Judge: Apple can pursue fan site sources

Judge rules that Apple has right to subpoena electronic records of Web sites that published items about unreleased product.

Apple Computer has the right to subpoena the electronic records of a Web site that published items about an unreleased product, a judge ruled Friday.

The judge said that Apple can go ahead and obtain records from Nfox, the e-mail service provider to Mac enthusiast site PowerPage. In the ruling (click here to download the Word document), Santa Clara County Superior Court Judge James P. Kleinberg ruled that Apple's interests in protecting its trade secrets outweighed the public interest in the information.

"Unlike the whistleblower 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," Kleinberg wrote.

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What's new:
A judge ruled that Apple has the right to subpoena electronic records of Web sites that published items about unreleased product.

Bottom line:
California's trade secrets law protects against the publication of private information, the judge ruled, in a decision that will likely be viewed with dismay by traditional media outlets, which themselves often publish confidential information about corporate plans.

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Apple has been seeking the right to subpoena the Mac sites to learn the identities of the worker or workers who leaked information about Asteroid, an unreleased music product. In the case, filed late last year, Apple is not suing the Mac sites themselves, but rather those who leaked the information. In another case, Apple is suing another enthusiast site, Think Secret, alleging that it infringed on Apple's trade secret in soliciting inside information.

In the ruling, the judge largely brushed off the question of whether the publishers were journalists and therefore protected from facing contempt charges for refusing to divulge sources under California's shield law. "Defining what is a 'journalist' has become more complicated as the variety of media has expanded," he said. "But even if the movants are journalists, this is not the equivalent of a free pass."

That aspect of the decision will likely be viewed with dismay by traditional media outlets, which themselves often publish confidential information about corporate plans.

Apple info 'stolen property'
California's trade secrets law protects against the publication of private information, Kleinberg said. Although longstanding law forbids courts from preventing the publication of information, publishers are still subject to the consequences of their actions afterward, he said.

The information about Apple's unreleased products "is stolen property, just as any physical item, such as a laptop computer containing the same information on its hard drive (or not) would be," the judge wrote. "The bottom line is there is no exception or exemption in either the (Uniform Trade Secrets Act) or the Penal Code for journalists--however defined--or anyone else."

"An interested public is not the same as the public interest."
--Judge James P. Kleinberg

The judge delayed the enforcement of the ruling for seven days to provide time for an appeal. An attorney for the Electronic Frontier Foundation, which is representing two of the sites being sued, said he would ask a higher court to overturn the ruling.

"Case law shows that subpoenaing a journalist must be a last resort," said EFF attorney Kurt Opsahl. "Apple did not use this as a last resort, but did only a perfunctory investigation before going on to subpoena the journalists."

An Apple representative had no immediate comment on the ruling.

Kleinberg acknowledged the intense interest of Mac fans in knowing about products, but said that does not mean there is a need that outweighs Apple's right to protect its information.

"The public has had, and continues to have, a profound interest in gossip about Apple," the judge ruled. "Therefore, it is not surprising that hundreds of thousands of 'hits' on a Web site about Apple have and will happen. But an interested public is not the same as the public interest."

In making the ruling, the judge said that, on the face of things, Apple had laid out a case that the information the sites reported could amount to trade secrets. He said that the posting by PowerPage publisher Jason O'Grady was taken directly from a confidential Apple slide presentation.

"The posting by Mr. O'Grady contained an exact copy of a detailed drawing of 'Asteroid' created by Apple," Kleinberg wrote. "The drawing was taken from a confidential set of slides clearly labeled 'Apple Need-to-Know Confidential.' In addition, technical specifications were copied verbatim from the confidential slide set and posted on the online site."

The judge was careful to note that his ruling did not extend to the merits of Apple's underlying case.

"The order of this court does not go beyond the questions necessary to determine this motion seeking a protective order against that single subpoena, and it cannot and should not be read or interpreted more broadly," the judge said. "The court makes no finding as to the ultimate merits of Apple's claims, or any defenses to those claims. Those issues remain for another day."

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