Opinion Roundup::Mixed Views on Apple Vs. Gossip Sites

    by Mark Glaser
    April 28, 2006

    i-b0c30b7d328a63ac980ffe241d05af91-Jason O'Grady.JPG
    In the Age of the Blog, the wheels of justice are spinning in the U.S. as courts are trying to rule on the rights of bloggers as journalists. There are more questions than answers in a case such as Apple vs. Does: Are the people who run gossip news sites such as PowerPage.org and Apple Insider journalists or even bloggers? They solicit inside information from people who anonymously tell them about Apple products before they are publicly announced. So how are they different from a technology news site such as CNET News.com?

    And in a new case that just came to light, an advertising agency for the Maine Office of Tourism (MOT) is suing blogger Lance Dutson for copyright infringement and defamation. Dutson has accused MOT of driving up the price of keyword advertising for local Maine merchants. Dutson displayed on his blog an advertisement the MOT had run that erroneously showed a phone number for a sex line instead of the MOT.

    In this case and the Apple case, people in a position of power — the Maine Office of Tourism and Apple Computer — are trying to silence speech online. But while the MOT case is about defamation, the Apple case is more complex, as the tech company is trying to force the insider sites (and their service providers) to give up identifying information on the anonymous inside sources they have.


    Apple’s lawyers say this is about trade secrets that are being divulged online, and that they have a right to subpeona the identity of leakers. Apple won an earlier lower court ruling, but the case was appealed to the California Court of Appeal, Sixth Appellate District, which heard arguments last week, and will rule on it within 90 days.

    So my question to you was: Should bloggers and online journalists be able to protect anonymous sources? Perhaps this was too esoteric of a topic, or just something that didn’t interest you much, as I only got one response to this question. Martha Page came to the defense of Apple, and noted that these insider sites are not doing serious investigative journalism and finding out about wrongdoing inside of Apple.

    “Apple is not a government entity, and trade secrets are not information that voters/taxpayers need to know in order to make informed decisions about the people and laws that will govern them,” Page wrote. “Journalists are protected and their sources are protected only when they are dealing with ‘public’ figures. Reputable journalists do not reveal trade secrets. So, no, bloggers who deal only in telling their audience what Apple’s new products will be do not deserve the same protection afforded journalists covering government agencies.”


    It’s a good point, but is Apple protecting a trade secret or the date it will ship an upcoming product, in this case a music-input box? The appeals judges who heard the case recently in a San Jose court were skeptical that there was a trade secret being divulged.

    “You don’t really claim this is a new technology?” Judge Conrad Rushing asked an Apple lawyer during the trial. “This is plugging a guitar into a computer.”

    Jason O’Grady runs PowerPage.org and is now blogging for ZDNet (that’s him in the sketch above). He wrote an interesting post on April 6 titled Apple Vs. Me, in which he describes his view on the case.

    “My position on the Asteroid postings [about the music-input box] is that I didn’t steal the information and I didn’t ask for it,” O’Grady wrote. “Someone volunteered it to me and it looked credible, so I posted it. It wasn’t marked confidential, trade secret or any such thing but it looked legit to me, so I ran it. When Apple later asked me to remove it, I complied.

    “Apple feels that independent online journalists are not protected by the First Amendment of the U.S. Constitution and that a journalist’s confidential communications and sources should be exposed to them or any large corporation that doesn’t like what they publish — at will. I think that this is completely wrong on several levels.”

    Others have stood up to defend these online journalists or bloggers or whatever you want to call them. O’Grady notes that various law professors, bloggers and media companies — including Hearst, the Los Angeles Times and the Society of Professional Journalists — are on his side. But on Electronic Business Online’s Dodge Report blog, one commenter, known as “Piense el Tanque,” wondered how far freedom of the press should go:

    Everything gets leaked to the Internet. Freedom of the press is an important protection, however one must weigh the damage to the company that was caused by the leak. I understand that the “reporter” is caught in the middle, but the fact is that someone at Apple has violated their employer’s trust by providing unauthorized information to the public…How far can freedom of the press reach in this information age? Anyone with a PC and Internet access can become an instant reporter. I seriously doubt that they are going to start handing out press passes to any blogger who wants to report on the Net. Perhaps that is the litmus test. If you qualify for a press pass to events, then you are protected.

    But who would make that determination? While many people who practice professional journalism have degrees or training in a journalism school, many of them do not. There is no litmus test for who a journalist is or who he or she should be — just that the person committing journalism should try to report accurately and fairly.

    Brian McFillen, an editorialist at the Indiana Daily Student, wrote that Apple Computer had lost its pioneering, non-conformist vision since it had infamously railed against Microsoft as Big Brother in its 1984 Super Bowl ad.

    “Maybe Apple will win on intellectual property grounds, but it’ll be at the cost of abandoning the very principles they’ve claimed to embody,” McFillen wrote. “If the personal computer has given us the ability to be so many things, why can’t we be journalists? If computers should be about liberating the individual, why try to take away our freedom of the press? It’s just such a Microsoft thing to do.”

    Ouch. While I haven’t interviewed Apple honcho Steve Jobs myself, I have heard that he’s a bit of a control freak when it comes to the media. So this move to subpoena a gossip site’s ISP to ferret out an inside leak at Apple seems par for the course. It’s too bad that Apple — the company whose products are so insanely great that people like O’Grady obsess over them — can’t understand the upside of so many people online clamoring for their products.

    If you want to read more about the Apple case, follow these links:

    Apple Trade Secrets Case Under Close Examination in Court

    Apple Still Seeking Closure on Blogger Suit

    Apple’s Flawed Stance on Information

    What do you think? Should online journalists, bloggers and gossips have the same protections as other journalists? Is Apple within their rights to sue for the anonymous sources’ identities? Speak up in the comments below.

    • I, for one, believe that bloggers do deserve the same protection as journalists. However, I do not believe that anyone, journalist or not, should have the right to reveal trade secrets. While I think that Apple might be over reacting in this specific case, I believe them to be within their rights to ask for the identity of the leaker.


    • You should demonstrate more resposibility, and check the facts before you report on the MOT story and make statements like “the Maine Office of Tourism and Apple Computer are trying to silence speech online.” That not even close to the reality of the issue.

      You obviously have not done your home work, and are simply repeating what Lance has stated. Lance is mis-leading the public, and distorting the facts.

      Does anyone check facts before they publish? Why doe PBS permit this level of unprofessionalism.

      Rights to free speach should also be accompanied with a level of responsibility.

    • OK, Bob. Explain to me how the MOT was not trying to silence speech online. I will follow-up on this story and write something with more depth, and talk to both sides. But on the face of it, I’d say that suing someone for copyright infringement for running an ad to prove a point is trying to silence someone. If you have facts, please share them.

    • Bob Dobalina


      I am not a champion for either side, but I have watched this process unfold over the past few months with great interest. Obviously, we all have a right to free speech, however when we exercise those rights, we need to use them with great respect and care to not tread on the rights of our fellow Americans a long the way. Mostly the Blogs have jumped right in with Lance, and simply repeat his story, as he tells it. I find that irresponsible and lazy.

      I know your coverage was limited to a few sentences, but you stated “MOT is suing Blogger”. That simply is not factual. I am a contributer to PBS, I feel that PBS is one of the last places where we can find the truth in the media, so I was a bit impassioned in my comments to you.

      Things to consider

      1) Warren Kremer Paino Advertising filed the suit, not MOT. The State has done nothing but try to address, and resolve the issues raised.

      2) Is the Mock-up ad with a wrong telephone number the only infringement? See WKP letter to Lance. Lance posted it in his blog.

      3) Does anyone really think the MOT staff are really bent on some evil plan? I don’t! They are hard working people who care about the livelihood of people in Maine. Maine needs them.

      4) I do not think Lance has his facts straight about the Google Ads. Even if he is right, it does not appear to be a covert attempt to hurt the tax payers in Maine. I find the Google Ad game confusing… to say the least. If Lance is really interested in helping Maine tax payers, why not contact the MOT and offer his expertise. He claims to be a professional in these matters.

      5) The MOT is charged with helping Maine’s primary industry. Maine tourism is pretty healthy and a great deal of credit should go to the MOT.

      5) The State pulled together a meeting to listen to Lance, and address the issues. Lance bailed on the meeting in the first few minutes. He left before the meeting started! From what I have read, the truth was discovered in this meeting.

      6) After the meeting was over, Lance asked for transcripts (via “Right to Know” law), and picks it apart on his blog. That is not a proper way to address anything. In the vacuum of his little blog, after efforts were put forth to handle in a public forum. He lost all credibility with me when he acted this way. Why not stay at the meeting, and address the issues like an adult.

      7) To me these do not seem to be the actions of a man interested in “helping” Maine tax payers.

      I look forward to your commentary, and my apologies if I came on a little strong in my first comments to you. Thank you for taking the time to look into this further.

      Bob Dobalina

    • Good points, Bob, and I will take them up in my fuller examination of what happened. Note that I didn’t write that MOT sued Lance, but its advertising agency did. I also made sure to frame it as Lance claiming this is what happened. In retrospect I shouldn’t have tried getting into this very complex situation like that, and will rectify it when I do a fuller piece on it later. I really appreciate you explaining your view, Bob.

    • Bob Dobalina

      Mark, I noticed that you mentioned the ad agancy on my second read of your article. You are correct, very sorry.

    • regross

      Bloggers should NOT have the same protections as reporters, primarily because there is no real oversight of what is published. Reporters are supposed to have some supervision and oversight and editors protect their company by trying to assure quality. There is no such protection for the reader in the blogsphere and bloggers should, therefore, be open to suffering the full extent of the laws for their transgressions.

    • In the MOT case, I think the Advertising Agency over-reacted. Suing the “little guy” is just not the correct way to go about silencing a blogger. They made a serious mistake in not checking the number they published in the draft ad. Posting a number to a sex line is a mistake that is unforgivable, which left them open to justifyable scorn. Any company that accepts a job that is funded by taxpayer money should, in my opinion, do a well vetted job with no stupid mistakes because anything they do is open to public comment. MOT’s ad agency did not do that. Lance is a taxpayer in the state and therefore entitled to comment on how his money is being spent. In effect, his tax dollars hired the Ad agency, so why shouldn’t he be entitled to state his opinion. I read his blog, I think he was careful to voice his opinion. I do not think he defamed them. They did this quite satisfactorily themselves by filing a punishing suit. This is in no way related to the Apple case. The MOT case is clearly a freedom of speach case. Apple is more complicated as it deals with leaking internal secrets.

    • Dewayne Estes

      The MOT case and the Apple case both involve a bit of bullying.

      Apple is probably overstepping, espescially considering their “underdog” brand postioning.

      But, in the case of Lance Dutson, he is also bullying via the internet the MOT in order to hold search term pricing at a level his paying clients can afford. He is not acting as “the voice of the little guy” in this case, he is simply the voice of his paying clients.

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