Santa Clara County Superior Court Judge James Kleinberg ruled that three bloggers have to divulge confidential sources in the lawsuit brought by Apple Computer Inc. Associated Press reports:

Santa Clara County Superior Court Judge James Kleinberg ruled in Apple’s favor, saying that reporters who published “stolen property” weren’t entitled to protections.

“What underlies this decision is the publishing of information that at this early stage of the litigation fits squarely within the definition of trade secret,” Kleinberg wrote. “The right to keep and maintain proprietary information as such is a right which the California Legislature and courts have long affirmed and which is essential to the future of technology and innovation generally….”

Kleinberg refused to say whether [the bloggers] were members of a protected class of journalists. He did not rule against the reporters because they wrote for relatively obscure Internet sites, he said, but because they violated trade secret laws.

“Defining what is a ‘journalist’ has become more complicated as the variety of media has expanded,” Kleinberg wrote. “But even if the movants are journalists, this is not the equivalent of a free pass.”

My concern has been Apple’s contention that the bloggers in this case are not journalists and therefore do not deserve journalistic protections under California’s Shield Law and the First Amendment to the U.S. Constitution. I’m glad that Judge Kleinberg did not endorse that argument.

Other reactions around the ’sphere:

Dan Gillmor:

Reporting on business, if this bad ruling is upheld on appeal, will be a great deal harder in the future. Companies will simply slap “trade secret” protection on everything they do, and any reporter who gets a scoop on anything the company doesn’t want the public to know about will be under a legal threat.

Dana Boyd:

As far as the case is concerned, i’m concerned. On one hand, i understand that people shouldn’t have the right to leak information that they know is private and expect protection. On the other, the reason that the First exists is to protect powerful systems from oppressing the people under their structure. In other words, it’s OK when information from inside the government is leaked because it’s a matter of checks and balances. But there are no checks and balances for corporations right? What constitutes a trade secret? How can you tell? Now we have two loopholes to allow for continuous oppression – trade secrets and government security. And you can’t even actually check this. It may be true in a few cases, but there’s so much room to be abusive.

Possibility Knot:

Hopefully Judge Kleinberg realizes the precedent he’s setting beyond simply the technology arena. Now, when a reporter is handed secret or confidential military information and discloses its contents, that reporter enjoys no legal protections. There is no way to demean the importance of such data by placing its priority below that of a “trade secret.”Free speech advocates and attorneys for the reporters criticized the ruling, insisting that all journalists should enjoy the same legal protections as reporters in mainstream newsrooms. Among those are protections afforded under California’s “shield” law, which is meant to protect journalists and encourage the publication of information in the public’s interest. Apparently, Kleinberg feels that knowing a trade secret does not fit in that category. Keep an eye out for where that slope stops becoming slippery.

Steve Gilliard:

This is only tangentially about Apple, btw. We could say Microsoft, Sun, Burger King, and the wider principle applies. At what point does a company’s ability to control information about itself allows for legal action. Lat me say this clearly: Apple has every right to defend their trade secrets, find out which employee leaked confidential information and fire them. What I don’t want companies doing is searching e-mail and suing websites to get that information.

Previously:
Apple vs. Bloggers
Apple vs. Bloggers, Part II
Apple vs. Bloggers, Part III

comments (0)   trackbacks (4)