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A correspondent's tongue-in-cheek report from Apple hearing

-------- Original Message --------
Date: Sat, 05 Mar 2005 17:39:48 GMT
From: Macki <macki@rotten.com>
To: Declan McCullagh <declan@well.com>

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

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.


Posted by Declan McCullagh on Mar 07, 2005 in category free-speech

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