Recently in Apple Category

I wouldn't have predicted it, but Apple Computer has released a public beta trial of a dual-boot system tentatively named Boot Camp that can launch Windows XP or Mac OS X on the new Intel-based Macintoshes. It includes Mac-specific drivers for Windows. Of course, you still have to provide your own copy of Windows XP SP2, because Apple isn't going to sell you that.

This means Apple is listening to its customers, especially those "power users" who until now were experimenting with ways to make Windows run on Intel Macs themselves. I don't know if we'll ever see Apple providing technical support for those who want to run Windows on Apple computers, but at least it's interested in providing the capability.

[Via several sources more or less simultaneously, including Blurbomat and Pages in the Ether.]

Tim Bray ponders switching away from Apple equipment. His major gripe is with Apple's secrecy policies, but he also weighs the technical pros and cons of Unswitching that he would be likely to encounter.

For now, I'm still planning to buy an Apple Powerbook for my next notebook computer, but Apple's secrecy and legal policies have caused some serious cognitive dissonance for me.

A VC (that's the name of the blog) observes, "Apple survived the WinTel dominance in the PC business by becoming a "we" company. … But in the past couple months, Apple has made some very "they" company decisions." He outlines a few.

A commenter on that post responds,

As a long time Apple developer back in the early 80's, the common comment has always been, "Love the computers, hate the company" when it came to Apple. You might think that Apple switched from a "we" company to a "they" company, but those close to the company have always thought of it as a "they" company. … Apple's continued pursuit of the bloggers is a direct reflection of how Apple (Jobs) ISN'T in tune with their user base out in the real world. Apple has never understood the passion of it's users, though some employees over time have. (ie. Guy Kawasaki)

There's more. Have a look.

Meanwhile, Robert Scoble loathes the notion that Microsoft is a "they" company. His perception from inside the company is that they're not.

I've long felt that Microsoft was focused on itself and took an exploitative attitude toward its customers. But recently, I've encountered a remarkable counteragent to that perception in the form of the many bloggers at Microsoft. They help humanize this consumer's perception of an apparently monolithic corporation that wields great power over a great many consumers. I'm still skeptical of much of Microsoft's management and some of its tactics (I mean, come on — patenting storing word processor files in XML?), but it still helps to hear from developers about their genuine enthusiasm for putting tools in the hands of other developers and consumers.

The Mercury News is running an editorial about (Cal.) Superior Court Judge James Kleinberg's ruling in Apple v. Does just over a week ago. [Via Donna Wentworth.]

Let's be careful with the extent to which we call this case a "precedent." It has no authoritative precedential force within the law, because it comes from a trial court. But there is a possibility that an important appellate court could agree with the reasoning, establishing more authoritative precedent. Or, other trial courts could simply find the reasoning persuasive in the absence of other more binding authority.

When should website operators who post information they receive about business activities be able to claim either:

• A privilege not to disclose the identity of their sources?
• An immunity from civil suit or criminal penalties for disclosing information?

I'll call the first of these a "journalistic privilege" and the second "journalistic immunity." In this post I'm just going to talk about privilege, but it helps to remember that we are talking about at least two kinds of protections. Still a different kind of privilege protects publishers from prior restraint in most cases.

Ernest Miller (The Importance Of....) has an idea for an answer to those questions above. It's pretty simple. But it may be too simple, and efforts to refine it tend to lead to some of the more complicated inquiries that I think he'd prefer to leave out of the test.

Mr. Miller argues in this post for a standard that would make it very easy to obtain legal protection for disseminating information one receives from business or government insiders. On Mr. Miller's view, we should not focus on the speaker, the content of the speech, or the medium of communication. See his post for a quite articulate summary of that part of the argument. (Mr. Miller cites Linda Berger, Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication, 39 Hous. L.R. 1371 (2003)). Mr. Miller and Prof. Berger argue for approaches where what counts is whether the speaker is "engaged in the process of journalism."

Miller and Berger argue for different standards. Prof. Berger provides a pragmatic (but still a bit fuzzy) outline of what sorts of behaviors and attributes characterize the "journalistic processes" that law should protect. Mr. Miller argues that Prof. Berger's standard should really be stripped down to just two or three elements. I'm going to focus on his argument below and leave Prof. Berger's aside, mainly because I haven't had time yet to give her article the closer reading it deserves.

Prof. Berger's article also provides a very handy historical summary of journalistic privilege (or its absence) under federal and state law. Note that she and Mr. Miller are arguing for reformulations of privilege law — that's really another way of saying "new law". I'm not "dissing" either's argument, which may be sound and valid from the perspectives of First Amendment values — specifically, the free flow of information — and jurisprudential efficacy. I'm just saying their arguments are not what the courts have been doing so far.

So how should we tell who is "engaged in the process of journalism?" Mr. Miller writes, "The 'press' and journalism boils down to two things: gather information and publish it publicly." So, he asks, "Isn't the only process we need to know about is that information was gathered and then it was publicly published (or there was intent to publicly publish)?"

If I'm reading Mr. Miller's post right, the elements of the journalistic privilege would go like this:

If

• Insider communicates information to Outsider; and
• Outsider
  • publicly publishes the information or
  • intends to publish it publicly;

• Outsider cannot be compelled by law to identify Insider.

It looks simple, but there are still some tricky parts.

For example, there's still some question what it would mean to "publish" information. Assume that any widely disseminated medium counts as publishing — including publicly accessible websites. That does away with the blogger/journalist issue. But the bigger problem word in this test is "publicly." Is it "publicly publishing" if Outsider only shares the secret information with his or her family? What if Outsider puts together a "publication" that consists of a for-profit newsletter distributed only to a trade group? Or only to certain competitors of Insider's employer? When does the further dissemination of the information become a "public" publishing?

Mr. Miller's test also has a subjective element, in that Outsider's subjective intent to publish would qualify Outsider for the privilege. Suppose we have an Outsider who has engaged in some of the more questionable practices described two paragraphs above. When Outsider gets a subpoena (because yet someone else leaked Outsider's newsletters or a copy of Outsider's private website), is it enough for Outsider to say, "I planned to release that information to the public at large next week"?

The hunt for a description of "public" smells to me like a search for the kinds of journalistic processes that we consider to be more for the benefit of the public at large than for select groups. If we go down that path, it dredges up the questions of disclosure, journalist track-records, and other scrutiny of Outsider that Mr. Miller's proposed test aimed to avoid in the first place.

Even if these questions show up difficulties in Mr. Miller's proposed test, he could quite aptly point out that it's often better to have one hard-to-apply word or element in a law than to have two, five, or ten, especially when that law is designed to protect the flow of information and public discourse. Maybe that's true, or maybe this topic is trickier than it looks so that we may have to put up with more complexity. Based on what I've read so far, I suspect Prof. Berger's approach admits of more of that complexity. On the other hand, her approach may be more difficult to apply, and she may overly favor "established media" outlets.

All that, and we haven't even reached the core policy issues, though I'm trying to illustrate some of them with the hypothetical questions I've asked in the last few paragraphs. You can find more detailed discussions elsewhere (Prof. Berger's article might be a good place to start).

Notice that Insider still gets no special protection. That's the same as in current law. If Insider's employer can identify Insider through other means, Insider is still in trouble unless some kind of "whistleblowing" law applies. Regardless of how we treat the journalist, I don't think the rules that apply to Insider should change. Except in extreme circumstances, no business should be compelled to employ someone who leaks private business information.

If you're interested in the topic and you haven't read Mr. Miller's post already, have a look at it and think about it for a while. If you're really interested in the legal background, also look at Prof. Berger's article.

Peter Burrows, BusinessWeek's Computer department editor, has a column describing why Apple's choice to sue fan-driven websites is a bad business call that "could tarnish the Apple brand." ("Memo to Apple: Lay Off Your Fans")

There's a certain irony to this. Remember the Orwell-inspired ad that ran during the 1984 Super Bowl, that one that depicted Apple as the free-thinking company breaking the Big Brother dogma of the computer industry? Through conscious marketing efforts, Apple has long stood for innovation and creativity, and has been embraced creative sorts like artists and writers -- not people who usually care for big corporations pursuing lawsuits against 19-year-olds. That may vastly oversimplify the nuanced legal issues Apple's lawyers are trying to address, but it could well be the overriding impression that results.

A large QuickTime .mov file of the 1984 advertisement is available here. There are smaller copies floating out around the internet.

By now, everyone who reads law and technology related weblogs is aware that a California court has permitted Apple Computer, Inc. to issue subpoenas to weblog author-editors and ISPs. Apple aims to discover who leaked information about an Apple project called "Asteroid." The court order rejecting the webloggers' motion to quash the subpoenas is here [via EFF].

To comply with the subpoenas and order, the webloggers will have to disclose the sources underlying the articles they published. The webloggers are not currently defendants in the lawsuit — the defendants are the people from whom the webloggers received the information in the first place. Apple might, under the circumstances, be able to join the webloggers as defendants for disseminating trade secret information. But it currently seems that Apple's primary goal is to rout out its employees who leaked the information, firing them and maybe (or maybe not) maintaining its suit against them.

Here's a very non-exclusive list of what some people have had to say about this case in the legal and technical blogosphere since the court released its ruling:

• Denise Howell (Bag and Baggage): Links and information.
• SoCal Law Blog: Brief comment. (I would not normally endorse a weblog so drowned in advertisements that one can scarcely find the text. –tph)
• JMoore (JurisPundit): JMoore was hoping for some analysis on the role of blogger-as-journalist, an issue the judge sidestepped by holding that no journalistic privilege at all applied in the case.
• News release, Electronic Frontier Foundation. The EFF provided legal support to the webloggers.
• Donna Wentworth (Copyfight): Donna criticizes the judge's determination that no First Amendment journalistic privilege applied in the case, and links to—
• An exchange [one] [two] between Susan Crawford and Ernest Miller on the proper scope of First Amendment journalistic privilege.
• Dan Gillmor worries that if this ruling is upheld on appeal (assuming there's an appeal), business reporting will become too dangerous for reporters.
• The Mercury News's Mike Langberg asks Apple to reconsider its legal approach toward enthusiasts because it communicates arrogance and attacks people who love Apple and its products.

It seems to me that the main thing that really bothers Apple enthusiasts about these subpoenas (as well as some other claims Apple has been pursuing against enthusiasts who spread leaked information) is that they convey the impression that Apple wants to punish webloggers who are enthusiastic about its products. This impression relates to Langberg's argument in his editorial. As I've followed the news and commentary, I've been wondering about Apple's business decision to proceed with these lawsuits more than the nuances of the legal doctrines that apply (though the latter are important). I have to admit that my first impression of Apple's lawsuits was that they seemed eager to stifle the very kinds of enthusiasts who provide valuable word-of-mouth marketing for their products — the kind of marketing that you just can't buy.

Apple hasn't even tried to justify its strategy to the public, and if it tried to do so using one of those "we just have to protect our intellectual property in all cases" arguments, I'd be sorely disappointed. Still, I've tried to imagine why Apple might want to pursue these cases knowing that there is some risk that it might alienate some enthusiasts. What might the people in charge of this policy at Apple be thinking? My first impression is that Apple likes word-of-mouth and media hype for its products, but it really wants to be able to control that hype itself. Is that just the symptom of obsession for control, or can one justify the desire for control?

In some circumstances, Apple might want to conceal new product plans because it wants the maximum lead time in the market before competitors could develop a competing product. But this case doesn't look to me like a situation involving intense competition in a particular market space. The secret information at issue in Apple v. Does relates to an improvement to theGarageBand music sequencing software in the iLife software suite.

Maybe there was a major concern about competitive advantage for Apple in this case — I don't pretend to know all about the market for music sequencing software. But it looks to me like Apple is trying to enforce a blanket policy regardless of whether this particular leak is comparatively a "big deal."

Concerns about employee discipline provide one potential justification for pursuing "leakers" even if the leak didn't cause severe damage. Assuming that Apple has a blanket policy of secrecy — and it has had just such a policy since the 1970s — it probably wants to be very sure that it employs only people who can honor that policy, and it probably wants to fire those who don't honor it. It's probably wrong to label such firings "retaliation," since Apple has reasons other than spite for discharging people who break their agreements. For example, distributing certain information about forthcoming Apple products may in fact cause Apple harm if it tips off competitors. Also, leaking information about the company's projects may hurt morale, given that Apple has many employees who do act very cautiously to protect information about its development efforts. They probably don't want to feel that their own co-workers are disseminating the very information that they are trying to protect. I don't know how much of a problem that is because I don't know anyone who works at Apple.

I think Apple should have some right — probably a right with a lot of enforcement leverage — to demand confidentiality from its employees. I also think it should be able to use legal tools to do so. I'm just not sure where the line should be drawn as a policy matter. Maybe those tools should be limited, or maybe they should have a broad reach except in those cases that would classify as "whistleblowing."

I've seen a lot of discussion about whether the webloggers affected by subpoenas in Apple v. Does should be treated as journalists. Most people assumed the court's ruling would focus on that question. But the court concluded that regardless of webloggers' status, disclosures by Apple's employees about Apple's forthcoming products didn't implicate a journalistic First Amendment privilege at all.

That conclusion raises the question, When do communications to a journalist (however that word may be defined) about a company's business or research activities obtain a privilege such the journalist cannot be compelled to identify the source of the information? That question is probably more important than the journalist/weblogger question, and it's the core of a conversation that's started over the weekend (see, e.g., Crawford and Miller), and it's an important one.

I'm not sure where I stand on that issue, and if I have enough time this week I'll play around in this space with some possible arguments related to that question. I don't want a policy under which companies designate everything under the sun as "trade secrets" to prevent dissemination, but I also don't want a policy under which employees can feel free to share whatever company secrets they want as long as they're talking to a journalist.

In the meantime, I'll look forward to reading more arguments about the legal standards that apply and about Apple's policy in particular. I'll be especially curious to read any arguments people might test out in support of Apple's policy, since I didn't exactly work philosophical or rhetorical wonders in its favor earlier in this post. Before we can really evaluate the legal standards that apply, I think we need to try to understand why Apple might want to draw close the cloak of secrecy. If we don't give serious attention to that viewpoint, the perspective of the business that generates the information that it then seeks to protect, our discussion of the legal standards will be under-informed and imbalanced.

The Background

I last acquired a new notebook computer in 2000. That one was a replacement for a glitchy one I'd bought in 1999. They were both Intel-based machines that arrived from the store running Windows 98SE. I chose those computers because I had built my own Windows and Linux desktop computer, I wanted to be able to dual-boot Windows and Linux on the notebook, and I knew that the software I would want for law school either ran only on Windows or had Mac versions that lagged the capabilities of the Windows releases.

I stopped using my notebook computer during my third year of law school because it was too heavy to lug around. I had several pairs of jeans with a small hole where my computer bag brushed against my leg and wore through the denim. I also wanted to write my notes more selectively instead of transcribing classroom events.

In the meantime, I've continued to upgrade my workstation at home, but the notebook is sitting unloved because its piddly 64MB of RAM can't handle anything that's currently out there. Once I load Windows (or Linux and a desktop environment), running just one worthwhile application starts the hard drive a-grinding as the computer constantly relies on its swap space. And the battery is dead.

So as soon as I've re-established positive cash flow, I need a new notebook computer. But this time I plan to make a different choice. I plan to buy an Apple PowerBook.

Why?

Several reasons. I could probably analyze it out into seven to ten reasons. But instead, let me tell a story.

I like playing with different operating systems and interfaces. I've been a computer hobbyist since I was about seven years old. My experimentation has taken me from Apple ProDOS (on the //c) to MS-DOS to OS/2 to "old" MacOS to OpenVMS to Windows XP and Linux — and those are only some of the steps along the way. Since 1999, though, I've used Windows for all my "real work," because that's what law school and my firm required.

For years, my hobbyist background meant that user-interface quirks and technical glitches didn't bother me as much as they bother most people. I usually had enough time that I could treat a computer problem as an interesting puzzle to be solved rather than a brick wall across my path.

Law school, and law practice especially, have robbed me of that point of view. When I have free time, I don't want to spend it solving computer problems — unless, of course, I've chosen to spend hobbyist time on them. Several times over the course of the last two years, I've found myself hacking away at a computer problem instead of finishing my "real work" while under deadlines.

I have several friends who have used Windows, Linux, and OS X. They agree that OS X has given them the greatest amount of flexibility with the least amount of frustration. One of them said, "I didn't use Linux because I wanted a challenge or because I necessarily needed it for something; I used it because I wanted a computer that would do what I wanted it to, and I was willing to invest some effort in that. The Mac does what I want it to, and I don't have to put any effort into it. It just works."

Of course, I'll grant that a computer won't just work all the time, even in the Mac world. But it just works more of the time, and it works more intuitively. That translates to increased efficiency.

Interface design in the Apple world also plays a big role in my decision. Apple, and people who design software to run on Apple equipment, do really impressive things with interface design. I want to take advantage of that. I've spent too much time in the last year cursing programs for getting in my way.

Even better yet, the Mac will still let me experiment if I want to. Part of the guts of OS X is based on a BSD-flavored UNIX called Darwin. I'm already familiar with a few flavors of Unix, so once I figure out some of Darwin's unique quirks, I'll be in a good position to play around with it a bit.

There's still one area where software tends to be a little sparse on the Mac in a way that affects me. It remains true that a lot of specialized legal software runs on the PC only. My next firm will probably require me to use Windows XP. They'll probably keep time with Timeslips or TABS3, or maybe even Amicus Attorney. CaseSoft doesn't run on the Mac, and I haven't yet found any reports of whether it works under Virtual PC. So I'll have two computers at work. But that's worked well for an increasing number of people (Ernest Svenson is my model in this regard). I'll need to cough up four to five hundred dollars for Microsoft Office. But then I'll be set.

I'm heartened to see that Apple is again targeting the legal market, particularly small and mid-sized firms where the costs of transition are lowest and the necessary software is most robust. If I were to start out on my own, I'd probably do it like these guys. It's good to know that law practice management software is out there for the Mac.

I replaced my old Macintosh Performa with a PC in 1997 because I wanted to experiment, because I wanted to run Linux. At the time Apple looked like it was in a slump. Now I want to spend my time getting things done, making things happen. So I'm going to buy a Mac.

(Now that I've gone and said all these things, I guess I'm really going to have to go through with it.)