Apple Loses In Latest Round with Does

The Court of Appeal in California (Sixth Appellate District) has ruled in favor of Jason O’Grady in his dispute with Apple Computer. It’s a pretty resounding opinion (linked here (PDF)), covering a lot of ground, including trade secret, the Stored Communications Act, and various other issues related to whether a corporation can stop a publisher for disclosing information related to an intended product launch.

The Court held: “Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority 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. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.”

An interesting passage, about the public interest in this case: “Apple first contends that there is and can be no public interest in the disclosures here because ‘the public has no right to know a company’s trade secrets.’ Surely this statement cannot stand as a categorical proposition. As recent history illustrates, business entities may adopt secret practices that threaten not only their own survival and the investments of their shareholders but the welfare of a whole industry, sector, or community. Labeling such matters ‘confidential’ and ‘proprietary’ cannot drain them of compelling public interest. Timely disclosure might avert the infliction of unmeasured harm on many thousands of individuals, following in the noblest traditions, and serving the highest functions, of a free and vigilant press. It therefore cannot be declared that publication of ‘trade secrets’ is ipso facto outside the sphere of matters appropriately deemed of ‘great public importance.'”

The NYT has more. As do Dave and Denise and Dan.

A Neighborhood Watch for the Kenyan Parliament

One of Berkman’s all-time great graduates, Ory Okolloh, has launched Mzalendo, which is watching over the Kenyan parliament. Subscribe to their RSS feed; bound to tell important stories, and to be an important story itself.

They are “a volunteer run project whose mission is to ‘keep an eye on the Kenyan Parliament.’  The project was started by two young like-minded Kenyans who were frustrated by the fact that it is difficult to hold Kenyan Members of Parliament (MPs) accountable for their performance largely because information about their work in Parliament is not easily accessible. In our opinion Parliament should be one of the most open institutions in government, yet beyond the coverage from local newspapers it is virtually impossible to keep track of what Kenyan Parliamentarians are doing. Of course one can peruse copies of the Hansard, but one has to go through an arduous process to get access to Hansard copies from the Government Printer’s Office and most people do not have the time to filter through the dense information that is contained in the Hansard hard copies.”

Happy coffee memories

John Bracken (Media SITREP), off the grid for 2 weeks, has used his absence to encourage a guest blogger, Yaucono, who writes of happy coffee memories: “Yaucono kept me awake, aware, soothed, and rooted in my culture and values in the midst of the most unsettling experience of my young life – not just the transition to college, but the transition to what was then an extremely alien culture. Hopefully, a Yaucono blog will remind me to approach topics with serenity instead of shock (good luck!).”

Bloggers as Celebrities: Too Cool for School?

The organizers of a conference I’m just leaving mentioned to me a curious fact: they invited 6 prominent bloggers — not to be named here (and I am certainly not including myself in this category) — to attend the event, called The Leaders Project. Not a single one responded, not even to RSVP “no.”

I was astonished. The group had fewer than 40 attendees, each of whom apparently had responded to the invitation: famous columnists, editors of major publications from around the world, generals and admirals, news anchors, presidents of major news networks, executive producers of shows everyone watches, members of Congress, leading activists from around the world, and even a few lowly academics. It was at an amazing venue, hosted by a former cabinet secretary and US Senator, and an unexpectedly rich, varied conversation. The topic was on the changing global media landscape, a topic that ordinarily would appeal, I’d think, to the serious blogger.

Why would bloggers be the one category not even to *reply* to the invitation? It got me to thinking that perhaps these bloggers are so sought after for conferences of this sort at the moment that they are overwhelmed with travel and the gab-fest circuit. Possible. But unfortunate if that’s so. This moment strikes as just the right time to be talking up the citizen-generated media movement, helping opinion leaders to understand and working through the issues and problems it raises or unearths. The blogging world has the attention of decision-makers everywhere. Now’s not the time to be too big for one’s britches — it’s the time to seize the moment. I suggested that maybe there are others to whom such an invitation should be extended next time. Maybe someone will set up a little speakers’ bureau for bloggers.

* * *

I’m at the Charlotte-Douglas airport, en route to Oxford Internet Institute for a research meeting with others from the OpenNet Initiative. Charlotte-Douglas has won my heart (as far as airports can win a heart) with free wifi in the main concourse. Very nice.

How Digital Natives Experience News

The process of experiencing news of those Born Digital – the Digital Natives — is famously different from the generations they succeed. DNs don’t read the New York Times or their local paper cover-to-cover over coffee in the morning, nor return home to hear the news read by Walter Cronkhite or Dan Rather (then discuss it around the dinner table or around the water cooler or at the pub or over bridge or at the Elk’s Lodge).

What is the process of news and information gathering for the DN? Here’s a
hypothesis. It’s a three-step process: Grazing, Deep(er) Dive(s), and the Feedback Loop.

It works, in the paradigmatic sense, like this:

1) Grazing: The citizen gets introduced to new facts through a process of grazing. The source of the facts might be Jon Stewart; it might be an RSS reader with aggregated news sources; it might by a My Yahoo! page or Google news or a PubSub alert; it might be a filtered set of news offerings served up to a Blackberry; it might be passively listening to radio in the car or a news channel at the gym from the seat of a recumbent bike; it might be from peers or blogs (of the Scripting News, Instapundit variety — at once prominent and generous with links) or Drudge; or any number of other introducers of facts, including offline. The net effect is that the citizen has the bare fact, or the headline, and perhaps a bit more (on the order of a paragraph), but no real context. The fact may not be verified and may prove to be false or misleading. In terms of the competition to provide this service, speed and relevance are the sole factors.

2) Deep Dive: The citizen makes her decision that she wants to go beyond the headline, to learn more about a topic beyond the basic fact she’s been exposed to. This is where the citizen goes to dig for context for the fact that’s been introduced. The citizen might choose the “channel” for this information because of celebrity (she likes a certain news anchor’s hair); politics (she likes a certain slant on the news); brand (a given source has a brand that appeals to her); or other reasons. The deep dive helps to make sense of the news, to put it into a frame, to offer an analysis of it, to introduce relevant other voices. This is where trust, branding, credibility come in. This is where news organizations, especially powerful and wealthy institutions — able to afford bureaus and the like — can add the most value. Some blogs fill this role, too — Global Voices might be an example. (Query: is there any reason why you wouldn’t want 1000, or 1,000,000, or n, “channels” at this level, so long as we’re able to discern and choose? See the Daily Me debate and the like for counter-arguments.) The key factor is not speed here, though timeliness is important; the key factors are accuracy, trustworthiness, insight/analysis, and relationship.

3) Feedback Loop: This stage is not for everyone, and is the hardest for traditionalists to grapple with, but an increasing number of citizens want to take another step and to engage more meaningfully with the fact and the context. It might mean blogging something yourself on an obscure blog (like this one!), creating your own podcast or vlog, or commenting on someone else’s blog or a wiki or bulletin board. Or send an e-mail to a listserv or to a network news program. The idea is to talk back — to act as an empowered citizen, able to have an impact on the way the story is told. This feedback loop may be taken seriously, or it may not, by others in the citizen generated media movement, by mainstream media, by decision-makers. It’s in theory good for participatory and semiotic democracy. The role of media in the feedback loop might be to provide an easy means to do it, or to serve as an aggregator by topic of multiple viewpoints from the broader community (loop back to the “deep-dive” step). The feedback loop might also involve taking local news and making it of broader relevance, to a non-local audience. The key factor is the ability to participate with the hopes of being heard, able to affect the outcome of the debate in some fashion, even if only for a few people.

Consider the feedback loop open.

Re-Reading Negroponte, Being Digital (1995)

In preparing for the final lecture of a two-day seminar that Urs Gasser and I are teaching here at the University of St. Gallen, I was going back through one of the books that got me interested in Internet law in the first place — Nicholas Negroponte’s seminal book in atom form, Being Digital (1995).

A passage that spoke to me, on p. 20: “One way to look at the future of being digital is to ask if the quality of one medium can be transposed to another. Can the television experience be more like the newspaper experience? Many people think of newspapers as having more depth than television news. Must that be so? Similarly, television is considered a richer sensory experience than what newspapers can deliver. Must that be so?

“The answer lies in creating computers to filter, sort, prioritize, and manage multimedia on our behalf — computers that read newspapers and look at television for us, and act as editors when we ask them to do so. This kind of intelligence can live in two different places.

“It can live at the transmitter and behave as if you had your own staff writers — as if the The New York Times were publishing a single newspaper tailored to your interests. In this first example, a small subset of bits has been selected especially for you. The bits are filtered, prepared, and delivered to you, perhaps to be printed at home, perhaps to be viewed more interactively with an electronic display.

“The second example is one in which your news-editing system lives in the receiver and The New York Times broadcasts a very large number of bits, perhaps five thousand different stories, from which your appliance grabs a select few, depending on your interests, habits, or plans for that day. In this instance, the intelligence is in the receiver, and the dumb transmitter is indiscriminately sending all the bits to everybody.

“The future will not be one or the other, but both.”

He picks up the story of the newspaper industry again, on p. 56, noting how everything is created in bit form, then pressed onto atoms. Imagine if the head of a newspaper read Being Digital in 1995 and really listened? Maybe that’s what happened with Martin N. and co. at NYT Digital and a few others. But most clearly missed this lesson back then; I doubt many are missing it now.

Also, on copyrights, he nailed the vision of the trainwreck we’ve experienced in the late 1990s and early oughts (p. 58 ff.).

I think he gets a handful of things wrong, of course, but only at the margins — mainly, the reliance on machines, rather than humans, who I still think will play a key role, as the “web 2.0” people will tell you — but this book was astonishingly prescient. I’m not sure that he predicted quite the information quality problem that Urs is talking about right now, but then again, most people don’t focus on that even now.

Whether or not you first read it in 1995, it’s fun to read Being Digital today. (Then again, I learned last night from Prof. Dr. Herbert Burkert that you can only read 3,172 books in your life.  I don’t know how re-reading fits into that calculation.)  In any event, wildy impressive as a futuristic tale.

Maturation of blogging

This morning, we are hosting an eminent group of academics here at Harvard Law School for a symposium on blogging and legal scholarship. Prof. Paul Caron is leading off right now. You can tune in to the webcast, if you are not local to Cambridge. (If you needed any further incentive to watch, Prof. Michael Froomkin promises to announce a new project just after 11:00 a.m.)

Meanwhile, a Maine blogger has been sued for $1 million for blog posts critical of the advertising campaign of a state agency in Maine. The Boston Globe reports: “Warren Kremer Paino Advertising LLC, an agency hired by the Maine Department of Tourism, filed suit in US District Court in Maine last week, alleging the blogger, Lance Dutson of Searsmont, Maine, outside Camden, violated the agency’s copyright and defamed the agency in blog entries self-published at” My view is that a lawsuit of this sort should have to clear a very high bar before a court awards damages to the design firm, especially where the core discussion is a matter of political speech in which a citizen is commenting on the activities of a state agency of his home state.

And, today, we are releasing a brand-new blogs server at Harvard Law, running a new instantiation of WordPress. It reminds me of the heady days when Dave Winer, back in Christmas Break 2002, first joined us at the Berkman Center and pulled us all into this business as the pied piper of citizen-generated media here at Harvard. Core to Dave’s blogging initiative here was to put up the first-ever community blogs server at a university.

I am reminded of an article that the Harvard Gazette published back in 2003, in the early days of the initiative. I think it’s safe, now, to say that this blogging initiative has been a big, maybe even unqualified, success — with several hundred members of the Harvard community blogging, whether on our server or otherwise; a vibrant group whose (completely open set of) members still meet every Thursday night at the Berkman Center; the first series of podcasts and extensions of that tradition; and so forth. Come a long way, since then, with lots of great people picking up the legacy and extending it, like all those working on Global Voices. Thanks, Dave.