BSA, Intel Back Apple Trade Secret Suit

Earlier this week, the Business Software Alliance (BSA), Genentech and Intel filed briefs in support of Santa Clara County Superior Court Judge James Kleinberg's preliminary ruling that journalists' Internet service providers can be obligated to identify confidential sources to Apple's legal counsel in civil discovery.

The legal wrangling stems from a "John Doe" lawsuit filed by Apple against Web sites, including Sean O'Grady's PowerPage, which provoked Apple after it disclosed the company's designs for a FireWire-based interface for GarageBand code-named "Asteroid".

Web sites AppleInsider and ThinkSecret are named in similar suits after they published rumors about a new a new flash memory based iPod and a productivity suite code-named Sugar, which later became the iPod Shuffle and "Pages."

Apple contends that its "trade secrets" were unlawfully disclosed and issued subpoenas insisting that the sites reveal their anonymous sources. The defense contends that Internet reporters and bloggers are protected by shield laws, which afford journalists protection under the California constitution and under the First Amendment guaranteeing free speech.

In his ruling, Judge Kleinberg disagreed with the defense's arguments and sided with Apple, singling out O'Grady's PowerPage. Kleinberg wrote, "An interested public is not the same as public interest." But what is in the public's interest is a grey area and not everyone sees eye-to-eye. The judge left open the question of what constitutes a journalist, stating that it was a moot point when trade secrets laws are violated.

In a joint brief supporting the decision, Intel and BSA stated, "Strong trade secret laws are vital to the health of California's high-technology business and to the economy of the nation as a whole. There is no public interest in having such trade secrets stolen and plastered on the Internet for competitors and others to see. They (journalists) have been conduits of stolen information and their files contain direct evidence of that illegal conduct."

"In this day and age, when a trade secret--indeed, any kind of secret--is never more than a few keystrokes away from global publication, companies that prosper on the strength of their intellectual property must have the ability to take reasonable steps to learn the identities of those who steal that property," Genentech wrote in its filing.

But the decision goaded many journalists into rebuttal. "I have a broad view of what customers need to know. They need to know when a company is killing a product, altering its roadmap, or delaying the introduction of a system due to bugs. Users need to have this information to make informed decisions. And we as journalists are obligated to provide it," said Mary Jo Foley, editor of Ziff Davis' Microsoft Watch newsletter.

Many civil libertarians also seem diametrically opposed to the ruling.

"Instead, the court asserts a wholesale exception to the journalist's privilege when the information is alleged to be a trade secret. This is a broad-brush ruling that threatens journalists of all stripes," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn.

But when asked in March if ruling could set precedent that would affect other reporters, Cohn told BetaNews, "State court rulings at the lowest court level (called the Santa Clara County Superior Court) are not citable."

The EFF provides the journalists with pro bono legal counsel.

Last week, the EFF alongside co-counsel Thomas Moore III and Richard Wiebe, filed a brief in response to Apple's opposition of the defendants' request for judicial review and intervention by the California Appellate Court in Santa Clara. The EFF has appealed Kleinberg's decision.

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