Annie
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http://abcnews.go.com/Business/print?id=750595
Silicon Insider: Apple Lawsuit Could Define Cyber 'Journalists'
California Lawsuit Could Determine the First Amendment Rights of Bloggers
Commentary
By MICHAEL S. MALONE
April 13, 2006 - What is a journalist?
A court in California may give us an answer next week. And I'll bet that it gets the answer wrong.
The case in question involves a writer (let's call him that for the moment) named Jason O'Grady who regularly pens a column called "The Apple Core" for ZDNet.com, run by Ziff Davis Media. He also has his own news blog, called PowerPage.org. He is one of many men and women in the tech sector who scratch together a living writing insider stuff -- rumors of new products, analysis of corporate announcements, product reviews and so forth. -- about electronics companies.
Most of these writers, though they pride themselves on their skepticism and snarky writing style, are essentially cheerleaders for the companies they cover. On the rare occasions when they publish leaks about new products, it is usually in a spirit of enthusiasm shared by their readers, not an attempt to damage the company in question.
That's why it came as shock last December when Apple Computer filed suit against defendants, all labeled "John Doe," in a Santa Clara, Calif., court charging them with leaking trade secrets -- then subpoenaed PowerPage and another Web site, AppleInsider -- demanding the names of those leakers. So who are John Doe and his 19 friends? Specifically, Apple went after the little Internet service provider that handles O'Grady's e-mail and Web hosting.
"A nice Christmas card from the company that I have loved and supported for years," said O'Grady in a plaint that he will likely come to regret someday.
What were the vital "trade secrets" that O'Grady put in his column? They dealt with an arcane Firewire breakout box, code named Asteroid, for Apple's GarageBand podcasting software product. Big freaking deal.
Apple, with 14,000 employees, $14 billion in sales and an army of lawyers, managed to dig up a judge, James P. Kleinberg, just down the road from me in Santa Clara County Superior Court. Kleinberg ruled with Apple, writing that Apple's interests in protecting its trade secrets outweighed the public interest in the information. Wrote Kleinberg: "Unlike the whistle-blower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials [the enthusiast sites] are doing nothing more than feeding the public's insatiable desire for information." Yeah, like that's a bad thing.
First Amendment Backers Join the Fray
Not suprisingly, and to its great credit, the Electronic Frontier Foundation stepped up and offered to pick up the tab to appeal the decision. The EFF's petition has also been supported by amicus briefs from a host of important legal commentators specializing in the Web -- including Eugene Volokh, blogger and law professor at UCLA; Jay Rosen, press critic and NYU professor; Glenn Reynolds, University of Tennessee law professor and creator of Instapundit; and Scott Rosenberg, senior technology writer at Salon.com.
O'Grady is also getting support from The Associated Press, the Los Angeles Times, the San Jose Mercury News and the Society of Professional Journalists -- showing that, despite their protestations that bloggers aren't really journalists, when it comes down to freedom of the press, they are all on the same side.
Next week, on April 20, the California Court of Apple will hear that petition. And with any luck, and decency, it will rule that Kleinberg is out of his mind, and that he actively helped giant Apple Computer Corp.'s attempts to crush Jason O'Grady's first amendment rights. Reviewing Apple's Own Roots.
I come to this story with a slightly different perspective, having covered Apple Computer longer than anyone in the mainstream media (and having grown up with the founders), and at various times in my life having been a newspaperman, a freelance writer, a stringer, a magazine editor and a columnist. As a result, news stories like these always carry a lot of interesting resonances for me.
Examining Apple's Roots
To get the most obvious out of the way first: I always find it risible that Apple Computer sues anyone. The company did, after all, start out as an essentially criminal enterprise -- from Woz and Jobs' shady past in the telephone hacker business to Steve Jobs' rip-off of his partner's payment for work at Atari to the sweatshops all over Silicon Valley that the young Apple used to stuff its early motherboards. And let's not forget where the bit-mapping and windowing of Apple's vaunted operating system came from these days Apple produces some of the greatest consumer products on the planet, and bless them for it, but for the company to try to crush "pirates" of any sort is the height of hypocrisy.
Next, the courts. Don't get me started on this one. In my 30 years covering this beat, if there is one thing that I've learned it is that if you want a really stupid judgment, one that is oblivious to the realities of a changing technological world, the best place to take your dispute is to court.In the early days of the Valley, lawyers for outright thieves who, say, stole the source code from a software company, would merely stand in front of a judge holding a spool of magnetic tape or waving a floppy disk and say, "You're honor, this is all my client took: a mere sliver of mylar plastic." And the judge (or jury), with no understanding of the information stored therein, would let the crook off with a slap on the wrist.
Nowadays, it's swung in the opposite direction. Apparently, today a corporate mouthpiece merely has to stand up in a courtroom and declare something a "trade secret," and the judge, in awe of those magical words, would immediately order a scaffold to be erected for the defendant's execution. As O'Grady himself has written, a company could probably claim its cafeteria menu is a trade secret and sue anyone who posts it on a blog -- Your honor, the nutrition of our employees is part of our competitive advantage
Corporations Often Leak on Purpose
The truth is that many of the best journalists in tech have built their careers on leaks -- and so have many of the Valley's top executives. I know from experience that you don't have to steal inside information -- employees bring it to you. So do CEOs. Sometimes they do it to build the hype; sometimes to steal the thunder from a competitor (or from a rival in the company), and sometimes because they are simply arrogant idiots. And what is a reporter to make of one of those new product press releases that announce everything about the product but the delivery date? Or the price? If that reporter digs around a little and gets that information, is he or she violating a trade secret?
What Kleinberg doesn't seem to understand is that corporations here in Silicon Valley use access to information and the manipulation of the media as competitive tools. And that the "insatiable desire" for information by the public is our way of defending ourselves from that manipulation. If we are astute enough, we can learn a lot about a company from the way it deals in information. Or is Kleinberg suggesting that corporations should always have the advantage in these transactions?
Ultimately, however, I think this case really comes down to the definition of "journalist." Ask yourself: If O'Grady's original story had appeared under his byline in The New York Times, would Apple have ever brought suit? Of course not. Note that Apple didn't even have the guts to take on Ziff-Davis, but rather went after O'Grady's poor little ISP. What the Apple lawyers have bet on, it seems, is that they can pivot the case upon the question of whether a blogger is a real journalist or not -- and then convince the judge he's not. In other words, Apple v. Does 1-20 is turning into one of those cases that define an era, an attempt to freeze and categorize a world that is undergoing a massive transformation. And whenever you try to do that (from Dred Scott to the latest FCC regulations) you not only get the answer wrong, but you don't even ask the right questions.
Let me give you an example. For 15 years, after I walked out on the San Jose Mercury News, I was a freelance writer. My byline appeared in The New York Times, Boston Globe, International Herald-Tribune, etc. I wrote most of those stories sitting in a pair of gym shorts, with the stereo playing, in my house. I was given bylines, a police press pass, and all the other benefits that accrue to being a professional journalist. Yet, I operated exactly like today's bloggers -- I even broke the occasional corporate new product story (all of them leaked to me by company executives).
So what made me a "real" journalist? That I had once been a reporter at a major daily? Well, so have a lot of today's bloggers. Was it that I had my stories edited by newsroom professionals and published under famous mastheads? Yeah, well it's not as if newspapers these days are showering themselves with glory over their accuracy. No, what made me a journalist was that I was working in a world where traditional media wasn't being threatened by a whole new world of cable news, the Web and the blogosphere.
These days, the MSM is hurriedly trying to pull up the drawbridge to protect the "professionals" inside from the nonjournalists beyond the walls. But the public isn't fooled. For all the sniffing by the MSM about bloggers in pajamas and amateur journalism, most readers have figured out they can trust the reporting of a lone blogger like Iraq the Model as much if not more than the entire news apparatus of Reuters.
The cynical lawyers at Apple are trying to capitalize on that dispute and use the ignorant courts as its weapon in the process. It is to the credit of those newspapers that they are backing O'Grady, though I suspect they'd take Apple's side if only the threat to free speech were restricted to bloggers. As for me, I believe that Jason O'Grady is as much a real journalist as Bob Woodward or Seymour Hersh -- though I hope he learns not to love and support any company ever again. Meanwhile, I'd say shame on Apple -- if I thought it had any. Let's hope the California Court of Appeals shows real wisdom next week.
This work is the opinion of the columnist and in no way reflects the opinion of ABC News.
