-------- Original Message -------- Date: Sat, 05 Mar 2005 17:39:48 GMT From: Macki <macki@private> To: Declan McCullagh <declan@private> Apple's Orchard of Terror By Pip Macki Silicon Valley Bureau Chief & Cub Reporter, Politech Mailing List SAN JOSE, Calif., Mar 4--Apple Computer presented its case in Superior Court today for the right to subpoena three websites for information on who leaked trade secrets to them about exciting new Apple products. It had been another long, desperate night of cruising online help wanted ads for this reporter, when suddenly at 2 A.M. the assignment came in. With 60 miles to travel and dependant on public transportation, I heroically trekked a mile on foot in pouring rain to endure the long commute to the courthouse. As of this morning it had been a full week since I humbly submitted my resume to Apple Computer, pleading that they consider my talents when filling the thankless entry-level position of Legal Assistant. As time continued to pass with no response, I was in a constant losing battle with self-doubt. What went wrong? Did they not like me working for 2600? Was it rotten.com? Did they even read it? Was being an EFF groupie not considered a "qualification"? I was determined to brave the weather, the commuters, and three forms of public transit to see just what Apple Legal is made of. [Ed. note: Macki really does need a job, someone please hire him.] As I sat stewing for an hour in my rain soaked jeans on CalTrain, I fantasized like a school girl waiting for a Backstreet Boys concert. Would these rockstar titans of litigation deliver? Of course they would. The EFF never disappoints. Whether Apple could keep up remained to be seen. I arrived at the court house late and in a hurry. After surrendering my camera, belt and other objects to the guards I continued to set off magnetometer. I offered to take off my steel toed shoes, but the guard just told me to lift the legs of my pants and then let me through. The court room was much smaller than any I've previously visited. The audience benches were replaced by comfortable leather arm chairs, five on either side of the doors, and two rows of six along one wall. The room was filled to capacity. All five attorneys stood behind a table in the center of the room facing the judge. Judge Kleinberg was amused to see such a turn out for a discovery hearing. He addressed the crowd directly and reminded everyone that it's only about discovery and that they wouldn't be deciding any of the issues today, adding "sorry to disappoint." But, I for one, totally wasn't disappointed. The court continued delivering its opening monologue. The judge addressed questions to each side, some more rhetorical than others. He asked Apple why they still care, whether the issue was now moot and whether leaks are simply to be expected in Silicon Valley. Judge Kleinberg was really on top of things, he even quoted from a blog entry he found about the case, in which a blogger comments "I wish I had studied [journalism] in school." He also mentioned that he was considering whether this situation should be covered by the Bunner precedent. Surely no one was more pleased to hear this than Bunner attorney Tom Moore, who was among the attorneys standing before the court. Disappointingly that was as far as the Bunner discussion went. The judge continued on with a long series of what-if's, concluding with a mention of the Pentagon Papers. Eventually he called a 15-minute recess for the parties to conference, think about his questions and prepare their responses. Upon their return, super-star EFF attorney Kurt Opsahl laid down some science. First off he reminded all of those suckers that today was about protection from discovery, not protection from liability. It seemed that despite the judge's reminder to everyone that the issues were separate, fools were still missing that. This is civil court, not criminal, and the proper balance is determined by the Mitchell case. So the judge was all like "well, what's the public interest here?" and Kurt was all "Apple has a lot of fans. The PowerPage gets 300,000 visitors a month. That's more readers than traditional print publications like MacWorld. There's a lot of interest." and the judge was all nodding and stuff. I don't think anyone seriously thought that Apple would get anywhere by trying to do the whole defining who is a journalist thing, even Apple didn't go at that too hard. One of the other rules of Mitchell is that the plaintiffs have to exhaust all other reasonable means of getting the information they are after. This is where Apple was super lame. Opsahl told the judge that Apple hadn't exhausted other options, and the judge was still nodding awesomely. He went on to say "instead of using discovery as a last resort, they are using it as a first resort." Kurt was schooling all these suckers so fast that the court reporter had to ask him to slow down twice, it was way too much science for her to handle. But I'm totally used to it, so I was just like "damn, this is dope!" Having gotten served, it was now Apples turn to try and reclaim some cred. In case you guys are wondering, the Apple attorney was a total wanker. Ironically almost everyone at EFF uses Macs, but Apple's stuffy lawyers had "Windows Users" written all over themselves. So what did Apple have to say about exhausting other methods? They did computer forensics, checked security, checked logs, then their investigators questioned almost 30 employees. Now normally you'd want to question these people under penalty of perjury, take their depositions, things like that. The judge and Opsahl had already pointed this out. So the Apple dude used this really dramatic, grave, tone of voice and said loudly that they were questioned "UNDER THREAT OF LOSING THEIR JOBS (if they provided misinformation)." He seriously said that like it was supposed to impress everyone. As if they wouldn't be fired if they admitted to being the source of the leak. It was totally LOL. Kurt was all like "Surely no depositions are not enough." Apple touched on the journalism question a couple times, questioning whether they were acting as journalists at that specific time. They went on to talk about the "grave injury" they suffered in terms of competitive advantage, claiming that this was the "heart of the matter" and using that same silly ultra-dramatic tone of voice. Apple also tried to draw a distinction between the public interest of protecting the identity of a whistle blower, versus that of someone who disseminates highly technical information that would be helpful primarily to competitors. They overlooked the supreme nerdiness of "Apple Fans" and the fact that they actually would be interested in such details. Judge Kleinberg concluded by thanking both sides and complimenting them on the extreme quality of their briefs, then he took the matter under submission. Even if he rules against Apple because of the exhaustion issue, they could still come back after taking some depositions and try again. Hopefully today at least bought the EFF some time-- err I mean, I'm totally impartial, and I'm sorry I said all those nasty things about you Apple, please forgive me, I love you so much I just get crazy sometimes. I'm still waiting for that interview baby, I'll make it up to you, I swear. ### _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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