A judgment entered in December against bloggers, alleging that they illicitly disclosed trade secrets from Apple Computer, Inc., online, may have free speech implications for all online publishers. "This is not the usual, run-of-the-mill trade secrets case," according to Karna Berg, an intellectual property attorney with Halleland Lewis Nilan & Johnson, in reference to Apple v. Does. The case is now on appeal with the Electronic Frontier Foundation (EFF), the online civil rights group handling the defense.
The lawsuit concerns a series of stories that bloggers—including Jason O'Brady, producer of the PowerPage blog, and trade rumor site AppleInsider.com—reported about a FireWire interface Apple Computer had developed for a garage band called "Asteroid." The case was filed in Santa Clara, California, Superior Court, a municipal-level court.
Initially, Apple used the so-called "John Doe" statute to file its case against the Internet Service Providers (ISPs) that provided online service to the bloggers. After the identities of the bloggers were determined, subpoenas were issued seeking the names of the sources. Apple also subpoenaed Nfox.com, the email service provider for PowerPage, for email messages that may identify the confidential source.
The judge in the circuit court case, Judge James Kleinberg, finally ruled that the blog publishers disclosed trade secrets, without permission, and issued a court order that the bloggers must reveal their anonymous sources.
The EFF, along with co-counsel Thomas Moore III and Richard Wiebe, are representing the online journalists to protect their anonymous sources, according to EFF spokeswoman Rebecca Jeschke. The civil rights group opposes Apple's discovery because the confidentiality of the media's sources and unpublished information are critical means for journalists of all stripes to acquire information and communicate it to the public. Because today's online journalists frequently depend on confidential sources to gather material, their ability to promise confidentiality is essential to maintaining the strength of independent media. Furthermore, the protections required by the First Amendment are necessary regardless of whether the journalist uses a third party for communications.
Companies like Intel and organizations like the Business Software Alliance have filed briefs in support of Apple in the case, however. The appeal was heard on April 20, 2006. Apple declined to return several phone calls made for comment regarding this case.
A blogging expert, Ted Demopoulos, co-author of the book Blogging for Business (Kaplan, 2006), says that disclosure of trade secrets via a blog is usually a worry that companies have about blogs run by their own employees, not outside journalists. "In that sense, it is unusual that Apple went to court over this," says Demopoulos.