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March 12, 2005


Denis de Bernardy

Err... Dan...

Companies already label much about everything they do as 'trade secrets'.

Moreover, I'd be quite amazed if firms did not try to bully journalists into simply repeating whatever BS their PR specialists come up with. And sue for damage repairs whenever a nosy or opiniated journalist (or a blogger, for that matter) writes something they do not like.

Imho, the US journalists and bloggers are in a quite comfortable position. In France, a recent law allows companies to sue newspapers (and bloggers, presumably) for damage repairs for as long as the information is online (including, say... in or in google's cache, for instance). This contrasts with France's century old law on the freedom of press, which used to only give 3 months to the parties to seek damage repairs.


Journalists may be better equipped in the U.S. than France to conduct business reporting, but both are being unfairly hamstrung by the legal system in cahoots with corporate interests.

This curren ruling is pathetic.

It gives corporate attorneys the ability to bludgeon any reporter who gets too close to a story - before the story is published.

This is really bad because most American newspapers already backed away from agressive business coverage 20 years ago. First, business reporting is more complicated than covering the police or city government, and most publishers don't want to have to pay the salaries for more experienced reports. Second, good, tough business coverage makes waves, and publishers don't want to make business owners angry, since they tend to own businesses that may advertise in the papers.

Rulings like this help keep the covers over things like Enron insider trading and government complicity in same.

By the way, anyone notice that Martha Stewart already has been sprung from jail and Ken Lay doesn't even go to trial for another year? They're doing everything possible to erase the prickly financial public memories before they do a flawed job with the prosecution on that one.


Dan, your comment on giving pause to buying another Mac suggests a possible response to Apple.

If Jobs is going to prosecute bloggers, maybe bloggers should organize a Mac boycott. There's space for a lot of online billboards...


As you point out Dan, companies will simply categorize everything as a "trade secret" and make it illegal to discuss/disclose it. This ruling does to general information what the DMCA did to technical circumvention knowledge.


Well Dan, if Apple's actions give you pause to buy another Mac then surely Microsoft's lack of ethics must do the same. Of course China's lack of respect for intellectual property, the environment, and workers' right will push you to avoid any Chinese made component. Actually that would hold true for most of the Asian rim with the possible exception of Taiwan.

So you next computer will Atari 800?

Denis de Bernardy

Loid: I perfectly agree with your point. There might be a way to circle these kinds of rulings, however, since by its very nature Internet is disrupting law-systems: If you cannot publish an information in one area, you may very well be elligible to publish it in another. You could imagine online newspapers hosting their web sites in banana republics where no laws protect corporate bullies.

Harry Lime

I think the key factor that the Judge ruled on was that the information was clearly lifted from a highly confidential source. This strikes me as different from investigative journalism. If Ciarelli has put the details together from legit sources, he'd be cool now, but he had a mole leaking trade secrets and that is covered by CA law. Apple didn't write the law they are simply asking that it be followed. Cut Apple some slack here - much as I like to read the scoops from Think Secret - I can afford to wait one extra day.


What is so hard about understanding that these bloggers/journalists obtained information they should have never had in the first place? It's like a person in possession of a gun that someone else used to murder someone. They shouldn't have it! These websites should have never published what they should not have been privy to. Would anyone have been hurt by saying "no?" And personally attacking people who happen to like the products Apple makes just makes you look silly and whiny. Lastly, what about all the people who work at Apple? Apple is not Steve Jobs. Apple is thousands of people who create products and receive a paycheck for their efforts. Who speaks for their job security? Steve did. He wants control of the fruits of Apple's labors. I don't see anything wrong with that. All of you who disagree with this decision need to put yourself in the shoes of ALL the parties here and stop looking at it only from a journalistic or technological perspective. The world is not coming to an end just because Apple is allowed to hold onto their property.

Bob Crisler

The debate on this issue has become hysterical. And I don't mean 'hysterical' in the funny way, either. Irrational, driven by emotion ... that's what I mean. There are bloggers who are journalists, and there are bloggers who are not. And I'm not sure that the so-called rumor sites, whose best 'scoops' are in fact leaked trade secrets, are deserving of the title 'journalist.' They are, in fact, witnesses to a crime. In many cases, they are parties to crime, as they actively encourage the crime.

Apple's future as a business may or may not depend on their famous secrecy. But that's for them to determine. Not for a blabbermouth employee and a kid with a website.


A lot of people have looked at this ruling as the Big Bad Corporation stomping all over the rights of the small journalist. I see it somewhat differently - this ruling protects small business like mine from the Big Bad Media companies who might try to publish illegally obtained information about my R&D or clients' interests.

I don't see a problem with this, especially since the judge strongly implied that information involving "a health, safety or welfare hazard affecting all" or government "mismanagement" does deserve protection. You don't have a right to know my research secrets any more than I have the right to know about Dan's sex life (not that I want to know! ;)


I think you are wrong on this matter of whether Apple is right about protecting their secrets about coming products. The judge, Kleinberg has ruled clearly on whether a forthcoming product's specs were thrown out in to the public view.

He has not ruled against small electronic print journalists, one man presses. He made that clear.

Has independent evaulation, or consideration of Apple, or anyone else's direction been hurt?

On this, I agree with you, that Apple was wrong to contend, as its attorney did, that the small web site print journalists should not be considered journalists. This should be resisted. You are also right that many of the folks who took up this cause are natural allies of Apple. I hope this concludes soon, and I certainly hope that Apple will acknowledge and be for the small and independent minded 'press', or just individuals in the blogosphere. It is a side that Apple needs to be on, or that I want it to be on.

I would like to think that you are wrong about Steve Jobs. He has shepherded along this personal computer for quite a long time. I hope that he realises that they took off on a wrong bent to consider small presses, which after all Apple has done much to help, as not being journalists.


Herb- You underestimate the effect of this ruling. Here in Washington state a company could claim the internal workings of their company to be covered by this kind of trade secret law. While that wouldn't help them if they were actually breaking a law, imagine this type of scenerio. M$ decides to fire all Gays employed in the state. Since it's legal in this state to fire someone because of their sexuallity, would leaking this action to the press constitute a breach of trade secret?

Jim Royal

Okay, let's create a hypothetical example to move away from the particulars of this case.

Let's suppose Ford is planning to build a new plant in your state/province. They're trying to decide between your town and a neighbouring town. Delicate negotiations are underway between the municipalities, Ford, and local construction unions. The negotiations are confidential, and all parties are under an NDA until a site is picked and contracts are signed.

Further, let's suppose that a secretary in one of the construction unions leaks details to a local paper suggesting that one town is more likely to receive the plant than the other. She does this in voilation of the NDA.

Question 1: Does the paper have the right to print the information?

Question 2: Is there any news value in running this story?

This is clearly not a case of a whistler-blower. There appears to be little or no public interest in prematurely releasing details of the negotiations. And premature disclosure could increase Ford's costs if negotiations become more heated as a result, or possibly even derail the whole process. So:

Question 3: If the paper runs the story, and Ford sues, is the paper's legal position defensible?

I'm not a legal expert, but my gut tells me no. There is no public good that comes from using the information provided by the secretary. The paper gets spanked.



It saddens me to see that you seem to think investigative journalism is nothing more than repeating information given by people under non-disclosure agreements.

You're the one arguing for transparency in journalism, yes? So if a reporter learns a trade secret in a legitmate way, that is, without anyone violating an NDA, then the information can be reported in a transparent manner, with all the steps layed out how information was obtained, and then the public has more reason to trust the information and companies cannot prosecute if it is obvious no one violated an NDA.

Jose L. Hales-Garcia

"During the time Steve Jobs has run the company, Apple has been hostile to truly independent journalism about its products and policies"

In the highly competitive computer market that is defined by the Microsoft establishment, it's Apple's foremost responsibility to guard its future plans from all informers, most especially from false allies. To do otherwise would be caving into the Microsoft establishment's favorite charge that Apple is irrelevant.

If while guarding its secrets from the Microsoft establishment, I'm denied my ability to pry, then that is alright with me. I will be content finding out about their products when they decide it's appropriate.


Does anyone actually read the stories or just the headlines?

First of all, for all those that are compaining about Apple suing the websites/bloggers, they aren't. They are suing John Doe's for not respecting the NDAs they signed. They are merely asking that the websites/bloggers reveal their sources so they can change those John Doe's into real names.

Second of all, I don't see how the press should be exempt from laws that the rest of us have to hold to. What may of you are saying is that being an accessory to a crime should be OK for journalists. That doesn't make any sense. They should not be able to use stolen information any more than anyone can use a stolen TV.

Third, the judge stated (and is absolutely correct as far as I'm concerned). There is a difference between "interested public" and "public interest". Just because people want to know doesn't mean they have a right to know. Those websites/bloggers put themselves in this position by using stolen information.

Under the logic of many people wanting to protect the press, this scenario would be legal. Joe Reporter wants a big story. So, he entices a guy that works at a bank to rob the bank, then to tell him how it can be done, so he can write about it. The police come to the reporter and ask who did it because from the detail that the reporter had, he obviously talked to the bank robber himself. The reporter says no, because his sources don't have to be divulged. The is exactly analogous to what happened in this case.

Let's stop trying to protect criminals by privacy laws.

Jeff Hume

Dan, you may have a point, but I would content that there is far far more nuance to this issue than you and many others are presenting.

I wonder if you even bothered to read the judge's ruling and see what he actually said. He said that public interest would still be presented. The specs of the next iMac are not something that should be considered under investigative journalism.

Karl Groeger

Apparently a lot of people, after all this hoopla, still don't understand the difference between speculation about business products and theft of of product information. One can speculate that Ford is going to come out with a six-wheel drive, six dour convertible, and that's covered by free speech. One cannot illegaly acquire actual product information from a Ford employee that is sworn to secrecy, and then publish that information. That's covered under trademark laws, and for some reason, some can't differentiate between the two. This has nothing to do with journalism; it has to do with enforcing law that is on the books. If one doesn't like the law, then they have the right to work to get it changed, but not by breaking it.

Dan, if this causes you to reconsider buying a Mac next time, perhaps pencils and legal pads would be more appropriate, as Microsoft's business practices have landed it in far more courts than Apple.


Here's a case really worthy of Dan's saber rattling: Microsoft takes a kid to federal court for auctioning off software he didnt use and was authorized to sell:

I wont bother restating the real issue (enforcement of NDAs) since Karl, David and Michael above state it succintly - the real question for Dan is: much as I enjoy sites like appleinsider, macrumors etc., do you think NDAs are worthless and employees shouldn't bother enforcing confidentialty agreements? What happens to all those silicon valley stealth startups then?

I hate that Apple is suing "kids" and getting negative press but then the entire validity of NDAs goes down the tube if enforcement is not a consideration.

Fyi..I am looking for a replacement for my powerbook and it'll for damn sure be another Mac.


"Herb- You underestimate the effect of this ruling"

Knowledge of discriminatory practices (even if legal) falls under the public interest. Knowledge of ongoing R&D doesn't. Again, I don't see the issue.


This is a good thing!

Find the bastard/bitch who can't keep their mouth shout!

This is not about some punks blogging but about finding the leak and canning their ass!

Go Apple :-)


Has anyone communicated with Al Gore on this subject?

He's on the Board of Directors of Apple.

And, as the CREATOR of the Internet, for goodness sakes, you'd think he would be sensitive to the issues involved.

Joe I.

I would urge all bloggers to BOYCOTT Apple. Put away your Macs and put off purchases....The problem here is Apple, although not dominate like Microsoft, is and has been much more arrogant with its users and business practices. It is their way or the highway.

By the way I am on a PowerBook and really kind of agree with the judge but if bloggers feel strongly why would you use the platform from a corporation that might due your work the most harm?

Joe I.

I would urge all bloggers to BOYCOTT Apple. Put away your Macs and put off purchases....The problem here is Apple, although not dominate like Microsoft, is and has been much more arrogant with its users and business practices. It is their way or the highway.

By the way I am on a PowerBook and really kind of agree with the judge but if bloggers feel strongly why would you use the platform from a corporation that might due your work the most harm?

Bob Crisler

You know, one of the things that sucks the most about the Internet is the capacity it has for edification, and how so much of that capacity goes unused. 'rathersilly,' above, repeats the Republic Party attack chiding Al Gore for saying something he never said. Easily enough, one could read Vinton Cerf's posting on the subject:

See, the Internet CAN be useful ... and Al Gore deserves some of the credit for it.

If your partisan blinders won't allow you to acknowledge the conributions of others, in this case simply because one of these others dared run against Dubya, you may continue making stupid jokes instead of contributing to society.

My children wish to thank you for the unprecedented, drunken-sailor spending of their money.

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