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.

I hope the EFF or some other organization will defend Think Secret. I don't know if there's counter-suit potential for interfering with freedom of the press. But I do know that if citizen-based journalism is to have a prayer of making headway, we need to deter, not just counter, moves like Apple's.

If a company wants to control its own employees' activities, including by firing or suing workers who reveal secrets, that's a company's right. When it seeks to put a gag on the people who merely receive the information, that's going way too far.

Comments

[Joshua Porter]

Here's an interesting take over at daringfireball. John Gruber suggests that Apple is leaning on ThinkSecret not to gag them, but only to retrieve the names of the the Apple employees who are leaking information. He hypothesizes that if that occurs, Apple will back off of the issue.

[GrubbStreet Hack]

If Apple wants to know who is leaking "trade secrets," then it should do an internal investigation, hire some detectives or something like that.

Such suits have a chilling effect on journalists. Even if you're employed by a big organization with deep pockets, such suits always have some censoring effect on the news. If not the journalist himself/herself, then the editors who will wonder if they can trust the reporter.

In this case, ThinkSecret is much more vulnerable, as you say. Apple, regardless of what it says, is being vindictive. They're angry and so are shooting the messenger instead of asking the really important question. Why would someone betray us like this? What are we doing wrong?

Never forget that citizens have something much more powerful than any pack of lawyers. We have the power to choose where to buy our products.

If we all boycott iTunes on January 12 -- just one day -- Apple will get the message. Back off!

[Alan Kellogg]

Steve Jobs has long been a control freak. He's been insisting on tight reins on information getting out, and has been making noise regarding Apple rumor sites for years. The fact he's going after a particular site is certain to give Mac addicts the impression the place may actually have valid information.

I hope Apple gets slapped down and learns a moiety of prudence from this.

[Todd Blanchard]

I have to back Apple on this. Intellectual property in the form of trade secrets was stolen from Apple by dishonest people who broke their employment agreement.

Think Secret is guilty of receiving and dealing in stolen property. This isn't free speech. Suppose an employee acquired the recipe for Coca Cola and the New York Times published it. I don't imagine any kind of free speech argument will hold and Coca Cola would definitely sue (and most likely win) the Times for damages.

[Daniel J. Wilson]

Todd --

The problem with your analogy is that Think Secret isn't distributing actual intellectual property, which would be software in this case. They are disseminating information about intellectual property.

For your Coca-Cola analogy to work, Think Secret would have to have posted Apple source code.

[jerry]

How could Apple possibly determine the leaker? It's been 18 months and President Bush still hasn't found the Valerie Plame leaker, and that guy works within 30 feet of George!

[MasonMcD]

Trade secrets are also a form of property for Apple.

Remember how Apple got screwed initially. It wasn't the GUI code, per se that Neville Chamberain... err... John Scully screwed the pooch on with MSFT; it was the "look and feel" of the windowing system. While a particular software implementation can be IP, Apple has also successfully sued people like emachines that just take Apple's ideas and blatantly rip them off. The suit against Think Secret is an attempt to protect trade secrets similarly. Not to keep them secret forever, but during potentially sensitive time periods.

I don't think Apple is being malicious, but acting in a legally mandated fashion. If you don't make the effort to secure your ideas/trade secrets/look and feel aside from patents, you may not be considered to have a legitimate claim to the work you've put into market research, design, development etc.

I think it's a "draw a line in the sand" lawsuit - that may also have the intent to intimidate leakers - rather than one that is actively looking for information from Think Secret.

[steve crandall]

I'm not lawyer either, but was talking to one last night.

He made a few points:

1. This type of information is undoubtedly covered by a NDA. Violation of an NDA is very serious and historically third parties have been invoked to smoke out NDA violators.

2. Intellectual property is treated as property and passing known stolen stuff (source code, business plans and other trade secrets) is considered the same as passing known stolen material by the courts, The critical point here is the site in question actively solicits information that is known to be covered by NDAs.

3. This gets blurry when you consider whistle blowers. The law isn't universal - what if the secrets are wrapped with a crime the company is committing? In that case a whistle blower can be protected for the greater good. Whistle blowing rarely covers new products.

4. This sort of thing constantly happens. There are clearly cases where great damage has been done, but most of the time the damage is minimal. A really smart marketer can even turn these events to their advantage and gain millions in free publicity. Jobs is not clueless.

[Evan]

I don't understand what's so "insane" about Apple defending their intellectual property rights. Their employees sign NDAs, they are legally bound to follow them. They leak info, they get busted, simple as that.

NDAs are common in all kinds of industries and professions, yet somehow leaking that info to a major newspaper is "better" or "safer" than leaking it to a website?

[Daniel]

This is not a troll, but Dan would you apply the same argument to the Valerie Plame case as a justification for Bob Novak not being called to reveal his sources?

[flynn]

Nick Ciarelli's business model is to encourage people to break contracts in order to generate ad revenue for his shady website operations.

I certainly hope the EFF stays away from this case as far as they can. It would be one step away from supporting a spammer in his right of free speech...

[George Hotelling]

This seems to be increasingly common on blogs, Jason Kottke was hit with a suit by Sony for posting audio from Ken Jennings' Jeopardy loss. Without the resources of a news organization, I'm worried about bloggers' ability to report facts, which is a chilling threat to online speech.

[john bosnitch]

Think Secret and other such sites know they are encouraging people to violate legal secrecy contracts. They then use this information, which they solicit over anonymous phone lines and email addresses, to sell ads on their site. That's up to them. If they are violating the law, they will lose in court. If they are not, they will win. If they don't like the heat, they should get into another line of work. As for Apple, why should anyone begrudge them their constitutional right to seek a resolution of greivances through the courts. It seems that depriving them of that right would rank right up there with free speech issues.

If Think Secret just wanted to air the "secrets" at Apple, they could easily do so, completely anonymously at a remotely hosted site that could move randomly around the Web and never be traced back to them. They could enjoy all the free speech that they might want. But that is not, evidently, what they are after... they want to obtain trade secrets and then make money by selling ads on the site where they expose those secrets. This is an entirely different matter. Let the courts decide.

There are plenty of far more serious suppressed issues that could benefit more from free-speech protection than this one.

[AZKMAN]

How do you know this isn't some big publicity stunt being pulled by Steve Jobs himself? Maybe he's been doing this for years behind the scenes to elicit exactly this type of response.

[Dan Gillmor]

It's sad to see so many people taking Apple's side on this. Again, Apple has every right to police its own employees. But taking journalists to court is an attack on free speech, and I'm dismayed that some people don't grasp why.

[Digital Czar]

Dan,it's not sad to see so many siding with Apple. This is about TRADE SECRETS and yes, I'm shouting! You ought to put yourself in the place of an owner of such and imagine how you would feel if you were in a highly competative business and things about your upcoming product were let out. Would you be jumping for joy? (With your current attitued,I suppose you couldn' care less).

This isn't about Think Secret, but they're the target the lawers can reach out and touch. Often,the lawyers shoot with a shotgun and let the court decide later who was hit.

Do you really think Apple has no right to defend it's desire,created with a legally binding NDA,to protect it's intellectual property?

I understand too a journalist's right to protect their sources.That is falling under scrutiny, and I hope it holds up for honesty's sake and to protect journalist's right to protect their sources.

[Frodo]

Well, a tangent, then: do you consider Nick dePlume a journalist? I don't.

[Jeff Kirk]

Trade secrets are not political secrets. They're matters of business. They're protected by state and federal law. If you claim it is arrogant for Apple to protect its trade secrets, then you might as well move on to claim that non-disclosure agreements are chilling freedom of speech as well.

What IS arrogant is for members of the media to assume that everything under the sun is fair game for a public story. What pressing need is there for the public to know about a product that hasn't been released? No one's life or freedom is jeapordized by Apple, or any other company, for that matter, enjoying the freedom to surprise their customers and their competitors.

Of course I enjoy finding out about these things in advance as much as anyone, but that enjoyment doesn't supersede a company's legal right to protect its intellectual property. Nor should it.

[Dan Evil]

BTW, Dan, it's sad to see you on the wrong side in this. Think Secret is deliberately inciting employees to illegal behavior. There's no public good in what they're doing, either -- it's not like whistleblowing. It's not public money being used to develop these products. It's not national security at stake.

[Chidi Onwuka]

Dan, I think it's really sad to see how you seem to buy "the little guy can do no wrong" approach. Your statement that taking journalists to court automatically equates to an attack on free speech needs to be backed up by facts that let us, the readers, know that you actually understand what is going on in this case. It would help if you included some specifics as to what Apple's beef is with Think Secret. Perhaps you could have mentioned that they were none too happy with the amount of detail Think Secret revealed about the said product.
When you say "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" I'm left wondering how do you know this? Nothing to do with whether or not you are correct, but how do you know? In an opinion piece I'd let it ride, but since you are talking journalism here, please let us have some facts.

As far as I am concerned, a good number of the web's blogger population has yet to understand that opinionated columns are not the same as objective journalism.

[Todd Blanchard]

Dan,

1) Think Secret is guilty of receiving (and attempting to profit from) stolen (intellectual) property.

2) Think Secret isn't remotely journalism. Its a clearinghouse for practitioners of corporate espionage. I like to think that real journalism somehow benefits the greater good. I don't see how working to destroy a carefully oriented marketing campaign serves the greater good.

I'm very pro-journalism. That's not journalism.

[schwarzy]

the pro-apple comments here are irrelevant since they obviously come from ste usual mac-zealots.
Apple should instead *thanks* sites like thinkSecret because they're still generating interest around a dead platform (1.5% in western europe -where i'm writing now-
in the last quarter). BTW, as Dan said, we can easily solve the problem: by stopping buyng Crapple's machine at all.

[Martin]

There's no doubt Apple has a right to enforce its non-disclosure agreement.

There's also little doubt that Think Secret isn't exactly the paragon of journalistic ethics here. None of this invalidates the fact that Apple's actions threatens their freedom of expression to publish the sort of material they do.

This clash of irreconsilable competing interests free expression vs. the right to create and enforce secrecy contracts &mdash is what this sort of case is always about. Just siding with one of the parties in one instance doesn't really get us anywhere in terms of understanding the principles at stake.

The real issue Dan is trying to get at is how the politics of such cases change when one party is a tiny web site rather than The New York Times. Whever the merits of Think Secret, the outcome will affect all small web site publishers. Is Apple taking this action because it's easy, or because it has truly exhausted all other, less "chilling" avenues for finding the leaker?

[jesper]

schwarzy, you are an entertaining person. not very bright and not very knowledgeable but willing to bleat out obediently like sheep. simple, primitive reasoning; pro-apple means usual mac-zealots. anyway thank you for the new year's light entertainment however next time please make an effort to actually say something sensible.

[Stephen Howard-Sarin]

Dan's point about the little guy getting stomped is right on. I worked at MacWEEK for many years and we regularly published the sort of information Think Secret is getting sued over.

We even had an internal rule of thumb: when Apple officially announced a product, we'd publish the details of the successor product that week. We published specs, even benchmarks, and 90% of the time this information came to us from people violating NDAs (including some company execs).

Apple screamed, yelled, initiated internal pogroms and "security awareness campaigns," but they didn't sue the media -- I believe because we were a billion-dollar company with a legal dept. to defend ourselves.

The key point here is that Apple is mis-using the term "trade secret." There are no trade secrets (like the forumla for Coke) involved here. All the information will be made public by Apple on its own, probably next week. Apple is not protecting its trade secrets, its protecting its PR schedule.

Stephen