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Article:
  Apple vs. the Bloggers: How It Unfolded and Where It Stands Now
Subject:   I hope Apple takes it up to the Supremes.
Date:   2006-06-13 19:55:15
From:   rkoman
Response to: I hope Apple takes it up to the Supremes.

So, the court pretty much did draw this line. It's not a question of what technology you use to publish your writings but rather whether you act and organize in a journalistic fashion. Here, the "bloggers" had a track history of real reporting, had sources contacting them, published daily, etc. The issue is, how would this be different if the sites were the NYT.com instead of AppleInsider? If the only difference is size or name recognition of the site, it doesn't seem reasonable to say one is a jouralist and one is not.


If that is so, surely the line of journalism isn't online vs. print.


But, this is very important, just because these guys do work as journalists doesn't mean *every* blogger is a journalist; I quite agree with you. It means that just because you use blog software doesn't mean you're NOT a journalist.

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  • I hope Apple takes it up to the Supremes.
    2006-06-15 09:45:54  DanaScully [View]

    You've completely misrepresented what the court actually did and what the ruling means. Maybe if you were an attorney and actually understood what it said, you might get it right. As it is, you're just repeating the same spin of the EFF and supporters of these particular web sites.

    The ruling does not establish that bloggers are journalists; it only established that the court abdicated it's responsibility in determining who is or is not a journalist, which they must do before the reporter's shield could be applied. This is the Mitchell Test, established by the California Supreme Court.

    There is no First Amendment protection for reporters, and there never has been; the U.S. Supreme Court affirmed this in a ruling last year. All citizens are guaranteed the right of free speech, nothing more.

    The California Reporter's Shield does not protect any reporter from disclosing their sources in a criminal case, nor is there any federal protection for this circumstance.

    You consult and then quote the famously clueless "analyst" Rob Enderle, who says that Apple is really the only firm that doesn't use non-disclosure agreements. Did you even bother to check your facts> Of course not, that would be too easy. Apple has used NDAs for many years, and all employees are subject to them as a condition of employment.

    The court assumed that Apple hadn't exhausted all their options for finding the source of the leak in-house; there's no evidence to support that assumption. It's not as though Apple doesn't know what they're doing.

    Apple never argued that the plaintiffs weren't journalists, only that if they were, they weren't engaged in any activity that would grant them protection under the California Reporter's Shield law. Even the appeals court determined that what they published were in fact trade secrets.

    Your argument that we wouldn't be having this discussion if it had been the New York Times is typical of the fallacies you and your ilk promote. Apple or any other tech company would sue anyone if they published trade secret information. It's a criminal act, so size has nothing to do with it. Apple has $9 billion in free cash, so they could easily outlast the NYT in any litigation.

    Next time you feel the need to write about something you know nothing about, don't.

    • Richard Koman photo I hope Apple takes it up to the Supremes.
      2006-06-15 10:48:37  Richard Koman | O'Reilly Author [View]

      To start with, I am reporting on what the court said. I am not second-guessing it just what it said and what it means. Please don't think that your disagreement with the court gives you a license for rudeness.

      To address your points:

      1. "The ruling does not establish that bloggers are journalists; it only established that the court abdicated it's responsibility in determining who is or is not a journalist, which they must do before the reporter's shield could be applied. This is the Mitchell Test, established by the California Supreme Court."

      First, I did not say in the article or in my previous comment that bloggers are journalists; the article quoted Lauren Gelman's interpretation of the ruling: people who do journalism are do not lose the protections afforded to journalists merely because they are not attached to established media organizations, or because they don't publish in newspapers, magazines or radio/TV.

      The ct of appeals essentially did make that determination and found that for purposes of the Shield *these* bloggers are journalists.

      The Mitchell Test does not mention in any way a requirement to decide whether the journalists are in fact journalists. (37 Cal.3d 268 - you can find it on FindLaw.com) Mitchell establishes a balancing test between a "qualified" (not nonexistent, qualified) reporter's privilege under the First Amendment and a right of plaintiff in civil cases for disclosure. You can read either the Apple decision or the original Mitchell case to understand the prongs of that balancing test.

      2. "There is no First Amendment protection for reporters, and there never has been; the U.S. Supreme Court affirmed this in a ruling last year. All citizens are guaranteed the right of free speech, nothing more."

      If you want to provide a cite to this case, I will read it. The law in California is the Mitchell Test, which establishes, based on Supreme Court readings of the 1st Amendment, a qualified reporter's privilege. Granted, the First Amendment protection is weak, but it is not nonexistent. The First Amendment argument is not really core here, anyway, since Cal. has a Reporter's Shield.

      3. "The California Reporter's Shield does not protect any reporter from disclosing their sources in a criminal case ..." This is not a criminal case; it is a civil case. The Shield does protect reporters from jail for failure to disclose sources in *civil* cases. Perhaps I should have made that more clear.

      4. If Enderle is wrong, that only impacts an analysis of the impact on Silicon Valley, not the meaning of the decision.

      5. The court detailed many additional options Apple could have pursued but did not. They are listed in the article.

      6. There is no distinction between an argument between "are they journalists" and "are they protected." The only question is "are their activities protected under the Shield," which is equivalent to, are they journalists? Hair-splitting does not create an inaccuracy where none exists.

      7. "Your argument that we wouldn't be having this discussion if it had been the New York Times is typical of the fallacies you and your ilk promote."

      My argument was that there would be no question that work published on nytimes.com (although I should have said latimes.com, since we're dealing with the California Shield here) would be protected under the Shield. THis is because LA Times is an established news organization. It was an open question whether work of these bloggers would be protected. This has now been decided, in the absence of an appeal to the Cal. Supreme Ct.

      8. "Apple or any other tech company would sue anyone if they published trade secret information. It's a criminal act, so size has nothing to do with it. Apple has $9 billion in free cash, so they could easily outlast the NYT in any litigation."

      Apple has every right to sue the people who violated their trade secrets, I agree. Trade secrets violations are both civil and criminal. This action was civil. To my knowledge, Apple has not asked the Dept. of Justice or the Cal. Attorney General to get involved, so there is no criminal aspect to this whatsoever. This is a civil action, and the damages for which the perpetrators would be liable, if they were to be identified and sued and found in error, would be civil damages ($).

      As this is not a case on the scale of asbestos or DES, I seriously doubt NYT Co. would be unable to maintain litigation all the way through the process. If EFF did it, I'm sure NTY could.

      • I hope Apple takes it up to the Supremes.
        2006-06-15 14:55:24  DanaScully [View]

        As I said, bloggers or whatever they want to call themselves, are not journalists. You've cited Lauren Gelman's "spin", which is nothing more than a parroting of the EFF spin on the ruling. Unless you're actually engaged in journalism and doing real reporting as opposed to publishing verbatim from another source, you're not a journalist. Publishing stolen trade secrets is not journalism.

        Before the reporter's shield law could be invoked, the Mitchell Test must be applied, which the court did not do. They cited that case in their ruling, but only after they had already determined they were going to try to extend the reporter's shield to any blogger.

        I can't recall the case citation, but I did read the ruling with interest when it came out. There simply is no First Amendment protection for reporters, no matter what the EFF would like everyone to believe. Regardless of the California Supreme Court decisions, U.S. Supreme Court rulings take precedence.

        You're right, this isn't a criminal case--yet. And that should worry the plaintiffs a great deal, because there is no protection for reporters in a criminal case for not disclosing their sources. Should they be convicted, they will spend time in prison.

        Rob Enderle should never be asked for a comment, or quoted; he's always wrong whenever the subject is Apple Computer.

        The court detailed various options Apple could have taken to possibly find the source of the leak, but in the end, they assumed Apple did none of them, because Apple didn't give them any details on what they had or had not done. There's no evidence to support their conclusion, and unfortunately, nothing to disprove it.

        There is a very real difference between "are they journalists" and "are they protected" under Mitchell. You could be a journalist and yet acting in a manner inconsistent with journalism, such as knowingly publishing stolen trade secrets. In that case, you would not be protected by the reporter's shield.

        It wouldn't matter if it were the New York Times or the L.A. Times; Apple or any other tech company would sue them if they published trade secrets. Even their editors know better than to get involved in that. Many bloggers, including Jason O'Grady have tried to sell the argument that Apple wouldn't sue a big media organization.

        They're wrong, because it's not a question of money; both NYT and LA Times have plenty of money and lawyers on retainer. Apple would sue them anyway.

        Apple will appeal, all the way to the U.S. Supreme Court if they have to, and I'm confident this ruling will be reversed.