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Apple’s Flawed Stance on Information

The computer company’s legal standoff with bloggers may morph into more than just a large legal headache.
April 21, 2006

A few months back, I received more than a few responses to a blog post I wrote stating my belief that Steve Jobs’ ambitions for entertainment glory would supersede his company’s desire to protect consumer rights (see “Apple – A Tragic Love Story”). While I’m not entirely a glutton for punishment (I don’t think), it’s hard for me not to lump Apple’s two-year legal battle with fan sites and bloggers into the same category as the DRM (digital rights management) debate.

After all, isn’t restricting consumer uses with DRM very similar to restricting the flow of information by claiming those who post in online-only venues shouldn’t receive the same legal protections as traditional print (and one would assume, television and radio) journalists? I think they have to be considered part of the same discussion – who controls how information is distributed – even if from the top-level view, the type of content and manner of restrictions are different.

My former Wired News colleague and current News.com reporter Declan McCullagh has written a two stories – here and here – about the ongoing legal wrangling, which began in 2004.

From McCullagh’s “Apple argues for blogger records”:

In the lawsuit, filed in late 2004, Apple is not suing the Mac news sites directly, but instead has focused on still-unnamed “John Doe” defendants. The subpoena has been sent to Nfox.com, PowerPage’s e-mail provider, which says it will comply if legally permitted.

In a separate case, Apple directly sued another enthusiast site, Think Secret, alleging that it infringed on Apple’s trade secrets in soliciting inside information.

I will say this, in defense on Apple on this particular issue. It’s unclear to journalists exactly where blogs fall in the realm of freedom of the press protections. I’ve had numerous, and spirited, debates with industry friends who swear up and down that blogs are not journalism, although when you begin to stick them on details, their arguments are oftentimes less sure. However, the fact that we can’t agree on the issue surely makes it okay for Apple to pursue the issue in court.

In fact, it would be silly for me to argue otherwise. However, it would also be silly for me to ignore the fact that this type of Mac-Think – that the company should be the decider of how information is used – is what concerns me the most.

And if we play the blog debate out a bit, say, into the realm of podcasts, a place where many bloggers are going, Apple’s stance gets even trickier. Here is a hypothetical:

While at a conference, a blogger, in the course of reporting on something Apple related, comes across a snippet of information on a not-yet-released product. Having a very cool blog, complete with podcast functionality that can be accessed through Apple’s iTunes’ podcasting section, this blogger records a three-minute segment. Let’s go a bit further, and say that the podcast was recorded using Apple hardware and software.

Three questions spring to mind:

1) Now, in this case Apple is both the technology provider and distributor for information about its own company, information that it decides shouldn’t be made public. What is their stance?

2) If they provide the technology and distribution network to podcast – and have built a hardware and software business around the phenomenon – do they have the right to then oversee how everyone uses the technology and distribution network?

3) And, let’s assume they do have the right to restrict the information, do they then have the obligation to police their network (as they now have proven they can do) if Microsoft calls? More importantly, can Microsoft then sue Apple – the provider of the technology and the distribution network – if a podcaster puts something out about another company, in this case, Microsoft?

As many will invariably point out, I’m not of any legal mind to answer these questions (although, like all of you, I have my own opinions on the matter). However, this is the slippery slope that Apple – and the rest of us – may soon find ourselves on if it prevails in court.

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