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March 05, 2005


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» 'This is Pernicious in Every Way' from Snarkmarket
Dan Gillmor has a sharp summary of recent goings-on re: bloggers' legal status this morning. This thing about regulating blogposts as political contributions is whack. And also indicative of the errant direction of our campaign finance law: Rather than... [Read More]

» Confidential sources from aTypical Joe: A gay New Yorker living in the rural south.
It did occur to me earlier today - when I wrote, in the context of FEC regulation of political speech, that I'm in the bloggers are not journalists camp - to wonder, but what about bloggers and confidential sources? For... [Read More]

» The gathering storms over speech from New Media Musings
Dan Gillmor blogs on The Gathering Storms Over Speech. Dan echoes the concerns several of us have been raising over the past several days. Excerpt: Apple Computer's disgusting attack on three online journalism sites, in a witch hunt to find out who (if... [Read More]

» The danger of defining journalism from Martin Stabe
Apple Computer&rsquos;s attempt to subpoena web site owners to discover who has been leaking confidential company information to them took a worrying twist for bloggers this week when a California judge ruled that the web sites do not qualify for... [Read More]

» APPLE VS. BLOGGERS, PART II from Michelle Malkin
Dan Gillmor, a well-known technology writer who used to be a columnist at the San Jose Mercury News, weighs in on Apple Computer's attempt to force three bloggers to reveal confidential sources: A judge in California has decided that the... [Read More]

» APPLE VS. BLOGGERS, PART II from Michelle Malkin
Dan Gillmor, a well-known technology writer who used to be a columnist at the San Jose Mercury News, weighs in on Apple Computer's attempt to force three bloggers to reveal confidential sources: A judge in California has decided that the... [Read More]

» Free Flow of Information Act of 2005 from Don Singleton
Potential problems in the Free Flow of Information Act of 2005 [Read More]

» Protect us from our protectors from the smedley log
I came upon Dan Gilmor's post on the Apple court decision regarding bloggers as journalists. I share Dan's fears on this subject. Having studied journalism a bit, I'm extremely uncomfortable with the courts ideas of what constitutes legit [Read More]

» When I Stopped Being a Journalist from A Little Pollyanna
There are some murky lines between journalist and blogger, I suppose. I can't help but think there are the same murky lines between journalist and freelance writer. Here is Dan Gillmor's blog entry. The Gathering Storms Over Speech Apple Computer's... [Read More]

» Apple vs. Think Secret from John Moltz
There's a lot of hand-wringing about Apple's lawsuit against rumor sites that published information on upcoming products. Dan Gillmor, incorrectly I believe, conflates the Apple situation with the recent comments by a member of the FEC. First of ... [Read More]

» Forget about Free Speech from sLop
Dan Gillmor on Grassroots Journalism, Etc.: The Gathering Storms Over Speech Dan gives an overview of how Apple, recent legislation and politicians under corporate influence are doing everything and anything to take away our Freedom of Speech rights. F... [Read More]

» Is The White House Pushing Back? from small dead animals
I've been watching the debate developing this week around two closely related developments - mutterings about regulating blogs through Federal Election Commission and the fallout of the Apple case. In a case with implications for the freedom to blog, a... [Read More]

» Confidential sources from aTypical Joe: A gay New Yorker living in the rural south.
It did occur to me earlier today - when I wrote in the context of FEC regulation of political speech that I'm in the bloggers are not journalists camp - to wonder, but what about bloggers and confidential sources? For... [Read More]

» Is The White House Pushing Back? from small dead animals
I've been watching the debate developing this week around two closely related developments - mutterings about regulating blogs through Federal Election Commission and the fallout of the Apple case. In a case with implications for the freedom to blog, a... [Read More]

» De journalistieke kant van weblogs from M i n i t r u e . n l - ignorance is strength
De blogosphere staat de laatste dagen bol van de berichtgeving over de rechtzaak van Apple tegen drie weblogs.

Three blogs which published sensitive information about upcoming Apple products could be made to disclose where the leaks came from [Read More]

» Apple v. Bloggers: the Wrong Test Case for Blogger Rights from Desirable Roasted Coffee
Dan Gillmor is outraged at the latest development in the Apple v. Does case. On March 3, Judge Kleinberg tenatively agreed with Apple that AppleInsider and PowerPage , who published stories allegedly based on trade secrets leaked by Apple insiders [Read More]

» Under Attack from Andrew Lark
Our rights are under attack. We all seem so preoccupied with figuring out how to enjoy, play in, and monetize the blogosphere that the issue of free speech isn't getting the play it deserves. Gillmor says it all:Apple Computer's disgusting [Read More]

» Durst apologizes to Gawker for $80! million! dollar! lawsuit! from Boing Boing
Fred Durst sends flowers to blog-conglomerate Gawker, apologizes for including them in lawsuit over leaked sex phonecam video. Link to story. Now, if only Apple would follow suit... Link to Dan Gillmor's editorial on why Apple's legal action against b... [Read More]

» On Protecting Journalism and Democracy from Copyfight
One of the gathering storms over Internet speech has broken. On Friday a Santa Clara County Court judge ruled [PDF] that in Apple v. Does, Apple Computer's trade secret claims trump both California's reporter's shield laws and the reporter's... [Read More]

» Regulating bloggers is curbing freedom of speech from Daniela's Blog
The Bipartisan Campaign Finance Reform Act of 2002, which regulates federal campaign financing, has huge impact on the future of political blogging and its role in the U.S electoral process. Political blogging does not necessarily affect the outcomes of a [Read More]

» A Prospectus from Usher Blogs
I said recently that I was putting together a prospectus on a university research project. I am going to submit the project, through my blog (mainly so I don’t have to manually cite each reference) to the University of Colorado’s [Read More]

» A Prospectus from Usher Blogs
I said recently that I was putting together a prospectus on a university research project. [Read More]

» A worm in the core from Fluid Imagination
Introduction Why is it that all the important questions come up in areas where the necessary answer is difficult to defend? It could be because Progress likes to have its fun with us, as if it was saying, [Read More]


The One True b!X

On the upside (although not quite as dramatic enough to provide balance, perhaps), there's the OPEN Government Act of 2005 -- HR 867 in the House, S 394 in the Senate -- which among other things would allow bloggers to apply for the fee rates and/or fee waivers that media can request when making FOIA requests.

Marcus Brandybuck

Don't be so dark, Dan. This kind of action needs to happen to achieve some of the very things you are passionate about. I do not blame Apple as a matter of course. I fully understand why they want to know who is shooting off their mouth to rumor sites. These individuals are in violation of confidentially covenants and Apple should rightly try to find out who the are. These are not whistle blowers or key sources for what we should be ready to separate out as 'legitimate' journalism. And that is where I am hopeful, that a high standard of practice is set in motion - including the blogsphere's adoption of core journalistic disciplines (e.g., fact checking, source legitimization, etc.). What a waste of the potential power of grassroots journalism if it is dumbed down to some unregulated right to put anything out there. For example, I suppose pornography is free speech, but what a waste of free speech when compared to what we can really do with it.

Keep the faith. It will end well.


It's an opportunity for you Dan. Form a "blog" version of the Associated Press. Blogs join and become affiliates of a large, "formal", news organization. The individual reporters (bloggers) have their own columns (their blogs) and the parent produces a news site pulling from all those blogs. The bloggers are formal stringers. I'm assuming that the API is considered a "news" organization and has all the protections of mainstream press. The best defense is offense.


I also fail to see what's wrong with Apple's suit. Calling Think Secret a blog is a bit of a stretch, for one thing - it's just a commercial website selling advertising space, period. And if they knowingly solicited Apple employees or other NDA-covered persons to break their NDA's, then that is against the law. Apple isn't even suing for damages from what I understand, they are just suing to get the names of their own employees who have broken their NDA's. That sounds like normal business to me - the NDA's don't mean anything if they can't be enforced (including discovery).
How'd you like it if a commercial operation like Think Secret posted your personal information, and you had no recourse to find out at least how they got it?


PXLated said what I was thinking right off. Nothing in the proposed legislation you quoted says that a qualifying organization must be for profit nor that writers be paid or formal employees. In other words should be easy enough to make the distinction meaningless.

Actually, that legislation accompanied by this type of organization providing cover would negate suits of the type filed by Apple as well as allow bloggers access in ways currently limited to "recognized" press.


Ditto to PXlated and Bill for the idea of forming a "BPI". May I suggest that for ours, there be a system of disclosures, so the writer's vested interests and ethics are clear to the reader? (And the "Jeff Gannon"-style bloggers could go and form their own, disclosure-free "WPI")

David Mohring

Is it time to form one or more publishing/production/broadcasting "entity" organizations to act as front for bloggers, podcasters and activists?

The organization could let bloggers sign up and using RSS/Atom aggregation, the organization could publish selected content in a newspaper like manner or broadcast stories in audio/vidio format. By setting aside a proportion of publish space for new contributers, it would allow bloggers to gain journalist credentials.

Selected content could be published by the organization in newspaper and broadcasts. The content could also be distributed in a online Peer to Peer manner ( bittorrent and peercast ). Existing "recognized" media outlets could assist by just including any content from the organization in their papers, broadcasts or even as a channel on cable/satellite.

The organizations could be formed as a co-op, distributing a portion profits from advertising and subcriptions back to the contributers. Even a token amount paid back to the bloggers would assist gaining credentials.


Big media is attacked by many bloggers because it is a big institution that acts the way large institutions do. But one of the things big institutions have is the power to shape public policy to their benefit. Libel protection was essentially an invention of big media lawyers, for instance.

It seems that we can't attack big institutional media for being big institutions and also demand they use that institutional power to protect those who are standing in the town square calling the big media hypocritical dinosaurs.

Just seems to violate human nature.


Dan, This seems like something worth discussing with your pals at Poynter, EFF and Creative Commons.

Bob Perdriau

Ask yourself what would have happened had Apple's product plans been leaked to the New York Times - say their technology editor David Poque. Would they have made the paper? Not likely.

For one thing there is little or no news value to the information and no compelling public interest associated with printing it. This is not something on the scale of - say - Watergate where the story must be told and sources protected.

The only thing that can come from leaking the private product plans of a public company is damage to the company and its shareholders and - yes - even its fans and customers. This is not a free speech issue. It is an issue where criminal activity and breech of contract was involved. The perpetrator should be punished.

If there is a free speech issue here it is that such a right comes with responibilities.

Don Thompson

I believe the Apple case, in itself, is noise. There was nothing involved in that case that really matters. The motivation of any individual involved couldn't be described as anything more than naive excitement. However, what's more worrying is the attempt to discriminate blogging from "professional" journalism. Read John Pilger's 'Tell Me No Lies': there is precious little real journalism in the mainstream press capable of really informing the public due to vested interests; the terrorism "bogeyman"; and political apathy. These issues confirm that personal blogging has real value. Free speech is paramount.


Interesting comments. I find it particularly fascinating how many of the comments seem to defend Apple.

This is a free speech issue of the greatest importance. Of course Apple has the right to track down the leak of their information, fire them, sue them, etc. But that's not what this is about.

The way they are doing it is by demanding that a journalist give up their source. If this were a reporter for the NY Times, there would be no question of the result. The Times would fight Apple, not reveal their source, and win in court. But because this is a blogger, the rules change?

The real question is, "What is a journalist?" Does a blogger qualify?

If a blogger has a following that relies on them for "news," whether that news is the latest bombing in Iraq, or the latest hardware release from Apple, I would think the blogger would fall under the category of "journalist." After all, the definition isn't exactly a narrow one.

A reporter who writes for the National Enquirer is a journalist. An anchor person for Entertainment Tonight is a journalist. Dan Rather is (was?) is journalist. Finally, if you attend a local school board meeting, go home and write about it on your blog, it seems to me you would be a journalist too. After all, "freedom" of the press would tend to imply that anyone is free to talk about an issue, an event, a product. And do it in a public way.

Freedom of the press is not free if it is only reserved for the 5 mega media companies that run over 90% of media in the country. Real freedom of the press is only just being realized in the U.S. through citizen journalists utilizing technologies like blogging, but cases like this show how quickly the established will act to maintain the status quo.

But Apple? The company so proud of individualism, of creativity, of freedom itself, leading the charge? Shame on you. Use your massive resources to pinpoint the whistle blower on your own. Don't kill the messenger and for heaven's sake, support the Constitution.


What I think is especially interesting is that the government fails to see Blogs as what they are: small news operations. Blogs really have much in common with a small, one-man newspaper operation in a community. The difference with blogs is that they have a much wider audience.

Thomas Paine would have been a blogger.


Just a suggestion--the proposal may already have enough room for a defense. If a blogger were to use the text-to-speech capabilities of their operating system, save their posts as audio files and stream them, additionally, as an IP 'broadcast', they'd get the protection, no?
"A) an entity that disseminates information by[...]electronic, or other means and that--
ii) operates a radio[...] or a channel or programming service for any such station, network, system, or carrier;[...]"


A note to steve:

Your point that Think Secret is "just a commercial website selling advertising space" misunderstands what a newspaper is: "Just a commercial periodical that sells advertising space." In both cases, the commercial operation is designed to sell advertising space and uses timely news and analysis to get people to read content so that advertisers can reach their audience. There is no difference between Think Secret on that basis.


"I regard this more are saber-rattling than a serious threat, at least for now. And it's also clear that Smith is trying to get Congress to punch a hole in the law to make it ineffective. I find myself agreeing increasingly with folks on the political right, including the Heritage Foundation's Mark Tapscott, who (among others) observes that the law is becoming an excuse for the outright regulation, and suppression, of speech."

Yes, well that happened with the DMCA. It would be nice if a search of their website for "DMCA" turned anything up. However, such a search turns up nothing. Googling heritage foundation dmca also turns up just about zilch. nada. nothing.

Please encourage Tapscott and others to think about that....

Anspar Jonte

E plab neesta.

We're living in a Star Trek episode.


Think Secret was being called a blog, I was pointing out that it's not at all a blog, nothing to do with a newspaper.

John Faughnan

I second David Mohring's comments. The same thoughts must have occurred to a zillion of us. From my own response:

"An obvious short term response is to incorporate the amateur journalists. Create a corporation and charge a small fee to join. Have the corporation publish a newsletter made up of a random selection of member postings. The newsletter is financed by the feeds of the members. All the members are now journalists."

See also


I feel sorry for the suckers who went to school and got the journalism degree when all they had to do was put up a weblog and start blabbing.

Oooo, I have a blog! I'm a journalist now!



How would you feel if Think Secret had published Steve Jobs's Social Security Number and Bank Account numbers? Or how about if they had published your numbers?

That's the part missing here, that I wish Dan would cover. Let's say blogs are journalists, fine. I don't have a quarrel with that. At what point does a journalist have responsibility over that which is published? Never? Is that really the position you want to take?

Dan Gillmor

David, if a newspaper published Steve Jobs' social security and bank account numbers he'd have a fabulous case for invasion of privacy. Anyone would. There's no comparison with this case, which is about newsworthy information. If you can't see the difference then we'll just have to agree to disagree.

Walter E. Wallis

Challenge the authority of courts to compel anyone to testify.

Burt Naznitsky

A thief is just a thief, regardless of the label "journalist." This is not an issue of free speech, but the theft of proprietary data belonging to Apple. "Industrial Sabatoge" also fits the bill.

The self appointed "Forth Estate" accomplishes enough damage as is, why extend its self apnnointed privileges to those who assume the mantle, simply because they are utilizing a relatively new media? There is no question in my mind, we need to see a formal (lawful) definition of journalism and journalists, along with enforceable ethical guidelines, but then every journalist would scream "unfair" to the latter.

While it suits you too to inclusively add the issues of political free speech, theft of intellectual posessions and free speech are hardly equals. I'm certain if these same bloggers had stolen your copyrighted writings, you would be singing a different tune.


The Press is probably the only private enterprise specifically mentioned in the Constitution for protection. It would seem important to define what qualifies.

Just as I have some knowledge on how to administer cough medicine, it would be ludicrous for me to successfully claim to be a medical doctor.

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