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Judge Cites Trade Secrets in Ruling Against Bloggers

The bloggers, who write for sites closely followed by Apple users, allegedly published information about an unreleased product that Apple said employees had leaked in violation of nondisclosure agreements and possibly the U.S. Trade Secrets Act, the Associated Press reported.

In his decision, Santa Clara County Superior Judge James Kleinberg said no one has the right to publish information that could have been provided only by someone breaking the law.

“The rumor and opinion mills may continue to run at full speed,” Kleinberg wrote. “What underlies this decision is the publishing of information that at this early stage of the litigation fits squarely within the definition of trade secret.

“The right to keep and maintain proprietary information as such is a right which the California Legislature and courts have long affirmed and which is essential to the future of technology and innovation generally,” he added.

Kleinberg determined that Apple’s interests in protecting its trade secrets outweighed the public interest in the information.

“An interested public is not the same as public interest,” Judge Kleinberg wrote in his decision.

“Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, (the enthusiast sites) are doing nothing more than feeding the public’s insatiable desire for information,” Kleinberg wrote.

In December, Apple sued several unnamed individuals, called “Does,” who leaked details about an unreleased music product, called Asteroid — to bloggers Monish Bhatia, Jason O’Grady and a person who writes under the pseudonym Kasper Jade whose articles appeared in the online publications Apple Insider and PowerPage, a site published by O’Grady.

PowerPage and Apple Insider have hundreds of thousands of monthly visitors and generate revenue through advertisements, but they are a fraction of the size of more established publications covering the computer industry, the AP reported.

Apple demanded that Bhatia, O’Grady and Jade divulge their sources, and subpoenaed the Internet Service Provider for O’Grady’s PowerPage to obtain materials that may reveal who leaked the product information. The bloggers refused to cooperate, saying that identifying their sources would create a “chilling effect” that could erode the media’s ability to report in the public’s interest.

“Apple is using this case as a desperate attempt to silence the masses of bloggers and online journalists that it cannot control but feels it can intimidate,” Jade, who has been writing about Apple for more than eight years, wrote in an e-mail earlier this week, the AP reported.

“Online publications are typically not backed by commercially funded organizations — a weak spot Apple most certainly recognized prior to filing its suits. The company hopes that it can stop or chill the Apple news industry with its threats.”

The decision dismayed numerous bloggers, journalists and free speech advocates, who have closely watched this case as a test of whether people who write for independent Web sites enjoy the same legal protections as reporters for mainstream publications.

But the judge’s decision did not settle the question of whether the Web publishers were journalists who could therefore be protected from having to divulge sources under California’s shield law.

“Defining what is a ‘journalist’ has become more complicated as the variety of media has expanded,” the judge said. “But even if the movants are journalists, this is not the equivalent of a free pass.”

In his decision, Kleinberg said all journalists could be required to reveal confidential sources when a claim of trade secret is raised.

The Electronic Frontier Foundation, Thomas Moore III and Richard Wiebe, who represent O’Grady, plan to appeal the decision, EFF said in a press release.

“We’re disappointed that the trial court ignored the Supreme Court’s requirement that seeking a journalist’s confidential sources be a ‘last resort’ in civil discovery,” said EFF staff attorney Kurt Opsahl in a statement. “Instead, the court asserts a wholesale exception to the journalist’s privilege when the information is alleged to be a trade secret.”

Neither Apple or its attorneys had an immediate comment on the court’s decision.

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