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:
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.