Дело Apple против Does: Защита источников журналистов и коммерческая тайна.

California Courts of Appeal case

Apple v. Does (O'Grady v. Superior Court) was a high profile legal proceeding in United States of America notable for bringing into question the breadth of the shield law protecting journalists from being forced to reveal their sources, and whether that law applied to online news journalists writing about corporate trade secrets. The case was also notable for the large collection of amici curiae who joined in the matter. The case began after several online news journals published articles concerning unreleased Apple products. Apple issued subpoenas seeking the identity of the source who leaked the information, information Apple considered a trade secret. The online news journals then sought judicial orders to protect their sources. The matter was heard by a trial judge who ruled in Apple's favor; that ruling was then appealed by the defendant online journalists. The appellate court held that trade secrets do not, by themselves, categorically transcend freedom of the press, that there is no relevant legal distinction between journalistic blogging online and traditional print journalism with regard to the shield law, and that Apple's attempt to subpoena the email service provider of one of the journals was a violation of the U. S. federal law known as the Stored Communications Act.

Apple Computer filed the case in December 2004 against unnamed individuals, "Does", in Santa Clara County, California, alleging the defendant Does leaked information about new Apple products to several online news sites, including AppleInsider and O'Grady's PowerPage. The published articles at issue concerned a FireWire audio interface for GarageBand software which Apple had code named Asteroid, or Q7. Seeking to determine the identities of the sites' information sources, Apple issued subpoenas to AppleInsiders and O'Grady's PowerPages publishers, the owner of Think Secret, dePlume Organization LLC, as well as Nfox. com, and the email service provider for O'Grady's PowerPage for email messages that would identify the confidential source. Apple maintained in its filings that the information published by the defendants qualified as trade secrets under California statutes including the Uniform Trade Secrets Act (USTA) and the California Penal Code. The defendants publicly informed Apple they would not comply, and filed demands for protective orders with the court, attempting to block Apple's subpoenas.

Apple also filed a trade secret lawsuit over a separate issue against Think Secrets owner on January 4, 2004. In the Does matter, Apple did not sue specific journalists, but sought information concerning who leaked information on Asteroid. In contrast, Apple's suit against Think Secret accused the dePlume organization of harming Apple's trade secret property interests by publishing stories about a "headless iMac" (the Mac Mini), and about an updated version of iWork. Apple's separate lawsuit against Think Secret, Apple Computer v. Deplume, sought damages directly from dePlume and Think Secret for alleged dissemination of trade secrets through published stories on the Mac mini and iWork, and alleged such publication to be in violation of California law, although Think Secret did no original reporting on Asteroid. On March 4, 2005, the dePlume Organization filed a responsive motion in the same court as the Does case, demanding dismissal of Apple's suit under the California Anti SLAPP Statute.

On March 11, 2005, the Santa Clara County Superior Court trial judge declined to grant the defendants a protective order prohibiting discovery of their email. The court based its decision on its determination that (1) Apple's property as received by defendants was stolen, (2) that defendants did not convince the court they were journalists who could make legitimate use of the shield privilege, and (3) even if defendants were journalists, Apple's property rights took precedence over journalists' rights to protect their sources. The court determined the claim of "privilege" was thus overstated because reporters and their sources do not have a license to violate criminal laws. The court wrote that defendants claimed they were journalists because they sought the protection of the privilege against revealing their sources of information, rather than finding they sought the protection of privilege because they were journalists. The court noted that Apple's legal argument passed the five part test articulated in the California case Mitchell v. Superior Court which weighed whether a subpoena should be permitted over journalists' privilege rights under the First Amendment. The court reasoned that because there was no pending motion for injunctive relief against anyone, the issue of prior restraint was not before the Court, and cited as helpful the California Supreme Court's analysis in DVD Copy Control Ass'n, Inc. v. Bunner, which observed "[T]he First Amendment does not prohibit courts from incidentally enjoining speech in order to protect a legitimate property right."

On June 2, 2005, the California Court of Appeals for the 6th District issued an Order to Show Cause, directing Apple to show the Court "why a peremptory writ should not issue as requested in the petition" filed by the online journalists, and held a hearing with oral argument on April 20, 2006.

Because the matter involved popular websites and freedom of the press issues as well as a high profile technology company, it was highly publicized. Critics accused Apple of using the lawsuit not only to protect its trade secrets, but to frighten its employees in order to prevent future leaking. Critics of the trial court's ruling expressed concern the ruling reduced U. S. journalists' protections under the First Amendment to the United States Constitution and would have a chilling effect on what can be published. Before the decision was rendered, The Register noted "If successful, the free press would be restricted to regurgitating Apple press releases and spoonfed non disclosure agreements." Many bloggers criticized Apple's suit; some of their followers thought Apple might face a blogger initiated boycott. The Personal Technology editor of the San Jose Mercury News wrote an open letter to Steve Jobs warning that "The lawsuits pose an imminent threat to Apple's most precious asset: the company's reputation as a hip underdog, a cool alternative to bigger and blander competitors such as Microsoft, Dell and Hewlett Packard."