Apple dealt setback in suit against online journalists

A California appellate court on Friday denied Apple Computer's bid to identify the people who leaked product information to Mac enthusiast sites, ruling that the state reporter's shield law protected bloggers and online reporters as well as traditional journalists.

In a unanimous ruling, the state appeals court found that online reporters for three online publications were protected by the shield law, as well as the constitutional privilege against disclosure of confidential sources, and could not be forced to hand over unpublished materials. In trying to gather evidence for the lawsuit, Apple also had subpoenaed email service provider Nfox.

The judges ruled that the subpoena against Nfox was also unenforceable because it violated the federal Stored Communications Act, which requires that subpoenas only be directed to individual account holders.

Apple is attempting to find the people who leaked information it claims were trade secrets related to GarageBand, the company's software for recording and editing music on the Mac. Apple filed a lawsuit in December 2004 in Santa Clara County against unnamed individuals who allegedly gave the product details to reporters at,, and

The appellate court decision reverses a lower court that refused to extend to the online publications the same protections granted California journalists.

"We will issue a writ of mandate directing the trial court to grant the motion for a protective order," the appellate court said in its 69-page ruling.

Apple, based in Cupertino, Calif., was not immediately available for comment.

The Electronic Frontier Foundation, which filed a petition on behalf of the journalists, called the decision a "victory for the rights of journalists, whether online or offline, and for the public at large."

"The court has upheld the strong protections for the free flow of information to the press, and from the press to the public," Kurt Opsahl, the EFF attorney who argued the case before the appeals court last month, said in a statement.

In ruling against Apple, the judges wrote, "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news."

"Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."

Memetic refers to the spreading of information among people.

In addition to protecting every "citizen reporter" who distributes news over the Internet, the ruling also was a victory for electronic privacy in the use of email, the EFF said.

"The court correctly found that under federal law, civil litigants can't subpoena your stored email from your service provider," EFF attorney Kevin Bankston said.

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