Background
The Bear Flag League, a coalition of 80 bloggers with California connections, filed an Application To File An Amicus Curiae And Proposed Amicus Brief with the California Sixth District Court of Appeal in O'Grady v. Superior Court, the appellate proceeding arising from a suit filed by Apple in Santa Clara County Superior Court. In the underlying action, Apple sued unnamed defendants who allegedly revealed trade secrets about Apple's FireWire audio interface for GarageBand on two websites, AppleInsider and PowerPage.
Some Procedural History
December 2004: Apple files suit against Doe 1, an unknown individual, and Does 2-25, inclusive.
December 24, 2004: trial court grants Apple's motion to take expediated document discovery.
February 4, 2005: trial court grants Apple's request to permit specific discovery directed at Nfox, the email service provider for PowerPage.
March 4, 2005: trial court hears arguments on Jason O'Grady and others' motion for a protective order to the subpoena issued on Nfox.
March 11, 2005: trial court issues a ruling on the motion (in Apple Computer v. Doe). While the Court made "no findings as to the ultimate merits of Apple's claims," it orders defendants to comply with Apple's discovery attempts to identify the source of the leaked information. Nfox is ordered to comply with the subpoena.
March 22, 2005: Online reporters file appeal to March 11 ruling.
April 19, 2004: Bear Flag League files application for amicus brief and proposed amicus brief
The Court's Ruling and the Bear Flag Brief
In the March 11 ruling, Hon. James P. Kleinberg states that the Court's decision to deny the request for a protective order has little to do with constitutional protections of journalism. Rather, "What underlies this decision is the publishing of information that at this early stage of litigation fits squarely within the definition of trade secret. . . The Court sees no reason to abandon that right [of trade secret protection] even if it were to assume, arguendo, movants are "journalists" as they claim they are." (p. 13)
The Bear Flag League is a coalition that strongly advocates protection for bloggers. In their proposed amicus brief, the BFL opens with the argument that "news-gathering" bloggers are entitled to immunity under California's "Reporter Shield." While this is an important and closely-monitored issue to bloggers, it is not directly responsive to the Court's reasoning in the March 11 decision.
To convince the Court to overturn its decision to deny the request for a protective order on a subpoena of an email service provider, the nature of the information needs to be put at issue. The BFL brief does go on to address this point by arguing that the subpoena on Nfox would violate the Stored Communication Act, 18 U.S.C. 2701. Though the BFL's argument is painted with broad strokes, it may prompt the Court to ask for a full amicus brief on the issue.
The prospect that bloggers may face liability and/or sanctions for reporting certain information that may be protected has serious implications on weblogs and on free expression. Among the current legal issues impacting blogging, Apple v. Doe represents a potential milestone in the development of the weblog medium. Bear in mind that this litigation is still in the early phase of discovery.
Notable blog quotables from the March 11 ruling
"...an interested public is not the same thing as the public interest." (p. 12)
"Let there be no doubt: nothing in this order is meant to preclude the exchange of opinions and ideas, speculation about the future, or analyses of known facts. The rumor and opinion mills may continue to run at full speed." (p. 13)
The Lawyers
Jeffrey Lewis and Benjamin P. Pugh of ENTERPRISE COUNSEL GROUP, ALC, Irvine, CA, for Bear Flag League
Kurt Opsahl, EFF counsel for journalists Monish Bhatia, Jason O'Grady and "Kasper Jade"
George A. Riley and David Eberhart of O'Melveny & Myers LLP, San Francisco, for Apple, Inc.
Posted by Andrew Zangrilli on April 19, 2005 05:31 PM | TrackBackThe Blawg Review, a "Carnival of the Blawgs and Law Blog Reviews by Legal Bloggers," has recently launched. Evan Schaeffer hosts the first edition.
This hilarious quote from Judge Posner hangs on the mantle:
Welcome to a world where inexperienced editors make articles about the wrong topics worse.
Posted by Andrew Zangrilli on April 14, 2005 08:40 AM | TrackBackNewsday reports: NYAG Eliot Spitzer came under fire when a sponsored link to his gubernatorial campaign site appered after Google users searched on "AIG." American International Group (AIG) is involved in Spitzer's ongoing investigation of insurance industry practices in New York.
Spitzer's spokesman blamed the misplaced ad link on a campaign staffer, "a wonderful computer geek who just didn't know what he was doing."
[Note: The Blogbook does not receive sponsorship, donations, compensation, or gifs from any political entity or campaign committee.]
Posted by Andrew Zangrilli on April 11, 2005 08:19 AM | TrackBackAn article by Rick Hasen (Loyola Law School professor and Election Law blogger) entitled "The Ripple Effects of the FEC's Rules on Political Blogging: Why They Will End Up Undermining Limits on Corporation and Union Campaign Finance Activities," appears at FindLaw's Writ and Modern Practice.
Posted by Andrew Zangrilli on April 6, 2005 08:22 AM | TrackBackAs reported in Personal Democracy Forum, the San Francisco Board of Supervisors will soon vote on city ordinance concerning the "Disclosure and Filing Requirements for Electioneering Communications."
As the ordinace is broadly focused on communications sponsored by political candidates, there is uncertainty over whether the legislation will have an impact on bloggers.
Posted by Andrew Zangrilli on April 4, 2005 08:23 AM | TrackBackAs reported in this Wired News article, on March 23, the Federal Election Committee issued a "Draft Notice of Proposed Rulemaking on Internet Communications."
The proposals are intended to "ensure that political committees properly finance and disclose their Internet communications, without impeding individual citizens from using the Internet to speak freely regarding candidates and elections."
Posted by Andrew Zangrilli on April 1, 2005 10:22 AM | TrackBack