Apple fights for source of blog leak

Apple faced tough questioning on Thursday in its bid to gain access to electronic records of Mac enthusiast sites that published leaked details of an unreleased product.

Although a lower court ruled last year that Apple should be able to gain access to electronic records of the enthusiast sites, a three-judge appeals panel in the State of California Court of Appeal, Sixth Appellate District, peppered Apple's lawyer, questioning both whether the information at issue represented a genuine trade secret as well as whether journalists' right to protect their sources outweigh Apple's rights to protect its trade secrets.

"You don't really claim this is a new technology?" the presiding judge, Conrad Rushing, asked Apple's lawyer. "This is plugging a guitar into a computer."

George Riley, the outside attorney representing Apple, said the company maintained that the details and diagrams of a product code-named 'Asteroid', a music breakout box, which is used to plug a guitar into a computer, represented "a very serious theft".

The case being argued on Thursday addresses whether online journalists deserve the same rights as traditional reporters. In previous court filings, Apple claimed they should not. Its lawyers say in court documents that Web scribes are not "legitimate members of the press" when they reveal details about forthcoming products that the company would prefer to keep confidential.

That argument has drawn stiff opposition from bloggers and traditional journalists. But it did seem to be sufficient to convince Santa Clara County Superior Court Judge James P. Kleinberg, who ruled in March 2005 that Apple's attempt to subpoena the electronic records of an Apple news site could proceed.

The Apple case could extend beyond just blogger's rights. Most of the court arguments on Thursday, as well as the lower court's ruling, balanced whether any journalist's right to protect sources outweighs a company's right to protect its trade secrets.

The Electronic Frontier Foundation, which is representing the Apple news site PowerPage.org, is hoping the appeals court will pull the plug on a subpoena that could yield details about who leaked information about Asteroid, a FireWire audio interface for GarageBand.

In the lawsuit, filed in late 2004, Apple is not suing the Mac news sites directly, but instead has focused on still-unnamed "John Doe" defendants. The subpoena has been sent to Nfox.com, PowerPage's email provider, which says it will comply if legally permitted.

In a separate case, Apple directly sued another enthusiast site, Think Secret, alleging that it infringed on Apple's trade secret in soliciting inside information.

There was also a good deal of discussion in court on Thursday about whether Apple had been exhaustive in its internal investigation of who leaked the documents. The company said it has examined several internal server logs and questioned the 25 employees who had access to the information. However, the company did not question the workers under oath, something Apple maintains it should not need to do.

Judge Franklin Elia said Apple's internal investigation was essentially saying to its employees, "If you disclosed the information, you'll be fired. Did you disclose the information?"

Judge Rushing went so far as to mock a brief sympathetic to Apple filed by the biotechnology company Genentech, which argued that merely questioning employees represented too much of a burden to Apple.

Elia also hinted that the appeals court would revisit the lower court's order. "If we do nothing, the trial court's order goes into effect and there could be some damage," said Elia.

Apple attorney Riley said that the same rules should apply to the New York Times and the San Jose Mercury News as to bloggers, saying that trade secret claims trump any reporter's ability to protect his or her sources, based on existing precedents.

After recess, some of the sharpest questions from the judges were directed to Apple. "All you want is the name of snitch," Elia said. "That's what this case is about."

Riley disagreed, arguing that they were looking to uncover someone who committed a crime. Elia responded, "You shouldn't hire people you think are going to be [a]criminal."

Following the presentations of both sides, the court took the matter under advisement. "We enjoyed this," Rushing said. "The matter will stand submitted."

After the hearing, EFF lawyer Kurt Opsahl said, "It sounds like the court understood the important issues at stake here".

"The California Court of Appeals has a long history of protecting freedom of the press," Opsahl said. An Apple representative declined to comment.

It's not clear when the court will make a decision.

The subpoena to Powerpage.org, the email provider to one of the Mac enthusiast sites, is on hold during the appeal. PowerPage's creator, Jason O'Grady, has begun writing a blog for ZDNet, also owned by CNET Networks.