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ATPM 11.04
April 2005



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by Wes Meltzer,

Apple v. Public Opinion

Can our favorite computer manufacturer force bloggers to release evidence about their sources for leaks—and will it benefit them?

As background to this column, you might want to read my discussion of Apple v. Does from February. I originally promised that this column would come in March, but very little happened ’til early March and I wanted to write about the Super Bowl commercials.

At any rate, the first part of my question has already been decided: Judge James Kleinberg, of Santa Clara County (CA) Superior Court, ruled March 15 that Apple can subpoena Power Page’s e-mail in the first round of their lawsuit against sources who gave information to Apple Insider and O’Grady’s Power Page, and in a preview to their separate suit against Think Secret.

The media and a number of big-name bloggers have gotten quite tangled up in the oft-cited defense that blogs are like newspapers and, as journalists, the bloggers’ sources’ identities are protected under California’s shield law.

Kleinberg’s decision (185K PDF), of course, sidesteps the entire issue, ruling that the state’s trade secrets law trumps any potential shield-law protections. Moreover, he explains,

Easily overstated in its power, “[t]he description ‘shield law’ conjures up visions of broad protection and sweeping privilege. The California shield law, however, is unique in that it affords only limited protection. It does not create a privilege for newspeople, rather it provides an immunity from being adjudged in contempt.

Based on the language and the facts presented, it is far from clear that [Jason] O’Grady [of O’Grady’s Power Page] qualifies for relief from the subpoena on the grounds advanced. Whether he fits the definition of a journalist, reporter, blogger, or anything else need not be decided at this juncture for this fundamental reason: there is no license conferred on anyone to violate criminal laws.

In other words, the question of whether bloggers are journalists, at least under California law, is irrelevant. (And the shield law doesn’t protect journalists from violating laws anyway; it merely protects them from being held in contempt of court.)

That did not stop the endless discussion, of course. Dan Gillmor, who as an ex-journalist should know better, gets confused on the ruling and insists Kleinberg’s ruling threatens online journalism. Jacob Weisberg at Slate is confounded, in passing, by The New York Times and suggests that California law protects journalists and the case is about bloggers being excluded from it. The Blog Herald gets twisted around and thinks bloggers will be emboldened by the decision and will seek out more trade secrets, which makes no sense to me. Donna Wenworth, at Corante’s Copyfight, insists that the case is about a reporter’s right to the First Amendment, which is a nice sentiment, even if the case does not appear to have any outstanding Bill of Rights implications. As a nice balance, Rob McNair-Huff at Mac Net Journal manages to get confused about the shield laws and still see the big point.

What’s that big point? To my eye, Apple is losing the war for public opinion, even as they’re winning the battle over their sources.

You will not see me excuse people who break laws. There’s no excuse for violating trade secret laws, even if you think the things that the company claims are trade secrets really are not, unless there is some greater purpose than merely a desire for information. What Nick Ciarelli, Jason O’Grady, et al. did is in violation of the law, and our protections for lawbreakers who provide information tend toward a test of whether the public is better off with the information than without it. In this case, I have yet to hear a compelling argument that the public benefits one way or the other, and in that event the injured party, Apple, has the trump card.

John Gruber at Daring Fireball, ATPM staffer Chris Turner who writes Retrophisch, and Timothy Hadley at Math Class for Poets all get this. Gruber, who I quote so often he might be writing my columns for me, says of the decision:

So, yes, there’s a First Amendment argument that these sites have the right to publish this information, and to keep their sources confidential—but these rights are outweighed by California’s trade secret statutes and established case law.

Rights are not absolute. Recall Justice Oliver Wendell Holmes: “The right to swing my fist ends where the other man’s nose begins.” What the court is saying here, more or less, is that the right to publish information about Apple ends where their trade secrets begin.

This is the aspect of these cases that has the potential to truly matter. There is definitely a case to be made that trade secret statutes should not outweigh First Amendment rights. Getting trade secret laws ruled unconstitutional would make for, needless to say, a landmark case.

Hadley is less clear, and sides with the defendants, but he reminds us that Apple is suing because they have perceived damage. He writes:

My first impression is that Apple likes word-of-mouth and media hype for its products, but it really wants to be able to control that hype itself…. In some circumstances, Apple might want to conceal new product plans because it wants the maximum lead time in the market before competitors could develop a competing product.

Lastly, Chris reminds us that because this hurts Apple, the company has every right to seek damages—and that “something punitive enough to ensure they will discontinue this nonsense” should be ample to prove the point.

I admit that I’ve found the case disconcerting. Apple Computer, Inc. has a reputation of being at the center of a gigantic cult-like universe. We Mac users are fanatics, and ATPM is Exhibit No. 1, a magazine built solely on our readers’ twin needs: information and worshipful devotion.

To my eye, these webloggers/journalists, people like O’Grady and Ciarelli, are the newest generation of the vanguards at the frontier of Mac worship. They’re the fuel for the endless speculation and hype. Obviously, Icarus-like, they got too close to the sun, but without the information they (illegally) provide I don’t think you’d see a wealth of, well, Mac blogosphere. Would I be able to write what I do without the constant speculation about new product releases? It would be the John Gruber Show.

My worry seems to be fairly common. McNair-Huff and Gillmor put it best, but I’ve seen this all over. Can Apple maintain good will with its customers without its slavering vanguard of fanatical fans getting the information in advance?

I’m not sure. They’re forcing me to do real reporting, rather than just scratch at the surface of their rumors, that’s for sure.

And Now, For Something Completely Different

  • Speaking of Apple rumors, we now know the iPhone is going to be just a Motorola phone with iTunes onboard. No surprises there. But wait! First it was going to be released at some point in the future, then this month at CeBIT, then it went missing from CeBIT, then it was back again—but for M3 in Miami, not at CeBIT. The Street says it was all about skittish carriers and revenue streams, but Reuters says Motorola held off because Steve Jobs wanted to have the phone ready for sale when they announced it. Well, if this thing works out, I might consider switching back to Motorola phones. (Hint to Sony Ericsson: if your joysticks lasted more than six months, I wouldn’t be buying a new phone just yet.)

  • On the topic of yet more Apple rumors, there’s a rumor floating around that Apple is looking into a subscription music service of its own. I’ve panned the idea before, and frankly, I don’t have the money (or the music-buying prowess) to commit to another monthly bill, but I doubt Apple is consulting with me. Engadget and AppleInsider would sure be happy, though.

  • Jef Raskin was a pioneer for Apple. Without him, we would have no Macintosh—and I might very well not be sitting in my living room typing this on my lap, if not for his visionary sense of an easy-to-use all-in-one portable computer. Thank you, Jef. He passed away February 26, and was remembered fondly by The New York Times, DigiBarn, and, fascinatingly, Alex Soojung-Kim Pang. Goodbye, Jef. You changed the world.

  • As best I can tell, this supposed hubbub was mostly on Mac mailing lists and bulletin boards, but Kirk McElhearn jumped in head-first, writing a requiem for FireWire. John Gruber refuted the idea and the vehement reactions, twice, first saying that it makes perfect sense for Apple since most iPod buyers are PC users without FireWire, and later saying that the other reason for the hullaballoo is that Mac users are always afraid they’re going to get jilted in favor of the iPod. I’m not sure I buy that, though—FireWire is still better, and when my dad bought an iPod (and then one for my mom, and then one for my sister), I encouraged him to get a FireWire card rather than a USB 2 card. Poor FireWire. It was such a great technology.

  • Do things ever really change? Not at Apple, apparently. Just because Classic Mac OS is dead doesn’t mean the legacy operating systems are gone: DrunkenBlog shows us fun screenshots of Interface Builder past and present. Yup, like fraternal twins.

  • In the world of real-world computer analogies, there are an almost infinite number of comparisons. Evan DiBiase at MacAndBack(AndBack) comes up with a new one:

    [I]f Windows were a butler, he’d…do the things that you asked of him only according to some internal black-box logic that only occasionally worked. OS X would be your classic Jeeves, however: not without fault, but well-trained in its field, with a strong pedigree and even stronger performance.

    (And Evan noticed me! I’m flattered—all I did was write about him.) He also provides us with a nice discussion of the Google Desktop Search, now out of beta, and how he could choose Windows and have that; or he could choose OS X, and get 30% more integration (roughly).

  • Are the Apple mini-stores worth all their space and vaunted hype? ifo Apple Store doesn’t think so; they aren’t bringing Apple to new markets, and you don’t want to think about how much they cost. If they open one in Chicago I’ll offer my opinion…

  • Walt Mossberg, the Wall Street Journal’s tech mack-daddy likes, well, the Mac mini. He calls it “one of Apple’s smartest business moves” and, as someone who would love one, I agree.

  • The Sudden Motion Sensor in the new PowerBooks, which works like the IBM models to stop the heads of a disk drive if the Sudden Motion Sensor detects, yes, “sudden motion,” can do lots of interesting things. It sounds like an accelerometer and an orientation sensor combined. So, one can find, at Kernelthread, a marvelous discussion of how to use the SMS to do software manipulation. Now, that would be some mouse: just push the computer around on the table.

  • What—or who, like the old joke—do I have to do to get this kind of coverage? Jason Kottke, probably the most famous Mac user online, managed to wrangle a profile in Newsweek after he went pro. Never mind the bad headline; he’s nothing like Matt Lauer. Jason is now making his entire living off of micro-patronage, so, best of luck to him!

  • Is Apple colluding with Gracenote to steal your privacy? Engadget says no, and I agree. I wouldn’t have bothered covering this, but it was too much FUD to ignore. Unfortunately for MSNBC, who ran the original article, Gracenote doesn’t store IP addresses anyway.

  • Because no good deed goes unpunished, Apple is now being sued for copyright infringement both for the iPod and for iTunes. Something about a patent for DRM similar to iTunes’ and a patent for something that sounds a lot like an iPod. But the details just aren’t there yet. If there’s anything to this, expect a settlement shortly.

  • I reviewed Ranchero Software’s MarsEdit in February, and I’m angling to review NetNewsWire too. (I’ll play Bill O’Reilly: flood my editors with letters until they let me, and not that loser Eric, do it! … Heh. Please don’t.) DrunkenBlog one-ups me, though, with an interview with the man (and woman) behind the software, Brent and Sheila Simmons. It’s a great read.

  • How did the iPod outdo the Walkman? Apple didn’t have two arms going separate ways, the New York Times says.

  • Have you heard about this new, great way to boot OS X on your PC? No, it’s not called, “Buy a Mac mini,” at least, not officially. A company called Maui X-Stream, a Hawaiian outfit better known for their video streaming software, says users can get up to 80% of native performance on a PC using their product, CherryOS. Lots of people who worked on PearPC suspect a hoax, and DrunkenBlog compiles all the evidence and concurs. I’m going to withhold judgment until such time as CherryOS actually ships, but the evidence doesn’t look good.

  • You may remember, from my addendum to Bloggable 11.02, that Graphing Calculator has a fascinating story involving trespassing, free labor, and other lawbreaking activities. That story made it into an episode of This American Life on March 11. Give it a listen…and support your local NPR station (or mine, KOPB) if you don’t already.

  • Could Microsoft and Apple be any more different? Apple will fix strange noises that certain models make under rare circumstances and publish them in their release notes for OS updates. MS tells us, of the Office 2004:Mac 11.1.1 Update: “This update addresses several issues with Microsoft Office 2004.” Wow. Thanks, guys.

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Reader Comments (1)

Edward Donovan · August 25, 2012 - 01:45 EST #1
Wow, you're right. Microsoft didn't post ANY information on the update.

Oh,wait, maybe they did. But it's so buried in their website that you have to actually run a search for it instead of it showing up on the main page.

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