Apple pushes to unmask product leaker

A California appeals court will hear arguments whether Apple can unmask who leaked product information to a Mac rumor site.

A California court in San Jose on Thursday is scheduled to hear a case brought by Apple Computer that eventually could answer an unsettled legal question: Should online journalists receive the same rights as traditional reporters?

Apple claims 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.

"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 Macintosh news sites) are doing nothing more than feeding the public's insatiable desire for information," Kleinberg wrote at the time.

The Electronic Frontier Foundation, which is representing the Apple news site, is hoping the appeals court will pull the plug on a subpoena that could yield details about who leaked information about a FireWire audio interface for GarageBand that has been codenamed "Asteroid." The subpoena is on hold during the appeal.

"The California Court of Appeals has a long history of protecting freedom of the press," Kurt Opsahl, an EFF staff attorney who is arguing the case, said on Wednesday. "We're hopeful they'll continue to do so."

Listen up's Ina Fried examines how the dispute's outcome might affect Apple and the rights of bloggers.

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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, PowerPage's e-mail provider, which says it will comply if legally permitted.

Even though the AppleInsider site also published information about the Asteroid device, it operated its own e-mail service and would have been able to raise a stronger First Amendment claim if it had been sent a subpoena. (In a separate case, Apple directly sued another enthusiast site, Think Secret, alleging that it infringed on Apple's trade secret in soliciting inside information.)

The types of articles about Apple that Jason O'Grady,'s creator, posts every few days don't seem that different from those that many news organizations produce. They include reports on Apple's patent disputes, benchmarks of software performance, reviews of software and news about upcoming products that have not officially been announced.

Being the first to publish news about forthcoming products--as long as the information is accurate--is generally regarded by journalists as a coup. CNET was the first to report, for instance, that Apple was switching from PowerPC processors to Intel chips last year. (Full disclosure: O'Grady has begun writing a blog for ZDNet, also owned by CNET.)

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