EFF Appeals Decision In Trade Secret Dispute Between Bloggers And Apple

by Glen Shapiro, LawAndTax-News.com, New York

18 April 2005

It emerged earlier this month that the Electronic Frontier Foundation (EFF) is appealing a verdict which stated that three bloggers accused of publishing Apple trade secrets were not protected by federal or state laws when they did so.

Ruling in March, Santa Clara County Superior Court Judge James Kleinberg announced that three online journalists must disclose their sources in the dispute with Apple.

Following publication by the PowerPage and AppleInsider websites of information on an unreleased interface for Apple's music creation application, code-named Asteroid, the firm sought to discover who had leaked trade secrets to the sites in question by issuing a subpoena to PowerPage's ISP, requiring the internet service provider to comb site creator, Jason O'Grady's e-mails for any mention of 'Asteroid'.

Delivering his opinion, Judge Kleinberg stated that the independent reporters were not sheltered by the First Amendment, or by California's "shield" law, which offers protection to reporters for mainstream publications whose publication of secret information is in the public interest.

"What underlies this decision is the publishing of information that at this early stage of the litigation fits squarely within the definition of trade secret," he announced, continuing: "The right to keep and maintain proprietary information as such is a right which the California Legislature and courts have long affirmed and which is essential to the future of technology and innovation generally."

Observers of the case have noted that beyond attempting to force the bloggers to reveal their sources, Apple has done little internally to discover the source of the leak.

Speaking to the eWeek news service last week, executive director of the Reporters Committee for Freedom of the Press, Lucy Dalglish observed that:

"If it had been an online report from a widely recognized electronic publication they wouldn't even have tried. I don't think they would expect to go out and subpoena the LA Times phone records. The judge would have looked at it differently."

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