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Apple loses blogging case

27B Stroke 6:

The Sixth District Court of Appeals on Friday roundly rejected (.pdf) Apple’s argument that the bloggers weren’t acting as journalists when they posted internal document about future Apple products. “We decline the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalis(m).’ The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here,” the court wrote.

Apple’s claim that subpoenaing the offending web sites – O’Grady’s Powerpage and Apple Insider – was the only way it could find out how leaked its secrets was also thrown out. Even better was this:

Apple alludes repeatedly to the notion that the publication of trade secrets cannot be found to serve the public interest because of the policy embodied in trade secret law itself, which presupposes that trade secrets possess social utility justifying special protections against wrongful disclosure. This is, of course, a false dichotomy. It is true that trade secrets law reflects a judgment that providing legal protections for commercial secrets may provide a net public benefit. But the Legislature’s general recognition of a property-like right in such information cannot blind courts to the more fundamental judgment, embodied in the state and federal guarantees of expressional freedom, that free and open disclosure of ideas and information serves the public good.

This is a significant victory against the idea that trade secret laws give companies carte blanche to subpoena journalists and others rather than conduct proper internal investigations into how information is leaked. It also supports the important principle that trade secrets laws don’t overrule the idea that “free and open disclosure of ideas” is, if anything, more important to the public good.

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  • http://www.jonathanbaldwin.co.uk Jonathan

    Apple’s methods aside here, I remain to be convinced that their case wasn’t a sound one. Imagine that you are working on the launch of a new publication aimed at a certain and currently under-served market segment. Someone in your organisation decides to leak that information to a blog devoted to news about tech magazines. Bang goes your ‘secret’, leading potentially to rivals launching spoiler publications quickly.

    In what way is the pubic served by having your ‘secret’ exposed? It’s not like we have a right to know what you’re thinking of doing, and at the moment I fail to see how gossip, which after all is what we’re talking about, is a legitimate excuse for revealing an organisation’s plans, whether they come to fruition or not.

    “Free and open disclosure of ideas” is one thing – as an academic I support that wholeheartedly – but I also reserve the right to decide for myself where and how my ideas should be made public.

    For Apple, a company with a great deal invested in R&D, they must at any point be engaged in what is often called ‘blue sky’ research, trying ideas out that might one day be useful, or they might be shelved, but then suddenly become useful again. It isn’t in the ‘public interest’ to demotivate any organisation to engage in research if such research is fair game for gossip that might damage that company’s standing, that analysts think would be a bad idea if it ever launched but which, in fact, Apple had no intention of being released in to the wild.

    I think the ‘public interest’ argument is pretty silly here and sadly it’s been lost behind a smokescreen of free speech and journalists’ rights to speculate based on private – not public – information. And also on who has the right to call themselves a journalist.

    I am interested in knowing what you’re thinking of having for dinner every day between now and next Christmas. So I have the right to know. Sounds silly, yes?

    Okay, I am also interested in knowing all your editorial contacts and every idea for an article you’re thinking of writing or pitching to them for the foreseeable future, just in case I can cobble together something more quickly before you – may be not so good in quality, but passable enough that every time you pitch the better product the editor says ‘sure, it’s better, but we just ran something like this’. After all, free and open disclosure of ideas is more important to the public good than your own commercial interests, isn’t it? ;-)