As Apple Suit Shows, ‘Journalism’ Is Broad
For all its skill at designing products that strike an emotional chord with consumers, Apple Computer Inc. sometimes projects a corporate personality as chilly and arrogant as an oil company.
The latest manifestation of this trait is an Apple lawsuit implicitly aimed at a couple of online publications, Apple Insider and PowerPage, that compile tips, rumors and speculation about the company as sedulously as People counts celebrity stretch marks. The lawsuit concerns their premature publication of details of an unannounced Apple product dubbed Asteroid, which will enable users to record musical instruments directly onto their computers. Equating the disclosures with the theft of its trade secrets, Apple sued to ferret out the sites’ unidentified sources.
What’s rather nervy about the lawsuit is that Apple didn’t name the websites or their operators as defendants or directly accuse them of theft. Instead, it named 25 “John Does” -- presumably the confidential sources. Apple then subpoenaed PowerPage’s e-mails from its Internet service provider, hoping that the messages would help it fill in the blanks.
The websites’ owners objected to this end run. They argued in court that their role as journalists pursuing newsworthy information presents serious legal obstacles to any attempt to unmask their sources. Last month, Santa Clara County Superior Court Judge James P. Kleinberg disagreed. His ruling to uphold the subpoena has now been bumped up to the state Court of Appeal, where briefs from interested parties, including the Los Angeles Times and other news organizations, are currently piling up.
The Asteroid case touches on several issues of current and enduring public interest. Among them: What is a journalist?
There has been a lot of foolishness in the press of late questioning whether webloggers and online publishers deserve this professional label. The argument seems to be that only people who are officially affiliated with big media conglomerates and whose work is distributed on paper or by broadcast or cable should be allowed to bask in the tremendous respect and reverence bestowed on certified newshounds by a grateful public.
The truth is that the only useful way to define “journalist” is functionally: As anyone who hunts down suppressed, overlooked or misunderstood information of public interest (even trivial interest) and presents or explains it to an audience. The medium of publication is irrelevant. Newspapers, magazines and TV and radio services aren’t invariably exemplars of serious news gathering; many are brainless, irresponsible or purveyors of propaganda. Conversely, although many weblogs and websites are outlets for wingnuts and noodniks, many others provide trenchant and incisive news and analysis.
This is important because the law gives news gatherers exceptional rights; the only way to keep shield laws, reporters’ privileges and other press protections from seeming to be the property of a self-defined elite is to define journalism as broadly as possible.
But Apple and Kleinberg tried to exclude PowerPage and Apple Insider from the category. In its briefs, Apple calls PowerPage’s Jason O’Grady and his online colleagues “purported” journalists whose Asteroid disclosures are “not legitimate journalism or news.” In his ruling, Kleinberg placed quotes around the term “journalist” when referring to them, as though conceding the point for argument’s sake, but not really believing it.
As for “newsworthiness,” it’s in the eye of the beholder. For some people, nothing less than reporting on U.S. foreign policy qualifies; for others, Britney Spears’ latest amnio results are all that matter in the world. Under the Constitution, it’s not up to a judge to establish the line.
But that’s what Judge Kleinberg attempted. He suggested that the Asteroid disclosures were “gossip” unworthy of the same constitutional protection granted to exposes of official corruption. He ruled that the right of free speech, which he called “rife with complexities and restrictions,” was trumped by Apple’s “undisputed right” to protect its intellectual property.
But he got the balancing test exactly wrong. In fact, there are no constitutional provisions more categorical than the 1st Amendment guarantee of free speech. Intellectual property rights, on the other hand, are rife with conditions and qualifications, ranging from the limited term of patent protection to the very definition of “trade secret,” which often provokes extended debate in court.
This brings us to the “trade secrets” at the center of this case. Apple claims that the disclosures deprived it of a competitive advantage. But the websites didn’t reveal anything technologically groundbreaking or unique, on the level of the Coca-Cola formula (to cite the quintessential “trade secret”); indeed, several devices resembling Asteroid have been on the market for some time. What Apple lost was its unilateral ability to control the publicity and marketing of Asteroid -- something with obvious value to the company, but hardly a genuine trade secret.
There’s also some question of how carefully Apple safeguarded the Asteroid design and how assiduously it tried to find the thieves before going after PowerPage’s e-mails. Apple says its investigators interrogated every employee with legitimate access to the plans but failed to turn up the tipsters. This suggests that its security isn’t as tight as it believes, or that its employees blew off the interrogators with impunity. Either way, it looks like the company has a long way to go before trying to protect its own narrow interests by chipping away at a fundamental public right.
Golden State appears every Monday and Thursday. You can reach Michael Hiltzik at golden.state@latimes.com and read his previous columns at latimes.com/hiltzik.
