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March 12, 2005

Comments

James Katt

Dan, you are WRONG, WRONG, WRONG.

I have been a Mac user since April 1984. I have owned 17 Macs. I'm a huge Mac fan. If Steve Jobs had to leave, I'd love to be the CEO of Apple. I even bought stock in Apple.

The most important thing is Apple's survival. Journalists who engage in industrial espionage, who recruit people who break the law are wrong. They put Apple's survival at risk. Apple should be able to obtain the sources for these Journalists.

If you don't want to use or buy a Mac, that's your choice. But TRUE Mac fans see the ruling as a good thing. I will continue to buy Macintoshes. I applaud the judge's ruling.

Go Apple!

anonymous

Just a comment about the example of companies engaged in secret negotiations with competing communities... those negotations and terms should be public and we need to create a public ecnomic policy that is fair to both... not one that drives towns and neighborhoods into tax-give aways for the lure of a handful of jobs. That's the problem that needs fixing, not protecting the right of companies to threaten, cajole, & "bribe" local communities into submission.

In the scenario outlined, the newspaper not only has the right to publish the story, it is failing in its duty if it doesn't. (Consider the Pentagon Papers as an even bigger "secret" that the Supreme Court ruled could be published.)

Dan is right is his take on all this. What Apple is doing is trying to control the media & the hype and spin... they love rumors and speculations until it hits too close to home. Those were not "trade secrets" being published, and the "details" were released close to the time of the unveiling anyway--no time for anyone to profit by it. There was no harm done except to Job's ego.

For an historic look, go back to the Mac's launch. Apple didn't sue then because it was in their interest...

"A look at secret new Apple computer" at http://www.mercurynews.com/mld/mercurynews/7731271.htm Google and check the cached version if you're asked to register.

Come on folks, don't be naive about corporate power and its influence on the media and the society. Just consider what happened to Boston Legal and its show airing tomorrow that was to have had a criticism of Fox "News" in it.

rathersilly

"I took the lead in creating the Internet"

-Al Gore.

Sorry folks, he really said it.

machead

Why does journalist think they have any human value? Simply stated, they don't!!!

Jay O'Conor

Mr. Gillmor,

I appreciate your position, but I believe that the community and industry would be better served if you were to take a moment to look at this problem from the other perspective.

As an Apple customer, I eagerly read various Apple/Mac oriented rumor websites. Advance insight into Apple's plans definitely helps me as a consumer.

As an Apple stockholder, I *expect* Apple to protect their intellectual property very agressively. If Apple employees are leaking proprietary information, then Apple should take every step possible to stop this. Encouraging Apple employees to reveal proprietary information is despicable, and not legitimate journalism, whatever the venue used for the reporting. Reporting on unreased Apple products does not serve a greater public good than protecting property rights.

I am sure you have been in this industry long enough to remember the problem that advance information given to the public caused for Adam Osborne. I'm sure Mr. Jobs remembers this lesson as well.

This issue demonstrates a very difficult balance between property rights and First Amendment rights. Both rights are very valuable aspects of our democracy.

MD

Whether these sites are journalists or bloggers is irrelevant. Whether or not they printed "trade secrets" is also irrelevant. What IS relevant is that they solicited/induced individuals under NDA to divulge information covered by NDA -- that's illegal, and the press is ONLY exempt from such laws in the case of clear public interest. Meaning Watergate, not upcoming Mac models.

The hysteria about this case is riduculous. It's fairly cut-and-dried, and it has nothing to do with "freedom of the press."

Anspar Jonte

As a life-long Windows user, I have to say that the only time I'm even aware of new Macintosh products is when I see the scuttlebutt secrets whispered around on blogs. If Apple takes that away, I pretty much will forget that Apple exists.

You've gotta be pretty stupid to litigate away free advertising.

shaitan

Seems all so childish to me - So take that Apple, I'm going to spite myself by not buying your product. I suppose in so way you fell your Jounalist-hood is being threatened. Too bad, but the facts are clear, illegal means were used to obtain that which serve absolutely no public good. I like rumours and speculation and that's where it should stay, but to have someone ruin my Christmas, by saying "I tore open the vault and I found the hidden gifts, and this is what you are going to get..." is no fun at all.

Scote

This is interesting. Dan doesn't normally get this many hits on his new blog and it is also odd to see so many pro-corporate / anti-journalism voices here. It is almost like an orchestrated campaign...

The Apple case really is a key moment for the future of journalism. As some have suggested, a corporation could declare that all of its information is a trade secret, even its malfeasance. Clearly Enron's use of market gaming techniques was the secret to its success in the competitive energy market. These fraudulent methods could easily constitute a Trade Secret, and Enron could sue any paper that published such information based on the Apple ruling. After all, the judge said that an interested public isn't the same as public interest--apparently the judge will decide for us what is news and what isn't.

Additionally, there is no way for a reporter to know what is and isn't a trade secret. Is the number of Apple's on-line music sales a trade secret? Is someone who reverse engineers an iPod to put Linux on it revealing "Trade Secrets" when they say how the iPod boot loader works? Are all rumors about Apple de-facto trade secrets if they turn out to be true? And how can you know whether it is a trade secret until it turns out to be true or not?

Because companies can declare anything and everything to be a trade secret and because it is impossible for a reporter to know what is or is not a trade secret, it is vital to the public interest (and an interested public) that this judge's shortsighted ruling be overturned as soon as possible. If it stands, it will reduce business and tech reporting to nothing but printing nice, safe-from-litigation company press releases.

jdb

I doubt anyone will read down this far but I want to pose an analogy anyway.

Dan, let's assume you are an investigative reporter. And let's say someone broke into your office and put a keystroke logger on your keyboard. The logger sends everything you write to the criminal electronically. He takes your words and work and gives them away to another journalist "anonymously". That journalist discovers you do good work and everything given to him is true and accurate and it isn't like he is the one who stole your work. Oh and by the way, your byline is on each of these unpublished reports but the other journalist just deletes that as inconvenient.

Now, how do you feel about keeping anonymous sources anonymous in the face of broken laws? In this case, wouldn't you really want to know how and who was stealing your work? But you can't because all journalists are always allowed to protect their sources.

The argument is ridiculous on the face and you and other journalists need to step back from your own agenda and see that.

me

Wahhh... Wahhh... I'm wirting this on a mac, and I won't be next time because Apple protected their propietary information legally... Wahhh... I want my mommy. You're a joke.

Zato

"Enron's use of market gaming techniques was the secret to its success in the competitive energy market. These fraudulent methods could easily constitute a Trade Secret, and Enron could sue"

Really! A "fraudulent method" could be a trade secret protected by NDA's. Give me a break. A fraudulent method written on paper is called a confession.

Stuart Logan

Jason O'Grady (of PowerPage) took a slide presentation that contained an exact copy of a detailed drawing of 'Asteroid' created by Apple. Apparently the drawing came from a set of slides marked "Apple Need-to-Know Confidential," the judge wrote in his decision. The circumstances under which those slides were obtained convinced the judge that O'Grady was in violation of a state law that protects intellectual property (trade secrets) from being disclosed.

The Powerpage is no friend of the Apple community when they are willing to post stolen information on the web to drive hits on their website. They are acting for personal benefit and to the detriment of the Apple community. As much as Mr Gillmor wants to make this about who is a journalist, or the first amendment, it is not. It's about some people who posted trade secrets on the web and no don't want to be accountable for their acts. They do a diservice to true journalists by tring to hide beneath their petticoats.


Disclosure: I have been an Apple customer for 20+ years and am also a stockholder in Apple Computer.

Scote

Zato wrote:
"Really! A "fraudulent method" could be a trade secret protected by NDA's. Give me a break."

Sorry, but you are wrong on this. Fraud is only fraud once you have proved it in court, but you can't prove it in court without knowledge of the fraud and evidence of it. Until a case of fraud has been proven against a company such as Enron, their market gaming techniques could be considered an innovative business method--and a court may have ruled in Enron's favor. To this date, Enron has not been held to be legally culpable for the totality of its dealings.

The problem is that corporations are inherently amoral. You can't jail a corporation, you can only fine it or tell it to Cease and Decist. Laws are only important to a corporation to the extent that they threaten the profitability of the company. For instance, if dumping toxic selenium in to the bay is worth a $10,000 fine but the cost to for a new system that would not to dump the to waste in the bay is $10,000,000, the business decision may favor dumping the waste--depending on what other potential liabilities their might be.

Zato will probably try to say such a decision matrix would never happen, but we have seen very similar equations happen in the automobile industry. Car manufacturer's decided to settle SUV roll over law suits for years rather than make the SUVS lower and wider. Settling the suits was cheaper and the internal documents regarding their knowledge of the roll over risk were secret, and kept secret in all of the sealed settlements. Secrecy, in this instance, was against the public interest, but what news organization will risk a trade secrets suit to investigate this kind of story now?

Zato also doesn't seem to realize that NDAs can cover more than trade secrets. In the case of the Michael Jackson Trial, the previous civil case against Jackson was settled secretly. It wasn't clear that even the government could compel the boy in that case to give a deposition because of the NDA. In this case, the government believed they could break the NDA, but the same could not be said for another civil suit. If Zato's little boy had allegedly been harmed by Mr. Jackson, Zato's attorneys could not subpoena the sealed records from the previous cases nor could they depose the previous accuser because of the NDA.

Secrecy is generally against the public interest, and the Apple ruling is, too. Apple's interests are not the public's interest. Corporations are not the public.

~bc

I really enjoy Dan's work generally, but feel he's missing this one by a mile, and I can see why. He's given up his whole career to concentrate on the convergence of blogs and journalism, and he feels these proceedings will have a chilling effect on his new venture. Without this sounding like a personal attack, I don't really blame him for taking an extreme stance that paints his interests as infallible. After all, he's trying to portray bloggers as legit news reporters.
The achilles heel of this is that he's tying his wagon to a bunch of theives and petty criminals. If these site were reporting on a company who was doing something illegal, there would be no doubt, they'd have a right. The public would benefit. They are not doing anything for the public good. They are only benefiting Apple's competitors. You and I get no benefit (except for perhaps entertainment) but the competitors start their copying early. There is no journalism going on here, so that is besides the point. Dan is thus indirectly representing that theft of proprietary information is good journalism is going to do more harm in portraying bloggers as theives and hacks than its going to help good, legit, news-reporting bloggers (like Dan himself). He's associating himself with the worst of breed instead of the best of breed. And I wouldn't even call these places blogs so much as just "sites." why must everything be a "blog?"
I was pleased that so many of his readers (like myself) disagree with him.

Jeff

Dan,

I usually agree with you. My knee-jerk response to litigation where a corporation sues a little guy is usually to support the little guy since I have a tremendous distrust for corporations.

However, even before the judge ruled in this case, I could see that my knee-jerk response was wrong this time. I, too, was upset that Apple's lawyers tried to argue that bloggers weren't journalists and my hope was that he would see through that garbage and he did. My hope was for a narrow ruling. That's exactly what he handed down -- a very narrow ruling that protects journalists where they deserve to be protected. Assisting in corporate espionage is a different matter and he stated that in the ruling.

You and several others commenting here have put forth the "slippery slope" argument as a reason to oppose this ruling. Frankly, it's a lame argument. It reminds me of the way the NRA endlessly argues that if you outlaw machine guns it will lead to outlawing shotguns and ultimately to a police state. Nonsense. The judge in this case saw through the BS put forth by both sides and made a common sense ruling.

Al

I can fully understand the concerns of those worried about First Ammendment rights and the journalism profession. But, as someone who is bound by implied NDAs everytime someone in the industry discusses "not for public disclosure" future product or business plans, I have to concur with the judge's decision.

It should be remembered that the person or person's who passed on the trade secrets to the web sites in question were violating the NDAs they signed as terms of their employment/work with the company. They were in violation off their employment contract. Period.

The fact that they may have been satisfying the Apple/MacIntosh public's curiosity does not mitigate the breach of contract. If I, or someone in my position, were to commit such acts, which are not specifically serving the public need to know, I/they would be subject to job termination and civil court actions. That is a reality.

No, I am not an Apple shareholder.

Yes, I am for free speech.

I have bought Apple products for my own personal use, despite working in VAX, UNIX or Microsoft environments most of my professional career. I will continue to do so.

Passion for knowledge is noble. Breaching a contract, or eliciting others to do so, is not.

Scote

"I really enjoy Dan's work generally,"

-Right...

But: " I don't really blame him for taking an extreme stance that paints his interests as infallible. After all, he's trying to portray bloggers as legit news reporters.
The achilles heel of this is that he's tying his wagon to a bunch of theives and petty criminals."

I can't speak for Dan, but it seems clear to me that you don't get anything he's doing. By your definition, not only are the Apple news sites "a bunch of theives and petty criminals," but so is every other reporter and news organization that covers government and industry.

By your post, I'd say that you think that the sites should have called their nearest Federal Prosecutor and turn over the names of every person who has ever told them anything about apple, ever. After-all, all of those things could have been trade secrets at one time.

" Assisting in corporate espionage is a different matter and he stated that in the ruling."

You act like they posted the source code to Final Cut, or the schematics or something. They didn't. They just posted info about an upcoming product, not how to make one.

The ridiculous over use of NDAs is bad for America, Democracy and the exchange of information that in the past has led to so much innovation here in the US.

Herb

"Secrecy is generally against the public interest,"

So how about posting your full name, SSN, mother's maiden name, phone number, home & business addresses, and your income? Oh, and a valid email address while you're at it. I'm an interested member of the public ;)

And if secrecy is against the public interest, isn't that an argument *for* Apple's case: that the 'secret' source(s) should be revealed?

AT

Apple is right. The judge is right. Dan is wrong. Dan can't seem to tell the difference between journalism and scooping for financial gain. Dan doesn't seem to care about the spirit of the laws, which protects reporting when it's in the public interest, rather than patently peddling illegaly obtained and disseminated information. Apple has always surprised me with how far ahead they are, and I've come to expect that. What I've stopped frequenting is the infantile rumor sites, because Apple has finally started delivering on the promise of the last 25 years and you can count on it, rather than whipping yourself into a lather. The rumor sites add nothing to debate, probity or culture, other than a trashy frenzy around product releases.
I am not only NOT boycotting Apple, I am putting Dan on notice that if he keeps driving dumb-ass arguments like this one, he might be dropped from my reading list like a brick, which he is mimicking in his reasoning this time...

don't be silly

get clear on what Gore actually said:

What he said was, quote, "When I served in the Congress, I took the lead in creating the internet" unquote.

Now you can argue that that's an exaggeration of his role... but if you talk to the people who were involved in the early days of the internet, they will tell you that among politicians, Gore was something of a visionary in this area.

But he was clearly talking about his service in the Congress. He was not saying that he was down in his basement, you know, writing computer code and inventing file transfer protocol.

degustibus

Shoot, I'm ahead of the curse, I've like been boycotting Apple.......forever

Alex in Los Angeles

I'm glad the Judge did not rule bloggers were not journalists.

I'm glad the Judge in effect stated that any journalist would be treated as these bloggers were.

But, I sure wish some of Dan's readers would stop confusing NDA with Trade Secret. Just because company X makes people sign an NDA does not mean they can now sue any journalist who publishes NDA covered information. That company better be sure it has a trade secret in question before it tries to sue the NY Times. In the same sense that the journalist has to show the story is in the public interest, a company should need to show that their secret is truly a trade secret.

Also, I think reporting news on factory closings/openings is exactly the kind of news that is in the public interest. A NY Times story on that kind of news would inform the livelihood of a whole community, however much it inconveniences the business' interests. Obviously whoever leaked the information should suffer consequences, but I think the public would have been well served.

I'm definitely glad California has a shield law already, because it seems like some of Dan's readers would throw all media in the slammer for pissing off their favorite corporate daddies.

anon

I have an interest in Apple on many levels, including having a significant chunk of my portfolio invested in the company. I watched the stock become unstable as the leaks were published. I also saw as the product announcements didn't produce as much of a bounce in the stock price. Timing is everything. These announcements are very strategically planned. Leaks being published undermines this strategy and, ultimately, affects the value of the company.

That said, Apple was not suing the web site owners for damages. They were only asking for the sources of the leaks, so that they could execute their right to throw the book at them.

California has state laws that prohibit anyone from publishing information that is known to be trade secrets. Unannounced products are trade secrets. Information about unannounced products are trade secrets. For competitors to know about these products even a week before they're released would result in damages to the company. Their competitors would have an additional week to catch up to their designs, specs, pricing, etc. Thus, leaking information one week early means Apple will have competition to its new product a week earlier than if the secrets had remained confidential. These are concrete damages.

Some have argued that journalists should have a right to break stories about companies who might be breaking the law, and that this ruling sets a precedent that will discourage this type of reporting. Most states have whistleblower laws that protect journalists and their sources in cases where journalists discover an entity engaging in fraudulent or otherwise illegal activities.

The point: Apple could have easily gone after the web site owners themselves for damages, as California law allows it. As was mentioned earlier, some of the documents leaked to them clearly indicated that it was confidential. They published it knowing this. Apple chose to limit the case to just suing for their sources, though, which does show some restraint on Apple's part.

If the web sites had published libelous/slanderous information relating to Apple, would those of you who support them still be on their side?

Scote

"So how about posting your full name, SSN, mother's maiden name, phone number, home & business addresses, and your income? Oh, and a valid email address while you're at it. I'm an interested member of the public ;)"

You miss my oh-so-clever qualifier "generally". But I supposed I should be more clear: Secrecy by organizations that have power over the public is generally bad for society. Secrecy is used to cover up a variety of ill, corporations use secrecy to defraud their shareholders, governments use secrecy to illegally hold prisoners, and individuals use secrecy to force people in settlements to keep information about alleged criminal acts secret (eg. the 1st Michael Jackson settlement.)

The information you requested could be used to commit fraud. The information about Apple's upcoming product can't. Plus, the freedom to speak is benefited by the freedom to speak anonymously, so we can be free of harassment.

>And if secrecy is against the public interest, isn't that an argument *for* Apple's case: that the 'secret' source(s) should be revealed?

The freedom of the press is not unlimited, and some transgressions warrant a search of the e-mail records; however, that bar needs to be set high to protect the rights of a free press. As many have pointed out, Apple has not done a thorough internal investigation first. They actually want the records of the ISPs of the Apple news sites, without exhausting other avenues. A non-internet equivalent might be that someone told you about about a cool new Apple product and then you told some friends at a bar. The next thing you know, Apple is asking your ISP for all of your email. That really is what is happening, and that is without even taking into account the role of the Apple news sites as news organizations.


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