Dan Gillmor on Grassroots Journalism
Arrogance at Apple
CNet: Apple suit foreshadows coming products.

Apple on Tuesday sued the publisher of Mac enthusiast site Think Secret and other unnamed individuals, alleging that recent postings on the site contain Apple trade secrets, according to court documents seen by CNET News.com. The suit, filed Tuesday in the Superior Court of Santa Clara County, Calif., aims to identify who is leaking the information and to get an injunction preventing further release of trade secrets. However, in filing the suit, Apple identifies specific articles that contain trade secrets, indicating that at least parts of those reports are on the mark.

This is disturbing on many grounds. Apple claims (see the end of the story) that it's not trying to suppress free speech. Bull. That's precisely what the company is doing here, well beyond keeping internal secrets.

This reeks of corporate misbehavior. I'm not a lawyer, but it seems to me that Apple's only legitimate legal beef is with its employees or contractors who are leaking the information to Think Secret and other rumor sites.

I'm fairly sure of this: If the party leaking information to Think Secret had sent it, say, to the San Jose Mercury News or New York Times, and had those publications run the news, Apple wouldn't be suing them. Both have deep enough pockets to defend themselves.

This is my understanding too. Even if the source is "tainted" if a journalist receives the information unencumbered, they can print it. If this were not the case, there would be little recourse for whistle-blowers who usually are breaking some sort of contract at a local level for a higher good. Going after the news site is "pushing around the little guy" I think.

UPDATE: EFF is stepping in to help according to Boing Boing.

UPDATE with links from Donna Wentworth

Copyfight
EFF Is Not Representing Think Secret (Donna Wentworth)

The mistake is understandable. Here's our press release; EFF's clients are the publishers of AppleInsider and PowerPage. It's important to note that the facts in these cases are different.

Update: The New York Times has clearly written, informative coverage [reg. req.]; NewsFactor also has something solid.

Update #2: The legal documents are now up at the EFF site.

17 Comments

Apple has traditionally very very lip-tight on any upcoming products. Not even their closest developers or their marketing staff knows what new product or even when the next patch will come.

With that kind of tradition, it is not surprisingly Apple take its stance to make an example of those who dare to break news before Steves does.

And no, it is not about going after the little guys. It is going after the leakers (or those who entice leakers).

Think secret makes a habit of posting information only available to Apple Seedkey owners which in turn have a non-disclosure agreement with Apple. And the site is add driven, not an enthusiast site. So Apple showing their teeth on that is quite ok by me.

IMHO calling "Mr. dePlume" a blogger or a journalist is an insult to both of these groups...

What I don't understand is why does Apple want to kill the buzz? People do talk about the iPods and such as well, but new product releases interest people as well, even though some "might be true".


Many companies admire the buzz Apple has around it. I just don't get it, why try to control/suppress it with legal cases, not exactly your ideal tool for that.


Antti: There is an excellent article by Jon Gruber about that question.

It's the same as kottke being sued by sony over the Jeopardy thing and not Washington Post, despite that they published the same thing.

BTW. You have some problems with the typekey sign-in. When I come back to your site, the permissions for the cgi is wrong (mt-talk2me.cgi I think)

rgds. Jonas

Well, the legal situation is a little more complex than is sometimes portrayed. There is a thing called the Uniform Trade Secrets Law (http://mhallign.fp.execpc.com/ which has been ratified in the State of California and most other US states). My understand that this means that you can be held liable for breach of confidentiality even where you did not sign a confidentiality agreement yourself. The 'whistleblower defence' isn't really relevant in this instance, because there is no wrongdoing or obvious risk or disadvantage to the public or other parties that would justify revealing the secret.

I understand there is also a concept in US law called 'tortious interference' which is where you somehow lead a person to break an agreement (for example, a confidentiality agreement) with their employer or other person.

I seem to recall that 6-Apart did not confirm its acquisition of Live Journal until after the deal was done. And quite right too. Companies work hard on developing and executing business strategies as well as developing products and they are both legally and morally entitled to expect that this information should be kept as a Trade Secret if the information has been shared with others under an NDA. I absolutely guarrantee that 6-Apart and Live Journal have both business strategies and product ideas that they share with others only under an NDA and that the company would be upset if this information was divulged without their position. Why do I mention this? Because Joi's company is a lead investor in 6-Apart and he is working hard to develop a company that blazes trails in the Blogging economy. He will probably become a billionaire when 6-Apart goes public and this is good and it will be a testament to his understanding that some things have to be kept secret.

It's one thing to be "upset" it's another to shoot the messenger. I think the point here is that leaks are primarily an internal issue and trying to shut down a paper, a web site, an ISP or whatever, run by a third party is not the best solution.

Antoin, yes, there are a variety of laws, but most journalists that I've talked to tell me that as long as you receive the information without you yourself breaking any laws or contracts, you're generally immune. People can sue you, and the point here is that big media companies have the resources to win, whereas small guys are likely to give up.

Understood Joi. But on the wider issue. While you are publicly going on and on about sharing and openess, I would like to keep you focussed on the importance of truth and honesty.

I think truth and openess is about truth and honesty. I think you're trying to say that I believe in secrets in order to protect my interests. Yes. I do. If a journalist scoops a leak, I will try my best to protect my interests and not have that information be revealed. I have had this happen in the past, but my strategy is always to engage the journalist, not sue them.

Agreed. Thank you for the clarification.

Something comes to my mind: is it possible to develop products with the customers. I mean really together with the customer. The company i.e. is publishing the idea of a new gadget to the scene and is working with the people on developing it. The customers get the features what they really want and some people can be proud of being part of the development process. I think it's like open source projects, but doing hardware (or something else). And if some competitors think that they can "steal" the community outcome and actually produce i.e. the piece of hardware and sell it well below the price of the original company, hmm... I think it sounds good... ;-) some will buy the cheaper gadget, others will remain loyal to the original product manufacturer, because they contributed to the product and therefore kind of "immortalize" themselves in it. I am quite sure that Apple could go this way. But I think the main hurdle in such an effort is the management of the community process.

I think that the journalists are naive to think that the UTSA somehow doesn't apply to them.

(Not that I'm saying it's very sensible for Apple to try to apply its terms in this case - it's just a bit trivial -. However, if a competitor had entered the marketplace with a competing product at a lower price before Apple, resulting in loss of sales, then there would have been serious trouble.)

Antoin, your logic appears flawed !!

"if a competitor had entered the marketplace with a competing product at a lower price before Apple" -

Then this, itself would warrant Apples Patent's and Proprietary information beinf infringed on by the term "similar" !!

I think that Apple has the priviledge of restricting information output. Their employees have an obligation to not reveal the game. There is a legitimate exception for crimes against whomever, environement, energy, etc.. That being said, Apple can hold employees to some standard of disclosure. And that being said, rumor sites can publish anything that comes up.

Ya know; there's a natural tension. We will live with it.

i just made a free speech speech to my dog complete with tears. WTF!

pd: no, there's no reason why another company couldn't come up with a similar product without infringing Apple's rights. (Apple didn't even invent the portable music player - they weren't even the first to commercialize.)

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I should probably keep out of this (but I won't). I'm very disappointed with the blogosphere's reaction to Apple suing the rumor sites like ThinkSecret. A good, typical reaction is the one from Joi Ito. Even Dan Gillmor gets it wrong, and being a (ret... Read More

As I said, a lot of has been already written, and you can find out any kind of comments out there. For example, Suw hails the mac mini as “the perfect introduction to the Mac OS at a decent price”.... And every time friends, co-worker...

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As I said, a lot of has been already written, and you can find out any kind of comments out there. For example, Suw hails the mac mini as “the perfect introduction to the Mac OS at a decent price”.... And every time friends, co-worker...

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