Apple Declines To Appeal Blogging Decision

Apple Computer has decided not to appeal a California state appeals court ruling that went against the company in May and said bloggers were entitled to the same privacy privileges for their sources as mainstream journalists.

The case involved Apple’s suits against 20 unnamed and presumably unknown individuals, referred to in the court filing as “Does,” for leaking confidential materials on an Apple product under development to several Web publications, including the Web sites AppleInsider and PowerPage.

As part of its investigation, Apple   subpoenaed Nfox — PowerPage’s email service provider — for communications and unpublished materials obtained by PowerPage publisher Jason O’Grady. The case became a debate as to whether or not online journalists have the same right to protect confidential sources as more traditional print publications like the New York Times. .

A Santa Clara trial court upheld the subpoena in March of 2005 and the Electronic Frontier Foundation (EFF) appealed. The May decision overturned a lower court ruling in March that bloggers do not have the same confidentiality rights as print reporters.

“We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news,” the judges wrote in their ruling. “Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace,” they wrote.

Apple could not be reached for comment at press time. The EFF attorney who argued the case, Kurt Opsahl, is ecstatic. “We’re delighted they have taken that route. We all get to move on and have this decision stand,” he said.

Opsahl said the decision is a significant one that other courts will look to for guidance as the issues of online journalism come to the fore. “We believe strongly in online journalists and their right to keep sources and look to protect those rights in other jurisdictions,” Opsahl told

“What makes journalism journalism is not the format but the content,” he added. “If someone is engaged in journalism and they are using a blog to do it, then they should be treated as a journalist. The reporter’s privilege is intended to protect the gathering and dissemination of news and is not limited to a particular format.”

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