Intellectual Property Law

In a noteworthy case pitting a trade secret plaintiff?s efforts to identify the source of the leaked information against bloggers? rights as journalists, a California appeals court has rejected Apple Computer, Inc.?s efforts to subpoena e-mail received by the publishers of online news magazines.   

After inside information about Apple?s products was posted on a blog, Apple sued the anonymous sources of the information as Doe defendants and, in an effort to identify the source of the leaks, sought authority from a California trial court to issue civil subpoenas to the publishers of the web sites where the information appeared, and to the email service provider for one of the publishers.  Apple argued that the inside information could only have been obtained through a breach of an Apple confidentiality agreement.  Apple also contended that the bloggers were not acting as legitimate journalists deserving of constitutional free press protections, and that in any event, there should be no shield law protection as a matter of public policy for anonymous sources who have committed trade secret theft. 

Though Apple had convinced the trial court to permit it to issue the subpoenas, last Friday the California court of appeals reversed the trial court and directed that the subpoenas be quashed.  The appellate court held that the subpoena to the email service provider could not be enforced in light of the federal Stored Communications Act, and explicitly found that this federal act protects private email from civil subpoenas.  The appellate court also found that any subpoenas seeking unpublished information from the bloggers would be unenforceable through contempt proceedings in light of the California reporter?s shield, which is enshrined in both the state constitution and the Evidence Code.  Finally, the appellate court also found that Apple?s attempt at identifying the blogger?s sources was barred by the conditional constitutional privilege against compulsory disclosure of confidential sources. 

The appellate court?s decision drew enough interest to receive at least nine ?friend of the court? amicus briefs, including submissions from Intel, the ACLU, and the California Newspaper Publishers Association.  It remains to be seen whether Apple will attempt to take the issue to the California Supreme Court.  If not overturned, last Friday?s ruling may turn out to be a landmark decision addressing the intersection of trade secret law with privacy and free press rights. 

Today's Blogger: Eric Bass