Apple and the Does

In the matter of Apple and its efforts to uncover the sources cited by various Apple-watching sites (complaint) in protection of Apple’s trade secrets, a judge tentatively ruled last week that he’s unlikely to extend
the protections that journalists get in this regard to bloggers and
other publishing online who are not capital-J Journalists.  (Says the Merc:
“Santa Clara County Superior Court Judge James Kleinberg refused to
extend to the Web sites a protection that shields journalists from
revealing the names of unidentified sources or turning over unpublished
material.”  See also BusinessWeek online.)  He did
not elaborate, and the ruling is certain to be pushed back on by the EFF and others.  I fear for the outcome and that it will be read more broadly than this judge intends it to be.

Why am I fearful?  There are a lot of ways to look at what’s at
stake here.  One is the specific merits of each of the cases
involved, which are frankly pretty complicated and vary one from the
next, from what I’ve seen, and the judge will have a tough time
unraveling the public policy issues from the tricky set(s) of
fact(s).  As always, there’s reason to be fearful of the potentially bad law that
bad facts may make.

The meta-issue — and one which the judge may not actually reach — seems to be the one that Dave and Declan
and Dan
are focused on: in this quicksilver technological environment, with
such change underway in terms of what it means to write “news” and
communicate with others using the web, it’s crazy that the law should
establish second-class citizenship for bloggers or others who are
engaged in the act of presenting or commenting on “news.”  (As Dan
puts it: “We’re moving toward a system under which only the folks who
are deemed to be professionals will be granted the status of
journalists, and thereby more rights than the rest of us. This is
pernicious in every way.”)  The
notion of form over function strikes me as badly outdated.  And,
worse, almost certainly counter-productive to the increasingly
interesting and important public conversation that ordinary citizens
are having with one another online.

Some have suggested that the answer for bloggers is to establish a
professional association.  This seems like a mistake to me —
perhaps even completely the wrong way to go.  I think that the
right thing to do is to continue to build the case that bloggers
deserve no less than Journalists on the merits: that there’s (at least)
parity in terms
of the value/importance/etc. of blogging to journalism, that everyone
deserves a seat at the table; that there’s no substantive reason for
different rules to apply in the law even if the practices of blogging
and journalism are indeed different; that the protection for
journalists is
grounded in the same first amendment that protects bloggers and that
bloggers’ speech is just as valuable.  At the same time, I think
that the
citizen journalist needs not to lose sight of the fact that something
bigger and different and — overall — frankly way more important is
going on than just the tired bloggers-vs.-journalists thing.  Over
time, this is much the best strategy.  And
the courts — if not this court in San Jose — will get the
message.  And hopefully make the law right.

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