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Apple Loses This Round In Blogger Case 95

Posted by Zonk
from the mask-stays-on dept.
smart2000 writes "A decision has been handed down in O'Grady, et al. v. Superior Court of Santa Clara County, the case commonly referred to as 'Apple vs Bloggers', in previous Slashdot posts. While like any court case it is complex, the short of it is that O'Grady won this round." From the article: "Apple has failed to demonstrate that it cannot identify the sources of the challenged information by means other than compelling petitioners to disclose unpublished information. This fact weighs heavily against disclosure, and on this record is dispositive."
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Apple Loses This Round In Blogger Case

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  • Is that anything like double-plus-ungood? Winston Smith, are you in there someplace?
    • My reaction exactly. What is wrong with "negative" or "not positive"?
    • IANAL but I assume the term is based on this [wikipedia.org].
    • Re:dispositive? (Score:4, Informative)

      by Jerry Coffin (824726) on Friday May 26, 2006 @05:36PM (#15412782)
      Is that anything like double-plus-ungood?

      "Dispositive" isn't from "dis-positive". It's from the same root as "disposition", "dispose", etc. What they're saying is that they don't need to send this case back to the lower court for a retrial or anything like that -- they have enough evidence to make a final decision about the case.

      • And lawyers wonder why we engineers and mathematicians snigger behind their backs. What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer....
        • Re:dispositive? (Score:2, Insightful)

          What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer...

          While legal loopholes most definitely get abused, having all laws be "absolute, black & white, this is the way it is" has a lot of potential to really break down in situations where a little bit of common sense can save the day.

          That said, writing the laws more clearly is not a bad thing... just making it a strict logical construct such as Modus Ponens

          • While legal loopholes most definitely get abused, having all laws be "absolute, black & white, this is the way it is" has a lot of potential to really break down in situations where a little bit of common sense can save the day.

            I'm not sure I believe in the existance of "common sense" anymore- and thus would rather have society run more like an operating system. Preferably one where there is a bug appeal process, but still at least deterministic instead of indeterministic.

            That said, writing the law
            • I'm not sure I believe in the existance of "common sense" anymore- and thus would rather have society run more like an operating system. Preferably one where there is a bug appeal process, but still at least deterministic instead of indeterministic.

              heheheh... hard to argue with your statement about common sense in general, but I've seen a fair amount of common sense coming from judges. Maybe nobody else in the entire governmental process, but I have seen (as recently as this week) judges that can and do

            • I think saying that we believe in the rule of law above all else is the problem with that construct.

              Keep in mind that laws are written by a group of people who have throughout history proven to be among the most corrupt and corruptable people in society. They are currently elected to represent 50.1% of the people who actually bother to vote at all. The selection process by which they are placed on the ballot is far less than transparent, and subject to the whims of the power structures of two large and en
            • One thing can be guaranteed, such a mathematical law would be unjust, foolish, and not a fit law for a democratic republic. There is no math involved in writing a law. I think, however, it's an art that is in danger of being lost. It must contain absolutes, but also be pragmatic, and contain enough exceptions that the courts don't fill up with people appealing this or that. There is nothing, absolutely nothing, Boolean about a just and livable law.
          • ...just making it a strict logical construct such as Modus Ponens ("if A, then B. B, therefore A") will not work in a real society.

            That logical construct is going to be pretty strictly limited to imaginary societies, insofar as it's not actually a modus ponens argument - "if A, then B. B, therefore A" is in fact the fallacy of affirming the consequent. Modus ponens takes the form "If A, then B. A, therefore, B."

            Just FYI before you actually submit your bill in committee :^)

            • That logical construct is going to be pretty strictly limited to imaginary societies, insofar as it's not actually a modus ponens argument - "if A, then B. B, therefore A" is in fact the fallacy of affirming the consequent. Modus ponens takes the form "If A, then B. A, therefore, B."

              Oh, hell... you're right. I had meant to type "If A, then B. A, therefore B" but I'm going to blame my typo on the beautiful weather and the fact that I was inside, at work, and the air conditioning was down.

              That's my stor

        • Re:dispositive? (Score:3, Insightful)

          by Jerry Coffin (824726)

          And lawyers wonder why we engineers and mathematicians snigger behind their backs.

          Oddly, many of the lawyers I know are engineers. I can see where almost anybody could end up a bit twisted from trying to snigger behind their own back... :-)

          What we really need is to get the legislatures to write law in clear, boolean logic that anybody can follow and always come up with the same answer....

          Experience with programming languages, design specification languages, etc., would tend to indicate that even

          • Experience with programming languages, design specification languages, etc., would tend to indicate that even when everybody wants the communication to be clear, it often isn't. Add in a (sometimes quite strong) motivation to misread, misunderstand, etc., and there's virtually no chance you can prevent all misunderstanding and such.

            So eliminate the human experience entirely- let the machines read the law, and let them give us the answer. I just want the law to become deterministic- the same answer out f
            • Re:dispositive? (Score:3, Interesting)

              by jthill (303417)
              In adversarial games worth playing, public deterministic strategies lose.
              • Re:dispositive? (Score:3, Interesting)

                In adversarial games worth playing

                Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life.
                • Re:dispositive? (Score:1, Interesting)

                  by Anonymous Coward
                  Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life.

                  Amazing how those sentences are so physically close together, and yet one has to make an enormous leap to get from one to the other.

                  • Amazing how those sentences are so physically close together, and yet one has to make an enormous leap to get from one to the other.

                    Not that enourmous- if you have to fight, then you've failed at the type of cooperation all parents try to teach their kids by age 3.
                • Re:dispositive? (Score:3, Interesting)

                  "Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life."

                  Life is an adversarial game. It's a zero-sum competition, which means we are all adversaries. The fact that we form alliances in order to better compete with other alliances doesn't change the fact that we are still engaged in an adversarial game.
                • Re:dispositive? (Score:3, Interesting)

                  by jthill (303417)
                  Perhaps "worth" was the wrong word to use. Games have a mathematical structure. I intended "worth" to refer to situations, whose mathematical structure mathematicians call "games", that have no forced win or draw strategy. Our legal system is adversarial and it follows rules. I was responding to someone's suggestion we get computers to apply those rules to presented cases, in deterministic fashion. The full spelling of my remark is that no deterministic automaton in an this situation can succeed long-te
                • Adversarial games are not worth playing. If you need to be adversarial, you're doing something seriously wrong with your life.

                  Shall we play a game?

                  How about Global Thermonuclear War.

                  Wouldn't you perfer a nice game of chess?

                  -Grey [wellingtongrey.net]
            • "So eliminate the human experience entirely- let the machines read the law, and let them give us the answer. I just want the law to become deterministic- the same answer out for the same input variables, every time."

              You mean 42 isn't good enough for you?!?!

              B.
            • let C be the set of all conditions for a given case.
              let F(C) be a function mapping from a set of conditions to a verdict.
              F(C) = Guilty.
              See, there you go. And it's really easy to optimize the implementation!
      • Lawyers can actually make decisions? I thought they were too busy cashing checks..
    • "Game over, thanks for playing."

      Dispositive, as in, "part of the case can now be disposed of."
    • It means "decisive." The root is "disposing." In other words, in a lawsuit about property, the final decision has to do with the disposing of the property involved.
  • Cool! (Score:2, Funny)

    by jargoone (166102) *
    Does this mean AsSeenOnTV can have his job back?
    • Does this mean AsSeenOnTV can have his job back?

      I always figured either they got to him or it was Jobs himself, possibly with technical assistance.

    • Isn't that the same guy who insisted we'd never see a video iPod?
  • by revery (456516) * <charles@cac 2 . n et> on Friday May 26, 2006 @05:11PM (#15412612) Homepage
    Me fail grammar? That's dispositive...

    --
    This is a joke. I am joking. You have been joked with.
  • by Dark Paladin (116525) <jhummel&johnhummel,net> on Friday May 26, 2006 @05:14PM (#15412629) Homepage
    Does this case work then to help establish that bloggers can be considered "press" - and just because a person doesn't work at a corporate or even print newspaper, they are still protected under typical laws and rules the protect journalists? (For whatever that means.)
    • Lay speculation (Score:5, Insightful)

      by abb3w (696381) on Friday May 26, 2006 @05:30PM (#15412739) Journal
      IANAL either; I just argue with them about the law. =)

      My educated lay guess: First, the ruling is based in part on the California Constitution Journalist Shield, so in CA they are protected as journalists. Other jurisdictions with shield laws/amendments would consider the ruling advisory, not binding, but would probably be influenced by its arguements. In areas without specific shield laws it would again be advisory, and with more limited use due to the more limited protection of the First Amendment alone; I suppose it might give a basis for arguing against prior restraint in publication for a blog. Of course, that would imply someone would come to try and get a court to order prior restraint on a blog, an idea which would probably make most judge judges call for the Advil.

    • A lot of people have tried to make this case about whether bloggers are journalists or not, but the judges have always sidestepped that. The first ruling, when the defendants tried to block the case under California's shield laws, was rejected on the grounds that revealing the existance of the Mac Mini and an audio break-out box wasn't whistleblowing, since they weren't reporting on a health risk coverup or bribery or the like, and that these items were trade secrets. The rulings since then have all been th

    • The "blogosphere" tried to make this thing into a Blogs vs Journalist issue, but the fact is that it's more of a news site than a "blog". The guy reports Mac news and rumors for a living.

      (Although I notice that since this thing started, he started using blog-like publishing software. http://www.powerpage.org/ [powerpage.org])

  • by Ritz_Just_Ritz (883997) on Friday May 26, 2006 @05:15PM (#15412641)
    For those of us who aren't parasitic lawyers? :-)

    • by Kamiza Ikioi (893310) on Friday May 26, 2006 @05:20PM (#15412679) Homepage
      Basically, the court afforded bloggers the same protections under the law that are given to all journalists, including shield laws.

      shield law n. A law that protects journalists from being compelled to reveal confidential sources of information. - Answers.com
      • No, in this case, they did not rule on that issue in a general case. They ruled that in this specific case, the actions of the bloggers fell soundly within the bounds of journalism. They explicitly refused to set any bounds on what is and is not legitimate journalism, however, and as such this case sets very limited precedent at best.

        Essentially, the sum total results of this decision were that someone acting in a journalistic capacity qualifies as a journalist, without further refining the definition t

        • Essentially, the sum total results of this decision were that someone acting in a journalistic capacity qualifies as a journalist, without further refining the definition thereof. Whoop-de-freaking-doo.

          But isn't that exactly how shield laws should work? Is a blogger a journalist? If they're gathering or distributing news. Is a NY Times writer a journalist? If they're gathering or distributing news. Why should a reporter for the mainstream media automatically get subpoena immunity in discovery via a s

          • But isn't that exactly how shield laws should work?

            Yes. They should. Anyone serving in a journalistic capacity should be treated as such. My point was that a case holding that people engaging in journalism via blogs are equivalent to those engaging in journalism for online newspapers, unpaid college newspapers, unpaid college online newspapers, etc. was inevitable, and the decision on that point was similarly inevitable. Thus, that aspect of the ruling was a complete eye roll and a yawn.

            Is a blogg

            • "Pre-teen girls babbling about who kissed who at last night's party definitely do not qualify."

              Um, what?

              They most certainly DO qualify, as their target audience is much more interested in the goings-on at last night's party than in the shooting at the 7-eleven. They are journalists.

              If the precedent could be set that they weren't, the gossip columns in nearly every major newspaper could be declared "not journalism" which would be very dangerous to a free society.

              Likewise, geeks writing about what they did a
              • Let's not confuse the issue. The first amendment protects a lot of things. We aren't talking about the first amendment. We are talking about shield laws. Shield laws are designed to protect journalists, period. They are not designed to protect gossip columnists. They are not designed to protect every crazy person who decides to write lies about someone in a blog. And so on.

                Gossip is not journalism. Editorializing is not journalism. Journalism is defined as reporting of the news with the intent to

        • I think you're misreading the decision. Apple wanted them to remove the journalist's shield, California variety, I suppose because it "isn't real journalism, in which the public interest is served." The court said, there is no test we can devise for that, and the whole enterprise of telling "real" journalists from "fake" journalists is not the court's business. So I think in essence, they said that the California shield law did apply to these bloggers, at least. By implication, I think a lot of California b
      • As a lawyer, I thought the court's holding was somewhat humorous. Wrote the court:

        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 thing is, when the court applied the journalists' shield law to bloggers, they implicitly accepted that bloggers were "legitimate" journalists. The court did precisely what they said they

      • by TheViewFromTheGround (607422) on Friday May 26, 2006 @05:55PM (#15412913) Homepage
        Basically, the court afforded bloggers the same protections under the law that are given to all journalists, including shield laws.

        Actually, the court said that they didn't want to rule on what qualifies a person as a "journalist" but would rather focus on the activity. That's a quite sane and reasonable approach.

        I'm currently in the midst of a case where the city of Chicago is aggressively pursuing a subpoena of a writer I work with for our online reporting on police misconduct in conjuction with a federal civil rights lawsuit (see The View From The Ground [viewfromtheground.com]). One of the questions in these cases always centers on whether or not the writer is "really" a journalist. This court sets a useful precedent in arguing that the spirit of shield laws is intended to protect the activity of making and distributing "news" and not "journalists" per se. Of course, there's no federal shield law, so our situation is different.

        Following the court's logic in this case, you have to wonder how much "journalism" (as in material that appears in newspapers, magazines, etc) is protected by shield laws.

        • Actually, the court said that they didn't want to rule on what qualifies a person as a "journalist" but would rather focus on the activity. That's a quite sane and reasonable approach.

          I doubt a judge would make the mistake of informing the public that journalists are no better or worse than the average joe. There's an imaginary line between self-righteous idiots who re-write associated press articles for a living and a humble blogger who does the same thing for free.
          • Actually, check out the decision [ca.gov]:

            [W]e can see no sustainable basis to distinguish petitioners from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience." "If their activities and social function differ at all from those of traditional print and

        • The case is about a California state law, so it's probably not that useful in Chicago. (But it's still a good thing, of course.)
          • The case is about a California state law, so it's probably not that useful in Chicago. (But it's still a good thing, of course.)

            Agreed. The lawsuit that we reported on (an alleged series of incidents of grace police misconduct) is actually a federal civil rights suit. But, even though a California court doesn't set jurisprudential precedent at the federal level, certainly such cases do have an impact on the way judges think about these issues.

      • Not much protection if atty gen gonzales has his way. He wants to make it a crime to report on information obtained through leaks.
    • by Anonymous Coward
      Professor Eugene Volokh (who is more a symbiotic lawyer) has a reasonable translation at the Volokh Conspiracy [volokh.com] that is lay comprehensible.
  • by Kamiza Ikioi (893310) on Friday May 26, 2006 @05:17PM (#15412650) Homepage
    Oh, now I get it. I was so brand confused. I thought that other Apple company was suing bloggers. Like most people when I think Apple, I instantly think Beatles. ;)
  • How is the Register going to write an article pretending the EFF regularly loses out of this one?
  • A weak victory (Score:4, Insightful)

    by nsayer (86181) <nsayer@NosPaM.kfu.com> on Friday May 26, 2006 @05:53PM (#15412894) Homepage
    The victory actually looks rather weak to me. If Apple had been able to demonstrate that they had no other means by which they could have rooted out the source of the leak, then it would seem the court would not have been able to dismiss this so easily.

    Am I missing something?

    • Re:A weak victory (Score:3, Informative)

      by flooey (695860)
      The victory actually looks rather weak to me. If Apple had been able to demonstrate that they had no other means by which they could have rooted out the source of the leak, then it would seem the court would not have been able to dismiss this so easily.

      Am I missing something?


      I don't think you're missing anything, but I also don't think that makes the victory weak. First, they didn't say that Apple would necessarily have won if this was their only way of determining the source, only that they couldn't
    • Am I missing something?

      That the court ruled that Apple has to meet as high a standard to extract a source from a news-and-rumors blogger as from (for example) a LA Times reporter.

      Admittedly, that's not very high, it's California, and it's not even the state's highest court... but it's enough to leave Apple sucking Lemons, sets a precedent that will be at least considered in other US courts, and gives bloggers a little more respect than they had yesterday.

  • by Chas (5144) on Friday May 26, 2006 @06:07PM (#15413004) Homepage Journal

    SteveJobs: What happen ?

    AppleDrone1: Somebody set up us the bomb.

    AppleDrone2: We get signal.

    SteveJobs: What !

    AppleDrone2: Main screen turn on.

    SteveJobs: It's you !!

    O'Grady: How are you gentlemen !!

    O'Grady: All your secret are belong to us.

    O'Grady: You are on the way to destruction.

    SteveJobs: What you say !!

    O'Grady: You have no chance to survive make your time.

    O'Grady: Ha Ha Ha Ha ....

    AppleDrone2: Steve !! *

    SteveJobs: Take off every 'Mac' !!

    SteveJobs: You know what you doing.

    SteveJobs: Move 'Mac'.

    SteveJobs: For great justice.

  • Apple loses round booger someplace ...

    *blinks*
  • Very interesting (Score:5, Informative)

    by wootest (694923) on Friday May 26, 2006 @08:02PM (#15413553)
    The whole ruling is interesting reading, but towards the end (page 62 and forward) we find these very interesting lines, which I suppose sum up best why Apple lost the case:

    "The publication here bears little resemblance to that in Bunner, which disclosed a sort of meta-secret, the whole purpose of which was to protect the plaintiff's members' products from unauthorized distribution. Here, no proprietary technology was exposed or compromised. There is no suggestion that anything in petitioners' articles could help anyone to build a product competing with Asteroid. Indeed there is no indication that Asteroid embodied any new technology that could be compromised. Apple's own slide stack, as disclosed in sealed declarations which we have examined, included a table comparing Asteroid to existing, competing products; there is no suggestion that it embodies any particular technical innovation, except perhaps in the fact that it would integrate closely with Apple's own home recording software--a feature reflecting less a technical advance than a prerogative of one who markets both hardware and software.

    The newsworthiness of petitioners' articles thus resided not in any technical disclosures about the product but in the fact that Apple was planning to release such a product, thereby moving into the market for home recording hardware.

    [..]

    Publishing a computer manufacturer's proprietary code may thus be compared to publishing a miller's secret recipe for a breakfast cereal. What occurred here was more like publicizing a secret plan to release a new cereal. Such a secret plan may possess the legal attributes of a trade secret; that is a question we are not here required to decide. But it is of a different order than a secret recipe for a product. And more to the point, the fact of its impending release carries a legitimate interest to the public that a recipe is unlikely to possess."
  • So this seems to be the method I aquired the information is the issue. I seem to have broken it down like this in simple terms if I am reading things right.

    If I sneak into Apple and take pictures, documnet copies etc and post them online I am not protected.

    But if I am told or given those documents, pictures, etc. by another person (third party) I am protected. Is this true or am I missing something????
    • But if I am told or given those documents, pictures, etc. by another person (third party) I am protected. Is this true or am I missing something????

      IANAL, but... you would also have to be revealing them as part of a produced news periodical, although a news blog may qualify; and it cannot be a criminal case -- trade secret disclosures are civil cases. If you recieved a stolen Apple prototype, and took pictures of it yourself for your news publication, they would have a better chance at a subpoena for your

    • Yes. Case one is trespassing and espionage. Case two is "soandso told me this". You didn't do anything illegal retelling something someone else told you, but you did when you trespassed and directly disseminated secret information.
  • I have heard the wikipedia was threatend, and offered $2M, to change the Merkey story. The story was changed.

    If the story was changed in exchange for money, then big money is still deciding what gets published, and what doesn't.
  • For those of us who run websites which often disseminate these sorts of trade secrets for the sake of the public good, this is a big win. Just because something is posted in a blog rather than printed on a printing press doesn't make in any less journalism (good OR bad), and just because it's a trade secret doesn't mean we should be forced to reveal our sources. Hopefully, this will encourage more people with inside information to feel comfortable with talking to reporters, without the fear of becoming ex
    • For those of us who run websites which often disseminate these sorts of trade secrets for the sake of the public good, this is a big win.

      I doubt mentioning a product that's about to come out is considered a "trade secret." There were many flaws in Apple's argument, the judge went after something with less impact on the precedence.
    • For those of us who run websites which often disseminate these sorts of trade secrets for the sake of the public good, this is a big win.

      I hate companies bullying people around as much as anyone, but "for the sake of public good" is a complete self-serving bullshit argument.

      If the guy had leaked info about Apple knowingly selling faulty products, for example, that would be justifiably defended by the courts as "for the public good". But this was just "Hey d00ds! I have cool secret info! I signed a document
  • by mstone (8523) on Saturday May 27, 2006 @11:13AM (#15415922)
    Advocacy to the contrary, this ruling doesn't say much. The two sides are still arranging their pieces on the board, and the major facts of the case are still in play.

    This is really just an example of the adversarial legal system in action. Both sides state their ideas in the strongest terms they possibly can, then the other side gets a chance to chip away as much it can.

    In the previous round, the bloggers floated the idea that anyone who puts information on the internet is a journalist, and that anyone who posts protected information should receive the same legal protection as a whistleblower. The court didn't buy that, nor should anyone have expected it to. But that's where the defense started, because it would have been the simplest, strongest win they could get. All they really lost was the right to claim blanket immunity from prosectution for anyone, anywhere, under pretty much any circumstances.

    Now it's Apple's turn. Apple floated the idea that it should get a free pass for discovery since the information in question was vastly important, and that the bloggers had no possible interest in publishing it. The court didn't buy that, either. Had the bloggers posted the product's schematics, or a discussion of some new, patentable idea that Apple had been working on, the decision probably would have gone the other way.

    So as things stand now, the bloggers can't make the case go away on the grounds of blanket immunity, and Apple can't ask the court to fast-track its subpoenas because of the massive-and-ongoing damage it received. Neither of those was really a viable claim in the first place, but that's how the game is played.

    The courts still have to rule on whether Apple has done sufficient work trying to find the leak by other means, and the bloggers still have to face questions about whether they knew the information they posted was confidential, and put it online anyway.

    And NONE of this has anything to do with the question of "whether bloggers are journalists."
  • Where are the checks and balances for all this power? Can anyone use with power without carrying any responsibility for the consequences of their actions? Are there no standards or ethics? I can just see this phenomenon being used to so much ill in the wrong hands. Mr. O'Grady gives real journalism a bad name quite frankly. If the press is the fifth estate and acts as the watchers of the government, who is watching the watchers and why should their power extend to the private sector?

    If a case does not inv

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