In the case of Apple vs bloggers, Santa Clara County Superior Court Judge James Kleinberg ruled that reporters who published "stolen property" weren't entitled to protections.

Interestingly enough, he avoided the debate on whether or not bloggers are journalists and should be treated as such.

"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," Kleinberg wrote. "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."

Citing DVD Copy Control Association v. Bunner, Kleinberg explained "the Supreme Court observed that "[T]he First Amendment does not prohibit courts from incidentally enjoining speech in order to protect a legitimate property right,". The Court went on to note that "It is something of a mystery as to how free and open debate is frustrated by offering property protection to trade secrets." [...] "The mere fact that DVD CCA's trade secrets may have some link to a public issue does not create a legitimate public interest in their disclosure." Ultimately, in the context of injunctive relief - which necessarily raises issues of prior restraint not present here - the Supreme Court allowed the injunction to issue. Similarly the claim of privilege" is overstated in this context. Reporters and their source do not have a license to violate criminallaws such as Penal Code §499c. Bartnicki v. Vopper, (2001)"

Referring to the definition of a journalist and of journalism as stated on Merriam-Webster online dictionary, Judge James Kleinberg writes: "Defining what is a journalist has become more complicated as the variety of media has expanded. But even if the movants are journalists, this is not the equivalent of a free pass. The journalist's privilege is not
absolute. For example, jounalists cannot refuse to disclose information when it relates to a crime."

The Electronic Frontier Foundation, who represents O'Grady, plan to appeal the decision. "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."

I'm curious, if this case had been against an established reporter - let's say from The New York Times - would Apple have sued?

Suggested reading:
Electronic Frontier Foundation - Court Crushes Online Journalists' Rights (includes a copy of the ruling in PDF)

- News sites:
ZD Net blog - Between the lines - What Apple and the Nixon White House have in common
Beta News - Apple Wins: Sites Must Reveal Sources
CNET News.com - Judge: Apple can pursue fan site sources
ABC News - Apple Wins Trade Secrets Legal Dispute
Forbes - Apple Wins Trade Secrets Legal Dispute

- Blogs:
Editorsweblog.org - Apple's suit against three weblogs stirs up blogoshpere activists
Boing Boing - Why Apple should stop suing bloggers
Scobleizer - Apple wins round
Slashdot - Apple Wins Against Bloggers
Techdirt - Judge Says Apple Can Subpoena Rumor Sites
Micro Persuasion - Here Come da Judge

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