Apple vs. the Bloggers: How It Unfolded and Where It Stands Now
Subject:   I hope Apple takes it up to the Supremes.
Date:   2006-06-15 09:45:54
From:   DanaScully
Response to: I hope Apple takes it up to the Supremes.

You've completely misrepresented what the court actually did and what the ruling means. Maybe if you were an attorney and actually understood what it said, you might get it right. As it is, you're just repeating the same spin of the EFF and supporters of these particular web sites.

The ruling does not establish that bloggers are journalists; it only established that the court abdicated it's responsibility in determining who is or is not a journalist, which they must do before the reporter's shield could be applied. This is the Mitchell Test, established by the California Supreme Court.

There is no First Amendment protection for reporters, and there never has been; the U.S. Supreme Court affirmed this in a ruling last year. All citizens are guaranteed the right of free speech, nothing more.

The California Reporter's Shield does not protect any reporter from disclosing their sources in a criminal case, nor is there any federal protection for this circumstance.

You consult and then quote the famously clueless "analyst" Rob Enderle, who says that Apple is really the only firm that doesn't use non-disclosure agreements. Did you even bother to check your facts> Of course not, that would be too easy. Apple has used NDAs for many years, and all employees are subject to them as a condition of employment.

The court assumed that Apple hadn't exhausted all their options for finding the source of the leak in-house; there's no evidence to support that assumption. It's not as though Apple doesn't know what they're doing.

Apple never argued that the plaintiffs weren't journalists, only that if they were, they weren't engaged in any activity that would grant them protection under the California Reporter's Shield law. Even the appeals court determined that what they published were in fact trade secrets.

Your argument that we wouldn't be having this discussion if it had been the New York Times is typical of the fallacies you and your ilk promote. Apple or any other tech company would sue anyone if they published trade secret information. It's a criminal act, so size has nothing to do with it. Apple has $9 billion in free cash, so they could easily outlast the NYT in any litigation.

Next time you feel the need to write about something you know nothing about, don't.

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  1. Richard Koman photo I hope Apple takes it up to the Supremes.
    2006-06-15 10:48:37  Richard Koman | O'Reilly Author [View]

    • I hope Apple takes it up to the Supremes.
      2006-06-15 14:55:24  DanaScully [View]

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