Apple v. Does

"Apple v. Does" is a lawsuit filed by Apple Computer in December 2004 against unnamed individuals. The suit, filed in Santa Clara County, California, alleges that the defendants leaked information about new Apple products to several online news sites, including "AppleInsider" and "PowerPage". The articles at issue concerned a FireWire audio interface for GarageBand, codenamed "Asteroid" or "Q7". GarageBand is a software application developed by Apple that can create music.

Apple is seeking information from these news sites regarding the identities of the sites' sources. It has subpoenaed the owner of "Think Secret", dePlume Organization LLC, as well as Nfox.com, the email service provider for "PowerPage", for e-mail messages that may identify the confidential source. All parties concerned have publicly told Apple their intentions to the contrary.

Apple filed a trade secret suit over a separate issue against "Think Secret"'s owner on January 4, 2004. This suit does not concern Asteroid, but instead accuses the site's owner of breaking trade secret law by publishing stories on a "headless iMac" (the Mac mini), and an updated version of iWork.

Events in the case

On March 11, 2005, Judge James P. Kleinberg declined to grant a protective order that had been requested to block Apple's subpoenas, stating that he had found that the leaked information was an exact copy of a drawing taken from a confidential set of slides labeled 'Apple Need-to-Know Confidential". He wrote that the information was "stolen property, just as any physical item," and implied that websites posting such stolen information were analogous to criminal fences. He also wrote that Apple had passed the five-part test articulated in the California case Mitchell v. Superior Court (1984) that weighs whether a subpoena should be permitted over journalists' privilege rights under the First Amendment.

The online news sites filed a petition appealing the decision on March 22, 2005. Amici supporting the journalists' petition include:
* the "San Jose Mercury News"
* the Hearst Corporation ("San Francisco Chronicle")
* The McClatchy Company ("Sacramento Bee")
* the "Los Angeles Times"
* the Copley Press ("San Diego Union-Tribune")
* Freedom Communications ("Orange County Register")
* the Associated Press
* the Reporters Committee for Freedom of the Press
* the California Newspaper Publishers Association
* the California First Amendment Coalition
* the Society of Professional Journalists
* the Student Press Law Center
* the American Civil Liberties Union
* The Center for Individual Freedom
* The First Amendment Project
* Reporters Without Borders
* the Media Bloggers Association
* four law professors
* numerous online journalists
* NetCoalition
* the United States Internet Industry Association.

Amici supporting Apple include:
* Genentech
* Intel
* the Business Software Alliance

On June 2, 2005 the California Court of Appeal issued an Order to Show Cause, asking Apple to show the Court "why a peremptory writ should not issue as requested in the petition" filed by the online journalists. A hearing was held on April 20, 2006. [audio available from the EFF [http://www.eff.org/Censorship/Apple_v_Does/] ]

On May 26, 2006, the California Court of Appeal granted the online journalists' petition. The Court summarized the unanimous decision as follows: ["O'Grady v. Superior Court", 44 Cal.Rptr. 3d 72, copy of slip opinion available [http://www.eff.org/Censorship/Apple_v_Does/H028579.pdf from EFF] ] [The decision included eleven references to Wikipedia, including Firewire (Slip Op. at 3 n.3), Breakout box (Id.), GarageBand (Slip Op. at 3 n.4), Breakout (Slip Op. at 6 n.5), Asteroids (Id.), Arkanoid (Id.), Forum moderator (Slip Op. at 26 n.16), BBS (Slip Op. at 27 n.16), Blog (Slip Op. at 45 n.21), Webzine (Id.), Electronic Paper (Slip Op. at 46 n.22).]

Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see "Mitchell v. Superior Court" (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.

Apple v. dePlume

Apple's lawsuit against Think Secret is separate from its John Doe suit. In the Doe suit, it did not sue any journalists, but instead sought information through subpoenas to three Mac news websites concerning a product code-named "Asteroid"; Think Secret has done no original reporting on Asteroid. In contrast, Apple's suit against the dePlume Organization seeks damages from Think Secret for violation of Californian law against the dissemination of trade secrets over stories on the Mac mini and iWork.

On March 4, 2005, in response to this lawsuit, the dePlume Organization LLC filed a special motion in California Superior Court, Santa Clara County, requesting a dismissal of Apple's suit under the California Anti-SLAPP Statute. [ [http://www.thinksecret.com/news/antislapp.html Think Secret - Think Secret goes on offensive, asks to have Apple lawsuit dismissed ] ]

Backlash

Some critics have said the lawsuit could reduce U.S. journalists' protections under the First Amendment of the United States Constitution.

Many bloggers criticized Apple's suit. "Bloggers" said that Apple might face a blogger-initiated boycott, Mike Langberg wrote an open letter to Steve Jobs warning that "The lawsuits pose an imminent threat to Apple's most precious asset: the company's reputation as a hip underdog, a cool alternative to bigger and blander competitors such as Microsoft, Dell and Hewlett-Packard." [ [http://www.siliconvalley.com/mld/siliconvalley/11110787.htm SiliconValley.com - Home ] ]

In particular, critics accused Apple of using the lawsuit not only to protect its trade secrets, but to frighten its employees in order to prevent future leaking. [ [http://news.com.com/Apple+thwarted+in+bid+to+unmask+leaker/2100-1047_3-6077547.html Apple thwarted in bid to unmask leaker | CNET News.com ] ]

See also

*Notable litigation of Apple Computer

Notes

External links

* [http://www.eff.org/Censorship/Apple_v_Does/ EFF's webpage] on Apple v. Does
* [http://www.thinksecret.com/ ThinkSecret]
* [http://www.appleinsider.com/ AppleInsider]
* [http://www.powerpage.org/ PowerPage]
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