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New Age judge blasts Apple

Rapture in San Jose

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Californian appeals court Judge Conrad Rushing has put the public interest above private corporate interest in a verdict that deals a blow to Apple Computer. That's the good news.

The bad news is that the New Age judge, in making the correct decision using such bizarre supporting evidence, he's handed Apple enough ammunition to overturn the decision, should it wish to pursue the case.

Two years ago, Apple subpoenaed the ISPs into disclosing the traffic information which it said it needed to identify the source of trade secret violations, published on the websites O'Grady's PowerPage, Apple Insider and MacNN.com. O'Grady's had revealed details of an unreleased music hardware product, Asteroid. A district court agreed with Apple that the amateur news sites weren't protected by California shield law, designed to protect journalists' sources.

The appeal, backed by the EFF, contested that newsgathering shouldn't by the restricted by the publication medium, in this case a website, or by membership of a "professional" body, such as a trade association. Judge Rushing agreed, and castigated for Apple for failing to look harder inside the corporation for the identity of the leakers. Apple didn't examine storage logs, for example, and failed to interview employees under oath.

The case has been misreported as a "victory for bloggers", which simply echoes Apple's own flawed legal arguments. Many news websites, including the three plaintiffs, are not weblogs - while many websites and weblogs are maintained by professional authors and journalists. So if you maintain a weblog devoted to say, your cat, and one day post a trade secret, you may not be entitled to the protection the Judge applied to the veteran amateur news sites.

That's a laudable commonsense decision. Only in the United States is the pernickity distinction question "Are Bloggers journalists?" ever raised. But only in the United States do journalists attempt to class the business as a profession, rather than the craft or trade it really is.

However Apple has struck gold in finding a techno utopian in a state of rapture. Judge Rushing cites Wikipedia as a source, a mistake which earns students an 'F' grade today. He talks about the need to disregard economics and sociology in favor of a "memetic marketplace" - whatever that is - and allows himself some flights of technological rapture.

"While it may be tempting to think of Asteroid as a mere gizmo for nerds," he writes, "such a device may also be the means by which the next Bob Dylan, Julia Ward Howe, or Chuck D conveys his or her message to the larger world. Music is of course a form of speech, from the stirring hymns of Charles Wesley to the soaring meditations of John Coltrane.

Julia Ward Howe: how did she manage without an Apple computer?

Julia Ward Howe: managed without an Apple Computer

"Who knows what latter day Woody Guthries may be lifted from obscurity by this new technology, in defiance of the considered judgment of recording executives that once might have condemned them to obscurity?"

Oh dear.

Talent always finds an outlet, appropriating and adapting whatever technology is to hand. The Supremes will have fun with Conrad, if Apple wishes to pursue the case. ®

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