• Newsletter Issue #276

    March 14th, 2005

    THIS WEEK’S MAC NIGHT OWL LIVE UPDATE

    We had a great radio version of talking heads on our March 10th episode. On the first hour, Macworld’s 911 columnist, Christopher Breen, talked about both music and the Mac mini. He also revealed one of the most vexing problems he had to solve in his column in recent months, about capturing protected iTunes Music Store files in iMovie. On our second hour, his boss, Jason Snell, Editorial Director of Mac Publishing, brought us up on the state of the Mac, his views about Apple’s lawsuits against Mac rumor sites and other salient issues.

    On this week’s show, we’ll be joined by ace Mac troubleshooter Ted Landau and we’ll enter “The David Biedny Zone.” And when David drops by, the results are bound to be unpredictable.

    In case you haven’t heard, contests are back, and we’ve been running them pretty regularly in recent weeks. But stay tuned. The best is yet to come. On a future show, we’ll be giving away an iPod shuffle.

    If you haven’t heard the show, be sure to visit The Tech Night Owl LIVE Web site to listen to our archives. Enjoy.

    APPLE VERSUS MAC RUMOR SITES: DON’T BLAME THE JUDGE, BLAME THE LAW!

    I thought I wouldn’t have to write much more about this subject right now, but there’s no escaping the fact that the world of Mac rumors may never be the same in the wake of a judge’s ruling on Friday. As some of you have already heard, Santa Clara County Superior Court Judge James Kleinberg ruled that Apple had the right to subpoena the email provider for PowerPage, a Mac rumor site, to discover who may have leaked information about an upcoming Apple product.

    Despite what you may have heard, that is the sole extent of this particular ruling. As the judge states in a well-written 13-page decision, “The Court makes no finding as to the ultimate merits of Apple’s claims, or any defenses to those claims. Those issues remain for another day.”

    However, the handwriting is clearly on the wall, and free speech advocates are clearly up in arms over this development. An appeal is expected, and it may take months or years before the issue is resolved.

    If you haven’t had the chance, I suggest you download a copy of the ruling, made available courtesy of The Mac Observer. Once you’ve had a chance to go through it, I think you will come away with a very different impression of the issue, that Apple may not be the bully after all.

    The core of this particular decision is not whether the publishers of those Mac rumor sites are real journalists. You see, Judge Kleinberg is a smart fellow, and he is very aware of the world around him, something that can’t be said about some of his colleagues around the country. He also crafted his decision in a fashion that is largely free of legal jargon, making it easy for almost anyone to understand. As he writes, “Defining what is a ‘journalist’ has become more complicated as the variety of media has expanded.” And here’s the kicker: “But even if the movants are journalists, this is not the equivalent of a free pass.”

    Yes, there is a law in California that is designed to shield journalists from revealing their confidential sources. But this privilege has to be weighed against another law, that involving trade secrets. And make no mistake about it. At least some of the information published by those rumor sites, detailing a breakout box or interface module for GarageBand, code-named Asteroid, came direct from confidential Apple documents.

    For example, Jason O’Grady’s PowerPage published an exact copy of an illustration of the proposed product that came from a slide presentation file bearing the label “Apple Need-to-Know Confidential.” Judge Kleinberg also writes that “technical specifications were copied verbatim from the confidential slide and posted on the online site.”

    Understand that those who had the right to see those slides had to sign confidentiality agreements with Apple. Those agreements have to count for something, and certainly anyone who violates that agreement must face the consequences. If that person works for Apple, you can bet that employment is going to come to an abrupt end.

    But why go after these Web sites? Isn’t there something Apple could have done to find out the identity of the guilty party or parties without resorting to litigation? Apparently not. Judge Kleinberg concludes that “the Court is convinced, upon reviewing Apple’s public and in camera materials that a thorough investigation has been done and all alternative means have been exhausted.”

    He also concludes that California’s shield law doesn’t give anyone the right to “violate valid criminal laws.”

    Judge Kleinberg is also quite aware that there are instances where revealing trade secrets may indeed be appropriate. But “unlike the whistleblower who discloses a health, safety, or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by public officials, the movants are doing nothing more than feeding the public’s insatiable desire for information.”

    So when would it be appropriate? Well, what if Apple was a drug company rather than a computer company? Say an employee gives a journalist a copy of a document revealing that an over-the-counter drug sold by that company might cause an usually high number of people to develop heart conditions. It would certainly be in the public interest to publish that information, and that journalist would probably win an award for writing that article.

    But, as Judge Kleinberg writes, “An interested public is not the same as the public interest.” In other words, the fact that we’re all curious about upcoming products from Apple doesn’t give journalists the right to break the law.

    Unfortunately, the story doesn’t end here. It’s just the beginning of what promises to be a lengthy process of legal skirmishing on both sides. For now, Judge Kleinberg doesn’t feel he is somehow abridging the right of free speech: “Let there be no doubt: nothing in this order is meant to preclude the exchange of opinions and ideas, speculation about the future, or analyses of known facts. The rumor and opinion mills may continue to run at full speed. What underlies this decision is the publishing of information that at this early stage of the litigation fits squarely within the definition of a trade secret.”

    Now you may want to regard Judge Kleinberg as the enemy. But consider this: What if one of those Mac rumor sites published top secret information detailing a major upgrade to the iPod months before the product came out? That story wouldn’t just reach the Mac faithful, but the competition from Creative, Dell, Gateway and other companies. It might even show them how to build knockoff products that could, in the end, steal sales from Apple. In addition, if you knew about this product months in advance, wouldn’t you postpone your purchase of an iPod until it comes out? Maybe, maybe not, but that development could also hurt Apple’s bottom line.

    Yes, we all want to know about the latest scuttlebutt at Apple Computer. Reading gossip is fun, but what if that information hurts Apple’s ability to compete in a very contentious market? Is that what you really want? Think about it.

    THE TECH NIGHT OWL: THE NEVER-ENDING TV SEASON

    At one time, you could pretty well predict when the TV season began and ended. The new shows would first be presented in September, or perhaps in August if the network wanted to get some extra exposure a little early to build an audience. In January, new shows would appear to replace the ones that failed to deliver decent ratings. In the summer, it was time for repeats, so you could catch the shows you missed the first time around.

    But the world of cable and network TV has changed over the years. First, the summer was used to premiere new shows, sometimes for a test run to see if they’d catch a breeze. Cable networks would deliver new, original programming year round. And now even the broadcast networks have jumped into the frey. In fact, a few new entrants began this month. Oh, the confusion!

    Of course, when you have literally hundreds of stations to choose from, all bets are off.

    Now you can expect that most of the new shows will fail. Some deserve to fail, others just aren’t allowed enough time to build a fan base. There’s too much competition for ratings, and few shows are given an opportunity to shine if they don’t take off right away. What does this mean? Well, consider that “Law & Order” was something less than an overnight success when it premiered. If NBC didn’t allow it to develop over a year or two to reach its potential, do you think the network would be regarded as the “Law & Order” network today?

    Of course, if you’re sick and tired of “Law & Order,” and its various spin-offs, perhaps it doesn’t matter.

    To be frank, I find them fun, even if they are usually short on character development. But my favorite programs these days tend to be, well, a little quirky. Consider ABC’s “Boston Legal,” from David E. Kelley, which is the offbeat successor to “The Practice.” Here we have James Spader, William Shatner and Candice Bergen playing simply outrageous characters that never fail to keep your attention. The show is, at various times, serious, and at other times borders on the slapstick. And it often happens in the same episode, where suddenly you’ll find yourself laughing out loud at some of the crazy antics.

    Another show that is, well, a little different, is “Crossing Jordan,” which took a while for me to “get.” On the surface, it may have a passing resemblance to the various CSI programs. But this one concentrates as much on the crazy lives of its characters as on the crime or crimes of the week. Watch it and see if you don’t get sucked in. Unfortunately, it airs opposite “Boston Legal” so start your video recorders if you must see both.

    Of course, not all the good shows succeed. Although I wasn’t always enamored with “Star Trek: Enterprise,” the writing and production has improved considerably this year, but it’s going to be the last. For the first time in years, there won’t be a new Star Trek series on the air. All right, maybe it’s time to give it a rest, but I wouldn’t mind if it hung around for another year or two, and the fans who are fighting to keep the show on the air agree.

    By the way, if you like science fiction, you ought to check out the original programming at SciFi Channel. Yes, there’s a lot of junk, but that’s true of any TV network. But if you take the time to sample the offerings, you’ll find a few gems that are definitely worth a second look. If you are still a cable or satellite TV holdout, and rely on an old fashioned antenna, the SciFI Channel may be a good reason to sign up. And while you’re at it, catch the reruns of “Monk” on the USA Network.

    THE FINAL WORD

    The Mac Night Owl Newsletter is a weekly information service of Making The Impossible, Inc.

    Publisher/Editor: Gene Steinberg
    Managing Editor: Grayson Steinberg
    Marketing and Public Relations: Barbara Kaplan
    Worldwide Licensing and Marketing: Sharon Jarvis



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