Apple argues for blogger records

A California appeals court will decide whether the computer company can gain access to data that could unmask leakers.

SAN JOSE, Calif.--Apple Computer faced tough questioning Thursday in its bid to gain access to electronic records of Mac enthusiast sites that published leaked details of an unreleased product.

Although a lower court ruled last year that Apple should be able to gain access to electronic records of the enthusiast sites, a three-judge appeals panel in the State of California Court of Appeal, Sixth Appellate District, peppered Apple's lawyer with questions. The judges wanted to know whether the information at issue represented a genuine trade secret as well as whether journalists' right to protect their sources outweigh Apple's right to protect its trade secrets.

"You don't really claim this is a new technology?" the presiding judge, Conrad Rushing, asked Apple's lawyer. "This is plugging a guitar into a computer."

George Riley, the outside attorney representing Apple, said the company maintained that the details and diagrams of a product code-named "Asteroid," a music breakout box, which is used to plug a guitar into a computer, represented "a very serious theft."

It's not clear when the court will make a decision.

The case being argued Thursday addresses whether online journalists deserve the same rights as traditional reporters. In previous court filings, Apple claimed they should not. Its lawyers say in court documents that Web scribes are not "legitimate members of the press" when they reveal details about forthcoming products that the company would prefer to keep confidential.

That argument has drawn stiff opposition from bloggers and traditional journalists. But it did seem to be sufficient to convince Santa Clara County Superior Court Judge James P. Kleinberg, who ruled in March 2005 that Apple's attempt to subpoena the electronic records of an Apple news site could proceed.

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Video: Apple in court to find leak source
California Appeals Court hears both sides.

The Apple case could extend beyond just blogger's rights. Most of the court arguments Thursday as well as the lower court's ruling balanced whether any journalist's right to protect sources outweighs a company's right to protect its trade secrets.

The Electronic Frontier Foundation, which is representing the Apple news site PowerPage.org, is hoping the appeals court will pull the plug on a subpoena that could yield details about who leaked information about Asteroid, a FireWire audio interface for the GarageBand music program.

In the lawsuit, filed in late 2004, Apple is not suing the Mac news sites directly, but instead has focused on still-unnamed "John Doe" defendants. The subpoena has been sent to Nfox.com, PowerPage's e-mail provider, which says it will comply if legally permitted.

In a separate case, Apple directly sued another enthusiast site, Think Secret, alleging that it infringed on Apple's trade secrets in soliciting inside information.

There was also a good deal of discussion in court Thursday about whether Apple had been exhaustive in its internal investigation of who leaked the documents. The company said it has examined several internal server logs and questioned the 25 employees who had access to the information. However, the company did not question the workers under oath, something Apple maintains it should not need to do.

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