Waiting for the Apple Decision

This post was written by marc on March 4, 2005
Posted Under: Law

There are a lot of stories in the news that the discovery judge in the Apple vs. PowerPage case was denied. That was a preliminary order and it was before the judge heard any arguments.

The issue before the court was a discovery issue in the case of Apple v. Does. Apple seeks to be able to serve discovery on journalist Jason O’Grady of PowerPage and his ISP who processes his email. Jason is not a defendent in this case and EFF was there representing the interests of the nonparites to ask for a protective order preventing Apple from serving discovery on journalists and the ISPs who process their email.

I was at the hearing today and EFF did a good jub and moved the judge significantly in their direction. The winning issue for EFF is that Apple was lazy and didn’t investigate hard enough before trying to compel a nonparty journalist to give up their sources. Case law requires that the journalist is a last resort.

The process was very interesting. There were 5 lawyers at the table for the hearing. The judge did something unusual. He recognized that there were a lot of important questions on the table. So he started out asking a lot of questions and then he said that the lawyers should leave the room and confer about these issues for 15 minutes and come back for the arguments.

One of the questions was if there was a real issue to be suing over. Basically addressing the merits of the underlying case. Apple asserted that the information that PowerPage revealed was in fact a real product that is currently under development and that the “trade secret” that was revealed was a technical blueprint that would only be of interest to engineers and not the general public.

I personally believe Apple was lying to the judge here and it wasn’t just the law firm that represented Apple but also Apple’s in house legal counsel was there.

There was a question as to whether or not Jason O’Grady of PowerPage was a real journalist or not. EFF made a strong argument that the number of visitors to PowerPage is greater than the number of visitors to Macworld. That his publication had better circulation than many newspapers.

At issue was that stealing trade secrets was a criminal offense and the judge asked if and journalist who published information they know is a trade secret if they aren’t really actibg as a “fence” and using free speech immunity to become a conspirator in a crime.

The judge pressed Apple’s lawyers on what else they had done to discver the identity of the source of the leak. It turns out that Apple had not done a single deposition of any of it’s employees. The lawyer said the Apple’s investigator questioned 60 of it’s employees “under threat of losing their job”.

The reason this is important is because one of the key issues of immunity of journalists in discovery is if they are going to the journalist as a last resort. Apple has a real problem on this issue and their efforts to make this a last resort argument clearly fail.

Another issue of interest to me is that Apple is trying to do an end run around journalistic immunity by going after the ISPs who host the journalist’s email. That means that email providers like myself can be compelled to act as Apple’s corporate spies. The issue wasn’t addressed to the depth that I would have liked to hear and I’m hoping that was because it was obvious that if they can’t get discovery against the journalist that they can do an end run around the law and go after people who might have access to the journalist’s stuff.

The judge was very sharp in my opinion. Not at all like the brain dead Missouri judges I’m used to. Buy the time the judge was done EFF had clearly moved him for his preliminary decision against the protective order to having to take the weekend to think about it.

I am optimistic about this – but I may be wrong. The way I see it EFF clearly won on the issue that Apples failed the “exhaust all other remedies” test that would give journalists immunity. So I think the issue that the judge is struggling with is if Jason O’Grady is a journalist. I think that if the judge decides that Jason is a journalist – EFF wins.

Apple puts Free Speech at Risk

So – Apple – in order to protect it’s trade secets is putting everyone’s free speech rights on the line. I believe it is time to punish Apple for their sins against the first amendment. I’m looking for ideas on how to do this. Perhaps the open source community should delay Mac versions of it’s software in protest of Apple’s threatening freedom on the internet for it’s own selfish causes. This worked very well three years ago against Adobe who jailed a Russian programmer who wrote a program to decode Adobe eBooks. Adobe paid a political price for that they they won’t soon forget and I think Apple is ripe for the same kind of punishment.

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