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Quote of the Day - ... [A] fundamental purpose of the First Amendment 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. - Presiding Justice Conrad Rushing, from the O'Grady v. Apple opinion
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Court Declares Bloggers Journalists

The verdict is in, and the Court of Appeal sided with bloggers:  we're journalists and our work is protected under the California Reporter's Shield law.  I can't say I told you so, but I handicapped it here two to one in favor of bloggers, and was wrong.  It was a 3-0 decision, authored by Presiding Justice Rushing and joined in by Associate Justices Eugene Premo and Franklin Elia

Plaintiff Jason O'Grady, who publishes PowerPage, posted information about Apple's "super-secret" Asteroid, and his email ISP promptly received a subpoena from Apple seeking to identify those Apple employees who Apple alleged divulged trade secrets about the device, designed to plug a guitar into a computer, not necessarily a novel idea, but new for Apple. 

O'Grady and others who also later published about the device fought back, but lost in the trial court.  They promptly took a writ, and here we are today, with an appellate decision favorably ruling that bloggers are journalists and prohibiting Apple from accessing O'Grady's email and sources.  Apple has until early July to seek review from the California Supreme Court, but the company will most likely going to receive a postcard (see page 3) for its efforts. 

The decision rebuffs Apple's argument that the publishing of information constituted criminal theft of trade secrets, especially here where Apple could have ferreted out its own employees who leaked the information.  The Justices heavily rely on privacy rights, the Reporter's Shield and the federal Stored Wired and Communications Act for protection, but in the end, it comes down to good, old-fashioned First Amendment right of freedom of speech.  If Ben Franklin had a computer, he would have been proud.

Apart from O'Grady's position as the blogger staring down Apple's subpoena, there were a host of Amicus Curiae in the case, including the Bear Flag League, ably represented by Jeff Lewis and Justene Adamec, who wrote the BFL's brief.  MIPTC had the privilege of arguing the BFL's appellate brief, even if it was for only seven minutes.  The BFL's position vis-a-vis bloggers as journalists was vindicated, and its brief was cited by the Court in Footnote 21. 

In-depth coverage of the decision can be found on Bag & Baggage, SoCal Lawyer, Dan Gillmor, Lauren Gelman, Bob Ambrogi and the Volokh Conspiracy.  All the details can be found on the Electronic Frontier Foundation website, and a recent update on Surfette, the site of the journalists' journalist.

The decision is significant not only in the law, but also given that the opinion liberally cites to numerous online sources.  In particular, the court racked up eleven cites to Wikipedia.  This is likely one of the most tech-savvy decisions I've read.  Joe Gratz claims the opinion was written by clerks who are wired, but having been at the hearing and listened to and responded to the Justices' tech-savvy questions, I can verify white hair is not an indicator of a lack of computer knowledge.  These justices were and are wired. 

6/12/06 Update:  you can listen to the oral arguments here.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, May 31, 2006 at 16:52 Comments Closed (0) |
 
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