free html hit counter Jobs On Suing Bloggers | John Battelle's Search Blog

Jobs On Suing Bloggers

By - May 23, 2005

JobsLast night Steve Jobs gave a great interview with Kara and Walt, and I was with him for most of it – with him as he railed against the walled gardens of cable and mobile phone operators, with him as he showed really cool new iTunes/RSS/Podcasting integration, with him as he dodged questions about whether Apple was going to get into the video market. But then he started justifying his decision to sue a few bloggers for leaking Apple’s product plans. He claims that no one has the right to publish confidential information just because they can, and so far, the courts are agreeing with him.

I say, fuck that. I’ve stayed out of this one because it’s orthogonal to search, but it’s directly related to my ability to do my job, and I am not alone. At the core of this case is a clear attempt to draw a line between professional and amateur journalism, and as a practitioner of both, I have to say it’s a very dangerous line to be drawing. Should the courts decide whether the next Tom Paine has to work at the Wall Street Journal before he starting cranking out his pamphlets? I don’t think so.

When I was 25 years old,I was a young, untrained reporter at MacWeek, a new Macintosh trade publication. I cultivated as many sources inside the industry as I could, trying to get scoops about what Apple might be doing next. My readers were volume buyers at corporations who were eager to know what was next, so they could plan their purchasing.

Through a source, I got my hands on an early prototype of a new machine, called the Mac IIci, which was Apple’s major play in corporate America. I took it apart, had some engineers stare at it for a while, and wrote up a cover story, including a photograph of the motherboard. I was told later that corporate sales at Apple tanked for a while, as folks waited for the hot new machine.

So, why didn’t they sue me? One reason: Jobs wasn’t running the company then. Jobs would claim that I was working at a “real publication” – it was owned by Ziff Davis at the time – but I have to say, most bloggers today are far more qualified to run a story like the Mac IIci scoop than I was back then.

During the Q&A, someone asked him about another dumb move: pulling all Wiley books from his Apple Stores because he didn’t like an unathorized biography Wiley published. Why did he do that, the questioner asked. “I didn’t want to do business with them,” he answered. He has that right. But then he added: “People can publish whatever they want to publish.” I guess so, as long as they are “real publishers.”

Forcing journalism into some kind of a “qualified” box is a very bad idea. Jobs vowed at the conference to take this issue to the Supreme Court if necessary. I hope he does, and I for one plan to fight him the whole way there. If you agree, help EFF work on this issue. Thanks.


Related Posts Plugin for WordPress, Blogger...

28 thoughts on “Jobs On Suing Bloggers

  1. nivi says:

    If this Apple case is of interest to you, I would read this series of articles by Daring Fireball who has looked into the issue fairly closely.

    http://daringfireball.net/2005/03/new_york_times

    http://daringfireball.net/2005/03/nyt_credibility

    http://daringfireball.net/2005/03/discovery_ruling

  2. Nemo says:

    I am still a bit confused by the whole bloggers issue. Is it legal for a WSJ reporter to knowingly elicit proprietary business secrets from an Apple employee and then post them for the world, to later hide behind the excuse that they are a journalist? Uh, no. Its called theft, professional status doesn’t matter. The issue has nothing to do with journalism.

  3. Phil says:

    Nemo, you are correct.

    John is just posing an unproven, hypothetical story to make some sort of point about bloggers and professional journalists and using the Apple case to create his own reality distortion field.

  4. John says:

    Sigh. OK, I’ll bite (back). The point here is that Apple is claiming that the bloggers/journalists “incited” or “elicted” the information from their sources, thereby breaking the trade secrets law. This is a very dangerous precendent. You guys familiar with DMCA? Fans of it? Fine, we agree to disagree. Meanwhile, I prefer a regime where companies have to work hard to protect their secrets, and leaks happen, to one where companies, free from the scrutiny of anyone, can claim any and everything “trade secret” so as to control their image and spin their practices. Sorry, call me crazy, but the potential for abuse is too great. This is not an open and shut trade secret case, despite the protestations of both Jobs and Daring Fireball. There is more at stake here.

  5. Tyme says:

    I wrote about this on my site because my response would be rather lengthy here, but I think you’re missing the bigger picture. Apple has the right to know who broke the NDA. The people could still be working there – is that right? The only way to get to these people are through the web sites. If the web sites want to protect someone that broke the law, then they should be gone after to the fullest extent of the law. They’re protecting a criminal – and you’re saying that’s ok and complaining that by going after the sites it’s interefering with your ability to do your job.

    Sorry, I just don’t get it.

    Jobs shouldn’t have to take these bloggers to court. The cowards that broke their NDA and are hiding behind bloggers should be going to court. These people need to take responsibility for what they did.

  6. Nat Irons says:

    I don’t see Apple, or Jobs, making a statement about bloggers vs journalists. Apple’s suing the people with the profit motive in spilling Apple’s secrets, because they believe that losing control of their PR like that costs them enormous sums of money. (I believe they’re right about that.)

    Those people happen not to be the New York Times, but only because the New York Times would find it tacky to print breathless fanboy hardware speculation. If that changed, and if the NYT became the thorn in the side that Jason O’Grady and Nick Ciarelli have been, I think Apple would sue them with all deliberate speed, and their chances of winning would not change.

    John doesn’t have a problem with Apple, he has a problem with California’s trade secret laws. Reform of American trade secret policy is a much more interesting and challenging subject than the question of whether anklebiting bloggers deserve Judith Miller’s first amendment protection. In the meantime, for Apple not to exercise those laws amounts to leaving money on the table.

  7. Todd Blanchard says:

    I don’t see the connection. If I get hold of your credit card numbers and publish them on the web that is OK because its journalism? You can likely show harm when I do that, like Apple was harmed with your IIci caper.

    That’s not journalism, its tittilation. Boring and stupid. Not defensible.

    I continue to side with Job on this

  8. PXLated says:

    From the comments, it looks like you’re out sucking the hind one. Perfect! I agree with the other posters.

  9. David says:

    John, the first point you need to understand is that the publishing of confidential information is prohibited by the Uniform Trade Secrets Act — the DMCA is separate legislation that does different things. Even if the DMCA was gone tomorrow the UTSA would still make this illegal activity.

    The second point is that the separation under scrutiny here isn’t so much “amateur vs. professional” journalism, it’s “legal vs. illegal” journalism. While the first amendment allows for a wide range of publishing, it does not provide a “get out of jail free card” for illegal activity. You are familiar with the concept of libel, yes? That’s an obvious example of where publishing something will get you in trouble.

    Todd gives another example: If we got a hold of your personal information, including credit card info, etc., could we publish that with no fear of reprisal? What if you sneak a videocamera into a cheerleader’s lockerroom and publish that on television or the internet? Is that ok?

    Journalists, whether they are in traditional media or whether they are bloggers, podcasters, etc. need to have an understanding of where the limits are in publishing. This is not to take away their freedoms — it is to protect the freedom of others. As the saying goes, the freedom to swing your fist stops when you hit my face.

  10. Nat Irons says:

    Geez, David, that’s pretty condescending. Nobody cited the DMCA as relevant to this case, John just brought it up to illustrate a well-known way that large corporations can suppress speech with which they disagree. (Drawing a moral equivalence between libel, privacy, or assault laws and trade secret laws is off-point and counterproductive.)

    I think the DMCA is the right analogy. The problem with a company like Adobe vociferously exercising the DMCA is secondarily with Adobe, and primarily with the goddamn DMCA itself. Likewise, the real problem in this case is the ugly expansiveness of trade secret law. The question of whether bloggers are “real” journalists is a distraction; it just happens to be EFF’s best shot to at least win public opinion.

    I think John’s mistaken on this issue, but I’m surprised by the uniformity of opposition in the comments, and I deplore the tone.

  11. Ah, it’s fine to use indecent videos and credit card fraud as a head fake, but that’s a false comparison. I used DMCA because it is a law that changes the rules of the game to presume that one is guilty through association, I used it as an illuminating example, one that sheds light on what might happen should Jobs prevail. I understand the UTSA, kind sir. Thanks for the patronizing tone, though, always appreciated.
    Apple and many other companies hold back “confidential” and “trade secret” information from their customers and partners at their own discretion, but often they do it for reasons that are questionable and even – gasp – self serving and against the best interest of the public. (Enron, perhaps? Halliburton?) It’s a journalist’s job to get that information if it is in the interest of his or her readers. Do journalists at times go too far? Sure. But to create or interpret a law in such a way as to prevent journalists from doing their job, which allows powerful corporation to stamp “confidential” on any and all things inside their company and claim they can jail anyone who publishes that information, well, I don’t want to live in that society.

  12. Gpalermo says:

    John,

    Nice to meet you, I never knew who was the person at MacWeek who publich the MacII Ci picture. Well I worked at apple at the time when this happen. Sales did tank for the period before the release and I remember it like it was yesterday. It sent a clear message to people at the company that is was not okay to disclose new product information since it affect everyone’s bonus that quarter.

    Now for the reason Apple never came after you, they did not have to, when you published the picture it had the serial number on the logic board and it was very easy for us to track who the unit was issued to. Since I and a few other co-workers worked on the Ci notice this and reported it to management. It was reported internally at Apple the person and the company they worked for lost their developers agreement. Plus the person was black balled as trade secret thief in the valley at the time.

    Unlike your youthful discretion, where it was easy to find out who leaked the information and Apple did not have to go after you and your company and possibily stomp on your freedom of the press rights, they do not have the source of the leak this time. Even thought you got away with pushing a picture of product which you had no rights to, it does not give anyone the right to give away or share trade secrets or confidential information to the rest of the world.

    As much as I like the rumors and hearing what Apple might be up to, I understand how this information can damage a company. So do hope Apple gets to the source of the information leak.

  13. John says:

    The UTSA says companies must use reasonable means to protect their “trade secret” information. That’s been interpreted as stamping Apple Confidential and using NDAs. So Apple met its obligation. (Apple could not claim it was protected after the fact if no such reasonable means to protect was used.) Do you think Apple needs to use further means to protect sharing of information? Like video-spying or network-activity tracking?

    The UTSA provides an exemption if such “protected” information can be deemed vital to the public interest (could be SEC, OSHA, etc interest). Rumors on what product is coming six months from now does not meet this test. It does not prevent you from publishing but puts a consequence upon it to deter you or to force you to talk to Apple about it. And if you aren’t deterred, the courts get to make the final decision, not Apple.

    And if a customer really wanted to know, if it were that vital to the company’s existence, they should contact Apple and negotiate an NDA. Apple has NDAs with hundreds of companies and hundreds of analysts/journalists. Integrity matters.

    The UTSA is not draconian. It looks to be a well-thought out, balanced approach to information theft, which I believe is much different from the DMCA.

  14. John says:

    Nat, why is trade secret law so much different from privacy law that you have to say that David was condescending?

    Is it not simply privacy for valuable information pertinent to a company (instead of an individual)?

    Can the government not violate my privacy for the public good (law enforcement)? (With court approval as a check and balance!)

  15. Steve Borsch says:

    “I say, f__k that.”

    I concur John though didn’t have the balls to say it so bluntly in my post on March 4th, the day after the CA District judicial decision to let Apple get the data from ISP’s and bloggers.

    What’s interesting is that Apple’s rabid fan base is comprised of rebels and creatives. The exact people that Jobs and Apple has heretofore championed. WTF is he doing going after bloggers? If he can’t control his own company and the people within it, then he should admit he’s a wuss and back off.

    But what if there’s a method to his madness? Maybe, just maybe, he and his board member (Al Gore) *want* this to go to the Supreme Court in order to force the First Amendment issue in order to drive protections for bloggers.

  16. John says:

    One last thought: How far do you go to protect the paparazzi (or former boyfriends) as journalists?

    - Recording (photo/video/audio) of someone in a public place (i.e., beach, hotel pool)
    – Recording of someone in a publicly viewable place (i.e., driveway, roof, deck) within their own private property (residence, yacht)
    – Recording of someone inside their own residence (where I think we all believe there is privacy)

    Do we argue that they are serving the public interest?

  17. shawn King says:

    “Forcing journalism into some kind of a “qualified” box is a very bad idea. “

    Why? We “qualify” doctors and lawyers. I think journalists are equally as professional. So why shouldn’t they be qualified for the job?

    An “unqualified” journalist can do just as much harm as an unqualified doctor – just ask Newsweek.

    Why *shouldn’t* journalists be trained in their chosen profession? If anyone and everyone can be a “journalist” simply by putting pen to paper, doesn’t that grossly undervalue journalism?

    I for one *want* my “journalists” trained in the “art of journalism” – to know what their objectives are, to know what they can and can’t do, to understand not only their job but the *responsibilities and obligations* of that job.

    Unlike others, I hold journalism in high regard – I don’t want “just anyone” being a journalist.

    As to the line “bloggers/journalists”, I think that’s part of the problem – equating the two.

    The people Apple are suing are certainly not bloggers. It can be argued that they are barely “journalists:. They are certainly amateurs, regardless.

    Someone else said, “WTF is he doing going after bloggers?” When did bloggers become above the law?

  18. David says:

    First of all I have to say that I don’t know who this John Battelle is. When he was at Macworld, there are people behind him to make the final call on what to publish and what not. Maybe he didn’t realize that and thought he was the big dog. Now if you are just a security guard of some building but not a policeman, would you suggest the power to arrest any gunman on the street? Or perhaps chasing someone you don’t like on the highway? Yes you can write but that does not give you the right to write just anything. Maybe you have thought too big of yourself?

  19. David says:

    Steve Borsch says, “If he can’t control his own company and the people within it, then he should admit he’s a wuss and back off.”

    I think Jobs know that there’s an issue within, and that’s exactly why he wants those bloggers to reveal the sources. The ultimate goal is to find out who leaked out the confidential information.

  20. Joe says:

    Well I guess if only “qualified” individuals should be considered journalist, and therefore protected (by the way when did you have to be a journalist to be protected by the constitution?), then we really should go back and have the world ignore some rather influential thinkers and writers.

    Let’s see if I can express the way I am thinking about this (I am not a journalist, not even a writer really):

    Pre publishing it was word of mouth (so that’s anyone)

    Then when we could publish the trick was the means to publish (power to the publishers)

    Once everyone could publish distribution was then the constraint on information to the people, so as business found economies of scale in building communication empires news began to get filtered through limited numbers of sources.

    Ok so here we go … monumental shift in power given distribution ability. Now it’s up to people to chose what they read/believe and up to the internet community as a market to punish bad reporting and reward good (the invisible hand can hit hard when information flows openly). Well then we should defiantly start requiring four year degree’s (cause I paid attention in ethics it will change everything), hey how about we register the type of journalist so that people know how to bias what they are reading. Or wait better yet, let’s disallow certain thoughts that have not been proven beyond a doubt.

    Lawyers and doctors have the lives of an individual in their hands so they should be qualified to MAKE DECISIONS FOR that person’s life. “Journalists

  21. Justin says:

    I’m typically a lurker, content to sit and watch. However, after reading the entire discussion once and skimming through a few more times, one phrase continues to stand out in my mind. The following is copied and pasted directly, and hopefully not taken too drastically out of context.

    “…which allows powerful corporation to stamp “confidential” on any and all things inside their company and claim they can jail anyone who publishes that information…” – John Battelle

    All I’d like to say is that I don’t see why the hell that’s not alright. The key phrase in there is “inside their company.” It is an internal operation that is doing no harm to anything, excluding the future sales figures of the competition.

    If Apple started kidnapping kittens and using their living tissue as a conductor in microchips…then by all means, let the public know! Until they start doing something internally that crosses legal or moral boundaries, it’s nothing but criminal activity to leak information.

    As a paid teacher’s assistant at the college I attend, I’m privy to far more personal information on my students than any of my peers. If I violate the contract I signed that says my mouth stays shut, then I wouldn’t be surprised in the least when I ended up out of a job, probably out of the school, and possibly in court.

    What exempts a corporate employee from common decency, and reprecussions when infractions are made?

  22. gpalermo says:

    Justin,

    To answer the questions which I think you are asking, why or why not is it okay to share information no matter what the source of that information. We can all blame ourselves, the US population has this incredible thirst for information about things that interest us. We will go to all most any means to get it.

    Then you have all the other people who want the lime light as being the person who got the rest of us that information. So it turns into to a feeding frenzy.

    The other issue here is so many people want to make this an issue of who is a journalist and what constitutes a journalist. Or make it into a first amendment issue. The only thing people are doing is clouding the waters so no one understand the real issue.

    The real issue is a company has a right to protect it property, and in this case someone obviously stole information and gave it to someone who then decided to publish that information. These are the facts and this is exactly what the courts have up held in spite what John Battelle and others would like the rest of us to believe.

    As such Apple has a right to know who stole that information and take actions against them. And the people who published the information are just trying to hide behind a smoke screen, i.e. I am a journalist, and have first amendment rights.

    I can tell you this much, the people who publish the information got lawyers and those lawyers probably told them if they knowingly received stolen information (i.e. information Marked Confidential) they could be in trouble for receiving stolen property. Apple has said they could pursue criminal actions once all the information has been gathered. You have to ask yourself, does the person who publish the information have a vested interest in keeping Apple from finding out who and what gave them the information. You Bet….

    One last thing, on the theme of what is a journalist. Personal, I do not care how much education or training a person has as long as they can do a good job, are professional and ethical about what they do.

    I know this much, the people who provide all of us information no matter if it is print or media, if they are good they do one thing, they verify that information. If they feel they got information that is damaging to the another party they let that party know they have the information before making it public. Thus giving them a chance to offer their side or provide other information. We all know of times when the publisher of information has held information until the affected party has an opportunity to address it.

    Again, ask yourself did the publishers of Apple information call Apple and say I got this information do you wish to comment. I bet not because if Apple had known ahead of time they had stolen information they would have shut it down. Just like John here, he had a stolen MacII Ci and I bet he never called Apple and told them he was about to go to print on information that he obtain from less then legal means. Is that his fault or his publishing company, or the publics thirst for information.

    Well, John I hope in your present role you do much better, and make sure the information you have is correct and has come from legal sources. Because, if companies like Apple do not win cases like this, who is to say someone does not hack your computer and take you next big articles and publish them to the web before you get a change to get them in your magazines. Or someone at your printing company sending out your electronic files to the p2p networks.

  23. Nat Irons says:

    > why is trade secret law so much different from privacy law
    > that you have to say that David was condescending?
    >
    > Is it not simply privacy for valuable information pertinent
    > to a company (instead of an individual)?

    The day the US adopts a privacy regime that allows me to specify the parameters of my private information as I see fit, and use that as a basis for litigation, you’ll have a point. Under current law, though, my video rental history is far better protected than my medical history.

    In general, I think the treatment of corporations as “people” under the law is perverse, and more often than not harmful. I’m not sympathetic to hypothetical statements that equate the two.

  24. Joe says:

    Let’s continue the list of things I am not. In addition to not being a journalist, or much of a writer, I am not a Lawyer. That said I am confused. A reporter who breaks a story about public policy or government corruption, I am willing to bet, has sources that have signed things saying they need to keep there mouths shut (yes-no?).

    I don’t see many courts forcing that reporter to disclose his source. OK so some would say the source did a good thing, so why would anyone ask. What if the source was wrong about the corruption and only ended up disclosing classified information without benefit to the public? How do you speak to intent? Do the courts pass moral judgment on why the source spoke to the journalist?

    “Ok, if things work out and transparency provides positive utility to the community then we won’t force the journalist to reveal his/her source. If your intent was to do good for the community there is also leeway, cause we don’t want future “good intenders” to be worried about what will happen if they are wrong.”

    So where is the line? Rights are defended absolutely and our courts protect the distasteful so that in the future when:

    >If Apple started kidnapping kittens and using
    >their living tissue as a conductor in
    >microchips…then by all means, let the public
    >know!

    Before everyone loses it that I am comparing Apple to government, try putting tobacco in governments place. Still bothered by the comparison, me to, but its the precedent. You force the people who share information to disclose sources in one case you better bring your skis for that slippery slope; because it won’t be long before tobacco use a case where a journalist was forced to disclose his source at apple to suit its purposes.

    Or maybe the answer is to only protect the journalist when they are going after “Bad Guys”. Who should we put in charge of making that list? Would Enron have been on the list 5 years ago? I think they would now. What about World Com? I am sorry but we protect harmful speech for the greater good and ALL media for the same reason. If apple can find the employee through internal measures by all means, fire him, sue him whatever the law provides, but corporations can would have to lose more than a couple of bucks before I would decide to give-up even a fraction of my right to a free press.

  25. gpalermo says:

    >A reporter who breaks a story about public policy or
    >government corruption, I am willing to bet, has sources that
    >have signed >things saying they need to keep there mouths
    >shut (yes-no?).

    Yes, they do sign something it is called the code of ethical conduct, as such they are required to report anything which is considered unethical. To make someone sign something that says they can not blow a whistle is illegal.

    That said, most people are not willing to put their career on the line to go public about bad things, no one want to be rat snitch. This goes back to the grade school playground rules, you should tell on the school yard bully, but you will not since your friends will think your a snitch. What it better get beat up and take it like man or snitch the person out and have your friends not talk to you. (remember the saying everything you ever needed to know you learned in kindergarden)

    This is where the media serves a very useful purpose, it allow people to use them to get information to the public that otherwise may never have been known.

  26. Dan says:

    Dear all,

    after reading this (quite lengthy) topic, a few things come to my mind… these are (almost) random thoughts, so take it as such.

    - Do you remember, about 15 years ago, when Apple started an internal witch-hunt / crackdown on information leaks? They even hired some ex-CIA agent as their chief of Security ?

    Of course, John Sculley was running the show, back then…

    - (the next one is pure assumption, and I know journalists hate that…)

    + What if Apple was very cleverly controlling information leaks?

    + what if Apple had a lot to gain (including free publicity) from educated people like you fighting on a heavily read blog, such as this one?

    + What if, using marketing techniques that may sometimes get (a bit too) close to MS’, Apple would capitalize on maintaining a captive audience? Convert more switchers? or just to make your mouth water?

    Information control is essential, in such competitive markets, where any marketing or PR mistake can be extremely damaging, if not fatal. And Apple is walking on a thin wire.

    But, people love rumors. Whether good or bad, there will always be leaks, there will always be curious people, and there will always be some form of free speech media, Blog, hand-printed newsletters, emails, bulletin boards, etc.

    I love Apple… Love their products (most of them), love the Keynotes, and even like (most) of Jobs’ traits.

    I also happen to wait eagerly for the next killer App, computer, or technology. and a little sneak preview IS always welcome.

    In conclusion, I believe that High Tech companies know that information is a very slippery animal that can’t be kept in a cage. Learn to tame, then, and teach it new tricks… It might be rewarding…

    (Please forgive an ESL Apple old timer for his rants and poor language/style)

  27. Joe says:

    First and foremost I would like to note that I take offense to the accusation that I am educated.

    Good, now that that’s out of the way, you make some very insightful points. I find it very hard to believe that apple would be able to control the information to the extent you imply. In addition if they did leak some of the information themselves, and do indeed enjoy the PR, and that leaks out … well I am pretty sure the courts would be interested to know that apple has been using their time to stage an elaborate show. That’s quite a risk to run.

    Enough about apple though. How about those search wars… (my money is on an altavista/hotbot merger taking down the big three! who wants a piece of that action?)

  28. Search says:

    I agree with Joe, Before everyone loses it that I am comparing Apple to government, try putting tobacco in governments place. Still bothered by the comparison, me to, but its the precedent. You force the people who share information to disclose sources in one case you better bring your skis for that slippery slope; because it won’t be long before tobacco use a case where a journalist was forced to disclose his source at apple to suit its purposes.