Lollypop said:
I was under the impression that the big issue with this case was that Apple was taking on the right of journalists to publish things that may or may not be secret and more specifically how they obtained the information. The fact that the leaks about asteroid started online is relavant , primarily because if apple succeeds with the subpoena web journalism wont be taken as serious as print journalism and wont be governed by the same rights and laws ect, and thats where bloggers do come in, certain reputable bloggers are considered journalists... but thats only as far as I understand the situation... might be 100% wrong.
Not really wrong - that was one of the subsidiary arguments that Apple used - but that wasn't the main thrust of the case. There were actually three strands to Apple's case:
1. The sources were not protected, as the sites were not "periodicals" which gain shield law protection under California State law.
2. That it had had its trade secrets (as defined under the California State law) leaked.
3. Apple had exhausted all other methods of identifying the leakers, and thus it was entitled to subpeona the journalists to find their sources - something for which there's precedent.
The first argument wasn't really the crux of the matter, and it's pretty clear that Apple never expected to win that argument. The shield law (which, importantly, protects "periodicals" NOT journalists) was very broadly written, and it's very doubtful that Apple's lawyers would have based their hopes on getting web sites precluded from it. It was worth a shot, but it wasn't the main thrust of the case - at least legally. However, in the press it was very much set up as about whether bloggers were journalists, which isn't even relevant.
The second argument was where Apple really messed up. It consistently alluded in its court filings to the fact that its trade secrets had been leaked - something that's a criminal offence under California's trade secret law. However, in its filings it made no attempt to actually show that a crime had been committed. It never showed that what was leaked constituted a trade secret, nor that the leak itself was illegal (as the judge put it, "That offense requires proof of, among other things, 'intent to deprive or withhold the control of [the] trade secret from its owner, or . . . to appropriate [the] trade secret to [the defendants] own use or to the use of another . . . .'").
Worse still, Apple significantlly undermined its own case in this respect by not joining the web sites themselves to a trade secrets case as defendents. It claimed that the sites published its trade secrets which, it claimed, had been illegally acquired. But at no point did it actually file a case against the sites accusing them of doing so. This means that Apple wasn't subpeonaing people it was accusing - it was subpeonaing third parties not enjoined to the case, which was a civil case not criminal. This undermined Apple's case, as courts are much less likely to overrule shield laws in civil cases.
However, there's clear precedent that journalists can be forced to reveal sources in cases in exceptional circumstances. Even at this point, Apple could have won its case: except for the fact that it hadn't done its job properly.
In order to force a journalist to reveal his sources in this kind of case, you need, legally, to have exhausted all other possible methods of getting the information you need. Apple, alas, did not do this: or, rather, it did not file documents with the court SHOWING that it had done this. As the judge put it:
"For example, would server or workstation logs show that an employee had copied the file to a CD-ROM? Transferred it to a flash memory device? Printed a copy? Printed it to an image file and transferred that? Uploaded it to an off-site host using any of various file transfer protocols? Attached it to an email sent through a web-based mail server rather than through Apples own servers? Transferred it directly to a laptop or other portable computer? Without answers to these questions it is impossible to say that Apple exhausted other means of identifying the source of the leak. Yet Apples showing was entirely silent on these points even though petitioners asserted in the trial court that Apple had not 'fully exploited internal computer forensics.' "
All of which adds up to Apple failing miserably to show that it had a case in court. Apple's legal team messed up - badly.
. Perhaps they just wanted to put the fear of God into sites to stop the flow of leaks
