By Declan McCullagh
Friday, April 21 2006 11:23 AM
URL: http://www.zdnetasia.com/news/business/0,39044229,39353413,00.htm

A California court in San Jose on Thursday is scheduled to hear a case brought by Apple Computer that eventually could answer an unsettled legal question: Should online journalists receive the same rights as traditional reporters?

Apple claims they should not. Its lawyers say in court documents that Web scribes are not "legitimate members of the press" when they reveal details about forthcoming products that the company would prefer to keep confidential.

That argument has drawn stiff opposition from bloggers and traditional journalists. But it did seem to be sufficient to convince Santa Clara County Superior Court Judge James P. Kleinberg, who ruled in March 2005 that Apple's attempt to subpoena the electronic records of an Apple news site could proceed.

"Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, (the Macintosh news sites) are doing nothing more than feeding the public's insatiable desire for information," Kleinberg wrote at the time.

The Electronic Frontier Foundation, which is representing the Apple news site PowerPage.org, is hoping the appeals court will pull the plug on a subpoena that could yield details about who leaked information about a FireWire audio interface for GarageBand that has been codenamed "Asteroid." The subpoena is on hold during the appeal.

"The California Court of Appeals has a long history of protecting freedom of the press," Kurt Opsahl, an EFF staff attorney who is arguing the case, said on Wednesday. "We're hopeful they'll continue to do so."

In the lawsuit, filed in late 2004, Apple is not suing the Mac news sites directly, but instead has focused on still-unnamed "John Doe" defendants. The subpoena has been sent to Nfox.com, PowerPage's e-mail provider, which says it will comply if legally permitted.

Even though the AppleInsider site also published information about the Asteroid device, it operated its own e-mail service and would have been able to raise a stronger First Amendment claim if it had been sent a subpoena. (In a separate case, Apple directly sued another enthusiast site, Think Secret, alleging that it infringed on Apple's trade secret in soliciting inside information.)

The types of articles about Apple that Jason O'Grady, PowerPage.org's creator, posts every few days don't seem that different from those that many news organizations produce. They include reports on Apple's patent disputes, benchmarks of software performance, reviews of software and news about upcoming products that have not officially been announced.

Being the first to publish news about forthcoming products--as long as the information is accurate--is generally regarded by journalists as a coup. CNET News.com was the first to report, for instance, that Apple was switching from PowerPC processors to Intel chips last year. (Full disclosure: O'Grady has begun writing a blog for ZDNet, also owned by CNET.)

Free speech vs. trade secrets...

A coalition of bloggers, law professors and journalist-rights groups has filed a legal brief (click for PDF) siding with the EFF, saying that "the medium though which reporters communicate is simply unrelated to the Constitutional mandate of the protecting the free flow of information and the freedom of the press."

For purposes of this appeal, Apple has agreed that O'Grady can be viewed as a reporter. But the coalition wants the California appeals court to go even farther and say that bloggers and other online writers "may invoke the protection of the newsgatherer's privilege" of protecting their sources when they act as journalists.

The brief's signers include The First Amendment Project, Reporters Without Borders, and Gawker Media. The Associated Press, Hearst Corp., the Los Angeles Times and other major media companies filed their own brief arguing that the Mac sites should not be forced to divulge their confidential sources.

Free speech vs. trade secrets
To Apple and its allies, though, the case is about something much more straightforward: how to protect intellectual property rights in the age of the Internet.

"The First Amendment cannot trump a property right," said Ian Ballon, an intellectual property attorney in the East Palo Alto, Calif., office of Greenberg Traurig.

As long as the courts agree that Apple is protecting a legitimate trade secret, Ballon said, intellectual property should trump free speech rights. "The law is certainly on Apple's side on this issue," he said.

A slew of other large software and hardware companies have lined up behind Apple. Intel and the Business Software Alliance (which counts Microsoft as a prominent member, along with Adobe, Apple and Symantec) said in their own filing that trade secret laws "are vital to the health of California's high technology businesses" and that there is no public interest in having trade secrets "stolen and plastered on the Internet."

The Information Technology Industry Council took a similar position, saying that EFF has "greatly exaggerated" the threat that the subpoena poses to "legitimate First Amendment interests." It involves no wrongdoing by government officials, or muckraking, or corporate waste, but simple disclosure of trade secrets, the council says.

Intel is scheduled to participate in Thursday's oral arguments, along with the actual litigants, an attorney for mainstream media organizations, and the Bear Flag League--a group of conservative bloggers that is siding with PowerPage.

CNET News.com's Ina Fried contributed to this report.