Quote of the Day - If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas. - George Bernard Shaw
O'Grady v. Apple Arguments Submitted To Court - Testing Subpoena Of Blogger's Sources
MIPTC wasn't blogging it live from the Sixth District Court of Appeal, but here's the handicap version of what I saw and heard from an advocate's perspective (yesterday, I argued the Amicus Brief submitted by the Bear Flag League in the case of Jason O'Grady, et al. v. Apple). Sure, there are plenty of news stories out there all the way from AP to ZDnet, and lots of reporters who listened to the arguments. Here's the take from someone who made the arguments.
The appellate court panel consisted of Presiding Justice Conrad Rushing and Associate Justices Eugene Premo and Franklin Elia. The BFL's position on the case straddled the middle: it agreed with Apple that this case was not ripe for decision, and it agreed with O'Grady that both bloggers are journalists (a point that everyone seemed to concede) and blogger's sources should be kept confidential. Here's the tip why the BFL thought the case wasn't ripe: Apple argued that the post that O'Grady put up was a trade secret, exposing the blogger and the source to both civil and criminal liability. Essentially, it's a case of bad facts could make bad law. The legal justification for the abstention argument was that O'Grady hadn't been made a party to the suit.
The BFL's position was bolstered by an opinion released just two days before, and written by Justice Elia. It held that in an internet First Amendment issue, the court should abstain where the subpoena sought information from individuals who were both anonymous and non-parties. In the O'Grady case, the only difference was that we knew the identify of O'Grady and the other posters of the Apple-alleged trade secret. Surprisingly, when I brought up the case in oral argument, neither Justice Rushing nor Justice Premo had read it. Justice Rushing replied, "We sit on different panels. We don't always read each others' opinions." I suspect that none of the other attorneys arguing the case for Apple, O'Grady or Intel had read it either; no one else talked about it.
Apart from the BFL's position, the justices were fully briefed on the merits and seemed to support O'Grady's positions, even taking issue with the extent of the value of Apple's trade secret. Justice Rushing said that the product that Apple claimed was a trade secret code named Asteroid - was technology that was 15 years old - "plugging a guitar into a computer," as he put it. Justice Elia was unsympathetic as well, pointing out that Apple had done little to protect its trade secret, and instead was asking the court to act as Apple's "personnel department." and help Apple find "the snitch."
O'Grady's arguments were even more sympathetically received, and his counsel, Electronic Frontier Foundation staff attorney Kurt Opshal got a number of "softball" questions. Quite the opposite was true for the other side, and Apple attorney George Riley and Amicus Intel's attorney, Dan Bagatell, were treated the same (and I dare say confused as representing the same party) by Justice Elia. Both got grilled like steaks.
My box score? Two (Rushing and Elia) to one (Premo) in favor of O'Grady and against Apple.