January 13, 2005
I MENTIONED GM BEFORE, but now it's Apple that's having problems with the blogosphere:
The Electronic Frontier Foundation said yesterday it would defend bloggers' right to protect anonymous sources who disclosed that Apple would release a product code-named "Asteroid." A lawyer for the group said it's one of the first cases nationwide, if not the first case, that would address whether Web loggers, or bloggers, can protect confidential sources. Apple filed the suit last week in California.
I think that bloggers should have the same rights (no more, no less) that other journalists possess under applicable law. But I'm pretty sure that Apple wouldn't have subpoenaed bigshot journalists at all.
This has Bill Hobbs rethinking his computer purchases. He's looking at a Dell Inspiron 700m in place of an Apple. I have one of those, and as I noted earlier, I've been quite happy with it. But now when people ask me why I don't own a Mac, I can blame Apple's heavy-handed tactics.
UPDATE: Some readers think I'm being unfair to Apple when it was just "defending trade secrets." But Bigwig sent a link to what he says is the post in question, and it looks like the same kind of thing, only without photos, that GM was upset about. It's just a leak of a product announcement ahead of Apple's PR schedule; I guess that you could call that a "trade secret," but it hardly seems to justify such a vigorous response, and it makes Apple look bad to me even if (as isn't at all clear to me) they were entirely within their legal rights to do so.
Robert Tagorda has more thoughts.
ANOTHER UPDATE: Eugene Volokh looks at the California shield law and remarks:
So if a blog is considered a "periodical publication" -- which most blogs are (the exact "period" in the sense of interval between posts isn't fixed, as it is for a newspaper, but they are "periodical" in the sense that they publish repeatedly, and are usually expected to have new material at least as often as many standard periodicals) -- then it sounds like they have an open-and-shut case. We don't even have to ask whether bloggers are "journalists"; so long as they are "person[s] connected with . . . [a] periodical publication," they are entitled to disregard subpoenas that call on them "to disclose the source of any information procured while so connected . . . for publication in . . . [a] periodical publication."
I'm not at all sure that I approve of such privileges, but if they exist, then bloggers should benefit just as much as bigshots. Here, by the way, is an article from last month's New York Sun on how bloggers threaten special privileges for journalists simply be existing. Maybe -- or maybe they broaden the constituency for such privileges.
MORE: A contrary view:
And really, does a "free society" really depend on getting out Apple's latest product developments ahead of when they want it to get out? Not even a little. Even if PowerPage is a blog, do bloggers want to push this point as far as the EFF is doing and demand full press shield privileges? I'll tell them the same thing I tell trademark attorneys who keep push, push, pushing their ever-growing bundle of rights on the rest of the world: Be careful what you wish for.
Hmm. I want parity, but I'm not crazy about press shield laws. And an awful lot of what the Big Media folks report is just as trivial as Apple's latest product developments.
Meanwhile, Shannon Love says that I'm wrong to criticize Apple here.
MORE STILL: Here's an article from the WSJ on the lawsuit (free link). Excerpt:
It will be difficult for Apple to prove that Think Secret's coverage violated its trade secrets, says Robert E. Camors, an intellectual property lawyer at Thelen Reid & Priest LLP in San Jose, Calif. Trade secrets usually deal with the formula behind products -- not simply the details about the products' release, he says. Secondly, it would be difficult for an Apple rival to benefit from the news the site has reported. "No competitor can design and market a product in two weeks," he says.
Seems weak to me, too, but that's not my field.