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Okay, so I haven't been sued by Apple...<SOB> WHY DON'T YOU LOVE ME STEVE?!?

Anyway, after reading the decision from the Appeals court regarding Apple and Jason O'Grady, well, it's a mixed bag, with a couple of bits that are quite bad.

First, the whole "What is a journalist" issue is silly. Pretty much, if you call yourself one, you are. That's how it's worked since Ben Franklin was one, at least in this country. That's not the same as being a good journalist. Having a web site and a dictionary doesn't make you Edward R. Murrow. The more soundly that the attempts by Apple to use the They're not 'real' journalists argument are beaten like a baby seal, the better.

Matt Deatherage and MacJournals did a great job of analyzing this step by step, so I'm not going to repeat his good work. Go subscribe and read. (Disclaimer: Yes, i'm on the masthead for Macjournals. Go read the analysis anyway, it's solid work, and Matt should get massive props for it.)

I've no real problems with the decision, until we get to page 62. Now, remember, part of the original court decision in favor of Apple was that "an interested public is not the same as in the public interest". This is not about Apple doing things that harm people, or illegal things, or even unethical things. Those would all be in the public interest. This is about an I/O module for musicians. So the attempts by O'Grady and the EFF to promote this case to the level of the Pentagon Papers or Watergate is not only ridiculous, but almost shameful. Pandering to the MacMacs is not the same as proof that our government is lying its ass off about the status of a war. Really. There's a difference, and yes, the difference matters.

There's some quotes here that worry me greatly though.

From Page 62:

This case involves not a purely private theft of secrets for venal advantage, but a journalistic disclosure to, in the trial court’s words, “an interested public.” In such a setting, whatever is given to trade secrets law is taken away from the freedom of speech. In the abstract, at least, it seems plain that where both cannot be accommodated, it is the statutory quasi-property right that must give way, not the deeply rooted constitutional right to share and acquire information.

Now, this seems pretty clear. Whenever trade secrets come up against the freedom of the press, trade secrets must lose. Hmm. So as long as things are published, they can be trade secrets, and that's okay?

At the bottom of page 62 and into page 63 we get:

The publication here bears little resemblance to that in Bunner, which disclosed a sort of meta-secret, the whole purpose of which was to protect the plaintiff’s members’ products from unauthorized distribution. Here, no proprietary technology was exposed or compromised. There is no suggestion that anything in petitioners’ articles could help anyone to build a product competing with Asteroid. Indeed there is no indication that Asteroid embodied any new technology that could be compromised. Apple’s own slide stack, as disclosed in sealed declarations which we have examined, included a table comparing Asteroid to existing, competing products; there is no suggestion that it embodies any particular technical innovation, except perhaps in the fact that it would integrate closely with Apple’s own home recording software—a feature reflecting less a technical advance than a prerogative of one who markets both hardware and software. The newsworthiness of petitioners’ articles thus resided not in any technical disclosures about the product but in the fact that Apple was planning to release such a product, thereby moving into the market for home recording hardware.

So now the appeals court has decided that Asteroid is not technically innovative outside of integration with Apple's software. However, even though this isn't an innovative product, and even though the documents, according to the court, would not allow anyone to build a competing product, the fact that Apple was planning to release it makes it in the public interest?

We have a legal body that has now decided on the technical and innovative merits of a product, and deemed it to be newsworthy , aka "in the public interest" because it showed that Apple was planning to move into the market for home recording hardware. (We'll leave off that in the home recording market, you don't need this. I think the court meant something different here, but we only have their words to go on.)

On page 64:

Genentech thus goes astray when it attempts to compare this case to one in which an employee causes the publication of a technical secret such as a new design or process. The Bunner court declared the primary purposes of California trade secret law to be “to promote and reward innovation and technological development and maintain commercial ethics.” (Bunner, supra, 31 Cal.4th at p. 878.) Whether or not confidential marketing plans constitute trade secrets under the governing statutory language, it cannot be seriously held that their protection has any direct and obvious tendency to serve the central purposes of the law.

So now it's marketing plans that don't count. Because marketing a product is of no import to a company? So now the court has decided that only information that they feel is of significant enough technical merit, and not a marketing plan is a trade secret? Of course, that doesn't matter, since according to the court, any time a trade secret and the freedom of the press clash, the trade secret must lose.

It's the second paragraph on page 65 that just astounds me, and I'm going to intersperse my thoughts within it:

These observations are intended not to demonstrate the innate newsworthiness of petitioners’ articles but rather to illustrate the peril posed to First Amendment values when courts or other authorities assume the power to declare what technological disclosures are newsworthy and what are not.

But you just did. Starting on page 62, you decided that because it was evidence of Apple wanting to move into home recording hardware, that the Asteroid documents were in fact, newsworthy. Here's the exact sentence:

The newsworthiness of petitioners’ articles thus resided not in any technical disclosures about the product but in the fact that Apple was planning to release such a product, thereby moving into the market for home recording hardware.

If a court deciding "what's newsworthy" is such a peril, then why are you doing exactly that?

Reading on in that paragraph:

The digital revolution has been compared to the Industrial Revolution in terms of its potential impact on society and citizens. Apple is widely seen as a central figure in this cultural sea change. The online version of a leading business magazine has quoted a securities analyst’s descriptions of Apple as “ ‘the nexus of [the] digital lifestyle revolution’ ” whose products “frequently incorporate disruptive changes in technology” and whose innovations “fundamentally alter the way we li[v]e.”31 The dry technical detail that pervaded petitioners’ articles should not be permitted to obscure the fact that any movement by such a cultural leader into a whole new area of expression—as was promised by the Asteroid product—is newsworthy.

Wait, so now any new product from Apple is automatically in the public interest? Huh?

For a court who thinks that it's dangerous for the courts to decide what's newsworthy, they seem to have a curious blind spot about their own behavior. But right there, it's clear. According to this court and this decision, any time Apple does anything new, it's in the public interest. Combined with their opinion that trade secrets always lose to the freedom of the press, this seems, if allowed to stand to say that effectively, there's no such thing as a trade secret in California.

If someone steals or misappropriates a trade secret, and gives it to anyone with a web site, and it is published, well, whichever company used to have a trade secret has no recourse unless they get lucky, and find the person who gave the journalist that material on their own, because as soon as it's published, it's protected. If you're Apple, you're doubly screwed, because now, pretty much every new thing you do is in the public interest.

This is just bad. Not because trade secrets or Apple's trade secrets should always win. If Jason had published evidence of corporate malfeasance or illegal activities by Apple, that would deserve protection, as would Jason and the rest, even if Apple tried to call it a trade secret or confidential or whatever. That holds true for any company, Apple, Microsoft, Intel, or the little kid spitting in the lemonade at his stand.

But this is not about anything close to corporate malfeasance or illegal or even unethical activities. it's about some hardware and software that Apple was planning on releasing. Just like the fabled ApplePhone or Apple Tablet, it's about what might happen.

There's no perspective here. There's no sense of "This is in the public interest, that is merely cool". To casually gut the trade secret because they make MacMacs happy is ridiculous. Yes, I know, the EFF would have us believe that everything is astoundingly important. That everything published on the web is akin to the Pentagon Papers, and any attempt to say "no, it isn't" is an attack on the very foundation of this country's freedom. Bollocks to that. Every case has to be decided on its own merits. There's nothing in the public interest about Asteroid, unless we now define "avid readers of Mac rumors sites" as representative of the general public. I would hope that's not going to be the case for long, because if so, then we're in for some scary times.

I sincerely hope this decision gets appealed again, and overturned by the California State Supreme Court. Because when a court says it's a bad idea to do something, then goes ahead and does it, well, that's never a sign of a good decision.

Technorati Tags: First Amendment, Bad Law, TEH STOOPUD

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