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Steve Jobs biographer fights subpoena in e-books case

Judge says Walter Isaacson, the man who quoted Jobs allegedly throwing consumers under a bus on e-book pricing, doesn't have to turn over unpublished tapes or notes for now.

The feds want to learn everything Steve Jobs told Walter Isaacson for the Apple co-founder's biography.
Courtesy of Patrice Gilbert

A federal district judge has ruled that Steve Jobs biographer doesn't have to comply with a subpoena served on by the U.S. Department of Justice as part of its antitrust suit against Apple and some of the country's largest book publishers.

Publishers Weekly, a trade publication, reported last week that the DOJ in May served a subpoena on Walter Isaacson, a former editor of Time Magazine and the author of the best-selling biography on the late Apple co-founder. The book, which was published by Simon & Schuster (owned by CBS, parent company of CNET), is a vital part of the government's case, DOJ attorneys contend.

Denise Cote, the federal district court judge presiding over the case, said that for the time being, Isaacson is off the hook but the government can renew its request "when it can show that it meets the test for disclosure of nonconfidential material."

This is important because one of Jobs' statements included in Isaacson's book is a smoking gun, according to the government. DOJ lawyers want to see what else Jobs may have said.

Anyone reading CNET has likely seen the statement but I'll add it again:

Amazon screwed it up. It paid the wholesale price for some books, but started selling them below cost at $9.99. The publishers hated that -- they thought it would trash their ability to sell hard-cover books at $28. So before Apple even got on the scene, some booksellers were starting to withhold books from Amazon.

So we told the publishers, 'We'll go to the agency model, where you set the price, and we get our 30 percent, and yes, the customer pays a little more, but that's what you want, anyway.' But we also asked for a guarantee that if anybody else is selling the books cheaper than we are, then we can sell them at the lower price too.

So they went to Amazon and said, 'You're going to sign an agency contract, or we're not going to give you the books.'...Given the situation that existed, what was best for us was to do this Aikido move and end up with the agency model. And we pulled it off.

Roger Myers, an attorney with the firm Bryan Cave and expert on First Amendment law, said he thinks Isaacson is a long way from being home free. He says there's different levels of confidential material.

Material provided to journalists or news reporters on the condition that their anonymity be protected would be considered highly confidential.

That would be tough to get at. But things begin to change when you're talking about a source that isn't anonymous. If the government continues to press the issue, the judge would likely have to ask why wasn't the material included in Jobs' biography, Myers said.

Did Jobs provide Isaacson some of the information on a confidential basis? Or did the material get left out simply because Isaacson chose not include it for editorial reasons? In the latter situation, the government's lawyers could argue that this isn't a strong enough reason to prevent them from obtaining the material.

In the 9th Circuit Court of Appeals, that wouldn't matter because material that goes unpublished is protected under the reporter's privilege even if provided on a non confidential basis, Myers said. But Cote is based in New York and she would apply the test set down by the 2nd Circuit Court of Appeals. Myers said he doesn't believe it offers as much protection.

"What she seems to be saying is that she doesn't think the material is protected or that it has limited protection," Myers said.

He said he could think of several strategies that the government could attempt to get at Isaacson's notes and tapes.

The feds could depose Isaacson and ask him what did Jobs give him that was confidential or ask him why the information wasn't included in the book, Myers said. Or, the government could ask the judge to personally review the information to determine if it meets the standards for being confidential material.

I wanted to hear whether the DOJ plans to continue going after Isaacson's materials but I haven't heard back from representatives there. When I do, I'll update.

Meanwhile, Isaacson's book became an issue in an unrelated case.

Numerous potential jurors in the patent court case between Apple and Samsung, which kicked off earlier today in San Jose, Calif., noted that they had read Isaacson's biography.

U.S. District judge Lucy Koh noted that it did not affect their ability to be a juror, unless it somehow made them unable to make an impartial decision based on the evidence. That's despite passages in the book where Jobs is disparaging to Google's Android, which runs on many of the accused Samsung devices.

Update 4 p.m. PT: To include quotes from First amendment lawyer.