogged the distinction between bloggers and journalists altogether.

Fast forward to last Thursday, when O'Grady got the thumbscrews again. Blogger J.Craig Williams wrote,

"On Thursday, the court agreed to consider whether Apple Computer can subpoena records kept by the ISP [internet service provider] for O'Grady's blog PowerPage that published/posted information about Asteroid. Apple claims the information posted was a trade secret. The 6th DCA issued an order requesting more briefing and giving the parties the opportunity to request oral argument. That's one postcard you can expect will be sent in..."

The preceding paragraphs provide the essential backstory to Dan Gillmor's post late-Friday on the Apple+Intel rumor:

"I wonder (assuming it's true, and it now appears that way) whether someone inside Apple leaked the news to CNet. Will Apple will sue them, too, the way it's sued other journalists who've leaked news Apple wanted to keep secret?"

Ernie Miller was slightly starchier in his trackback on Gillmor's blog:

"So, where's the friggin' lawsuit against C|Net to find out who leaked? Where is the judge who is going to claim that what C|Net published was "stolen property"?

"Will someone please explain to me the difference between what C|Net has done and what happened in Apple v. Does?"

There is one important difference that I can immediately discern: Apple doesn't want to sue CNET, the product review powerhouse, respected tech news provider and driver of kazillions of user eyeballs. But Apple could.

Apple's hot pursuit of the personal press is one of the reasons many bloggers (who are also journalists and academics) placed their names on the 32-page amicus brief filed in Apple v. Does. In the brief, author Lauren Gelman, Associate Director of Stanford Law School's Center for Internet and Society, urges the court to:

""[A]dopt a test that will not impede journalists' use of the Internet to report news, by limiting their constitutional protections when they publish there. They ask that this court to find that people who publish in online news sources are subject to the same constitutional protections under the reporter's shield as reporters who publish in traditional media, and urge this court to adopt the functional test articulated in Shoen v. Shoen, 5 F. 3d 1289, 1293 (9th, 1993), which asks whether the reporter had 'the intent to use materials -- sought, gathered or received -- to disseminate information to the public and [whether] such intent existed at the inception of the newsgathering process.'"

So read the brief. Visit the Electronic Frontier Foundation's FAQ on the case.

That Ben Franklin, he's hotter than ever. Thinking different will require thinking the same way.

Comments

[Nathan Ziarek]

See I see it differently all-together. The Wall Street Journal actually led with the news at least a day before cNet had anything. My thinking is that Apple deliberately leaked the information to get people talking about it. Jobs loves the "wow" effect, but I don't think it would have gone over very well at his keynote if that was the first time we had ever seriously considered it. I think Apple isn't suing because it is what they wanted. I don't, however, disagree that they would treat a media powerhouse like CNet or the WSJ differently than ThinkSecret or PowerPage. In this case, though, in Apple's eyes, I think the two events are drastically different. Apple wanted the information out there for people to chew on and WSJ provided a "respectable rumor" that didn't kill Jobs' wow effect completely and allowed the idea to sink in enough that he wasn't pelted by iPods.

Of course, I've been wrong before...

[Cameron Hayne]

Apple sued ThinkSecret etc. to get information.
It is quite possible that the reason they aren't suing CNet & WSJ because they already know who leaked the story - hence no need to sue.

[B Stur]

Most people don't quite get it. In Apple V. Does, Apple wants to find out which person broke their confidentiality agreement about a specific product which Apple wanted to keep confidential. They most likely want to find who leaked it so they don't work with that person again. Would you want someone working for you who broke your trust (as well as broke their contract)? Since the Apple moving to Intel story isn't a specific product, there are probably not any non-disclosure agreements involved. As well as the buzz created around the story wouldn't sink a perhaps "not ready for prime time" product. Apple isn't sueing to limit free speech, they want to find and hold responsible, the person who broke their non-disclosure agreement. Don't ya think?

[mike]

I think the whole thing sucks that Apple is suing the Does'.

I am not a lawyer, but the distinction between leaking Astroid and switching chip suppliers is that Asteroid is a new product yet to be released (at that time) where as the chips are already out there in production and there is no trade secret being disclosed about the internals etc of the chip. The only information being "leaked" is that they a switching suppliers. I think there is a distinct difference between leaking a yet to be released product and leaking the news that they will switch to a different supplier of a already produced chip(set). MHO.

[Coke]

'Since the Apple moving to Intel story isn't a specific product, there are probably not any non-disclosure agreements involved.'

I would wager that any WSJ or CNET source who had knowledge of the Intel announcement was violating their employee NDA by disclosing the information to the reporter.

[Rob]

Seriously ppl, a company like Apple is way ahead of the game when it comes to what consumers see and hear about the company and its products. Everything Jobs does, including leaking stuff to the media before the Intel announcement is 100% predetermined by him and his marketing team. These days Apple is a first class marketing company if not much else. The hype you have all experienced is pure marketing hype.. even all the bits that appear to be journalism... these 'journalists' never even left their seats.