Apple Computer has set its legal sites on bloggers, charging a group of web scribblers with leaking trade secret information. The titan of Silicon Valley’s fight against a bunch of probably underpaid John Does attracted the top defenders of the First Amendment when a California court ruled last year that the harm to Apple outweighed any free speech rights held by the bloggers.
Now the case is in the California Court of Appeals, with the bloggers supported by EFF, the AP, the San Jose Mercury News, The LA Times and the Society of Professional Journalists. Although the issues are, as is true of almost every lawsuit, complex, one view is that Apple can only win if it succeeds in distinguishing bloggers from journalists.
Why? Because the case hinges on a journalist named Jason O’Grady who published in his blog an obscure bit of non-public information about an Apple product. Had the New York Times, for example, done the same thing, Apple would have never sought to sue. But because O’Grady wrote this in a blog, he (or more weirdly his tiny ISP) got hit with a lawsuit.
Veteran tech journalist Michael Malone has this lengthy essay/report on the upcoming decision in California and why a win by Apple would mean only one thing: bloggers don’t hold the same First Amendment rights as journalists, even though bloggers are often also journalists.
Ultimately, however, I think this case really comes down to the definition of “journalist.” Ask yourself: If O’Grady’s original story had appeared under his byline in The New York Times, would Apple have ever brought suit? Of course not. Note that Apple didn’t even have the guts to take on Ziff-Davis, but rather went after O’Grady’s poor little ISP. What the Apple lawyers have bet on, it seems, is that they can pivot the case upon the question of whether a blogger is a real journalist or not — and then convince the judge he’s not. In other words, Apple v. Does 1-20 is turning into one of those cases that define an era, an attempt to freeze and categorize a world that is undergoing a massive transformation. And whenever you try to do that (from Dred Scott to the latest FCC regulations) you not only get the answer wrong, but you don’t even ask the right questions.
Cynthia Brumfield at 4:47 PM|Comments(0)
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