The judge in an early stage of Apple vs. bloggers has made a decision. Before I get to it, let me draw a simple analogy for you.
Let's say you have a very popular restaurant, and its claim to fame is special recipes that it guards like the gold in Fort Knox. Call the restaurant Cafe di Perugia. It could be in a strip mall in any upscale suburb in America... but wait, let's put it between San Jose and Palo Alto on El Camino Real, the Main Street of Silicon Valley.
So some enterprising writer decides to tell the world about these recipes, and he cultivates a relationship with someone in the restaurant. One day, he gets a fax with the latest recipes. He publishes them.
Now I don't care if this writer works for The New York Times, CNN, The Palo Alto Weekly, The National Enquirer, or Hot Eats and Tasty Treats Blog -- this guy deserves no protection in the legal system as to the identity of his source.
Why? Because he has essentially shared stolen property -- proprietary recipes -- with the world. That's not journalism. That's abject, mean-spirited (or clueless) stupidity.
Now... stay with me... just down the road on old El Camino is a chain restaurant, The Train Wreck Trattoria. Mr. Cruges Flynnskint, Chief Customer Dissatisfaction Officer, has decided to rotate the hours the refrigeration is turned on for perishable foods.
This, of course, is a cost-cutting measure, to reduce electricity bills by a few dollars a month. "Drops straight to the bottom line," Mr. F brags to his bewildered staff.
Drops straight to the Emergency Room is more like it, but anyway, 1-2 am, refrigeration on. 2-3 am, refrigeration off. Pretty soon perishable food starts to look a little like a science experiment. And customers start dropping like flies as food poisoning sets in.
A worried employee goes to a writer with a copy of the memo explaining the new timers that will turn the refrigeration on and off. The writer checks around and confirms that this is really happening. He reports it.
It doesn't matter if this writer works for Hot Eats and Tasty Treats Blog, a restaurant trade magazine, The Wall Street Journal or Gourmet Magazine. This writer deserves protection under journalistic shield laws. For damned sure.
Why? Because this writer is publishing information in the public interest. Like, you know, to keep people from getting sick or getting killed.
The first writer is disclosing proprietary trade secrets with no public interest motive in mind -- no viable one, anyway. The first writer is practicing a very sophisticated form of thievery.
With that analogy in mind, I'd like to put the World Copywriting Blog stamp of approval, for what it's worth, on Judge James P. Kleinberg's decision today not to grant shield law protection to the bloggers who published Apple's new product description before Apple announced it to the world.
In other words, the bloggers don't get to hide the names of their sources, under the law.
ZDnet.com reported:
The information about Apple's unreleased products "is stolen property, just as any physical item, such as a laptop computer containing the same information on its hard drive (or not) would be," the judge wrote. "The bottom line is there is no exception or exemption in either the (Uniform Trade Secrets Act) or the Penal Code for journalists--however defined--or anyone else."
And ZDnet also reported:
"The public has had, and continues to have, a profound interest in gossip about Apple," the judge ruled. "Therefore, it is not surprising that hundreds of thousands of 'hits' on a Web site about Apple have and will happen. But an interested public is not the same as the public interest."
I added the italics to the last sentence. Great distinction, Your Honor. Seriously.
The judge also courageously, and wisely, refused to define whether bloggers are journalists. You might think he chickened out, but I disagree with you and I support him on that move. It's a big question, and it's 100% irrelevant in this aspect of this case.
Because whether or not bloggers are journalists, they were not in a position to take advantage of the California's Shield Law -- anymore than a very creative burglar who broke into someone's store and stole some merchandise would be able to claim immunity from prosecution under the First Amendment freedom of speech provision by claiming that taking the merchandise was "act of free speech."
Theft is theft. C'mon, guys.
In the process of writing about this case, which admittedly has nothing really to do with copywriting but is very interesting to me nonetheless, I've decided that bloggers are journalists of a sort. And are probably entitled to a lot more rights and protections than we are currently recognized for.
But with rights come responsibilities, and, even more important, the necessity for making intelligent distinctions. If you can't figure out the difference between stealing someone's formula for a secret blend of herbs and spices, versus warning the world about a true public health hazard, then maybe you'd ought to ease up on the disclosure part of your writing. Until you know the difference.
David Garfinkel
Publisher, World Copywriting Newsletter
Thanks to Executive Contributor Jim Van Wyck for alerting me to news of the court decision today.
That is a very good distinction that the Judge made. Wisdom abounds.
Thank you for the write up also, I enjoyed it very much.
Posted by: Phil Baines | March 29, 2005 at 07:52 AM