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EFF Joins Fight Against Apple Lawsuit
sutterpants writes "The BBC is carrying a story on the legal battle between Apple and free press advocates. The Electronic Frontier Foundation has joined in the fight to protect journalists from revealing their sources. Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
Funny how almost no story or commentary about this ever mentions that current, in-force US laws may have been broken in the publication of this information:
http://www.washingtonpost.com/wp-dyn/articles/A793 7-2005Jan13_2.html
But while lawsuits against online publications are rare, he said, the Uniform Trade Secrets Act, versions of which have been adopted by about 45 states, including California, prevents third parties from exposing information knowingly obtained from sources bound by confidentiality agreements.
"Just because you don't have a relationship with the company doesn't necessarily immunize you, if you publish what you reasonably should have known was a trade secret," [Andrew] Beckerman-Rodau[, who runs the intellectual property program at Boston's Suffolk University Law School] said. "The First Amendment has been asserted more and more against intellectual property rights, but it's not faring well. Most courts haven't accepted it."
Apple doesn't really care about these web sites. They care about finding out who within the company (or contractor, etc.) is continually leaking this extremely accurate information to web sites (such as Think Secret). And no, it's not information that's "known" elsewhere. Some of these sites have got very reliable moles, and Apple wants to know who they are. Hint: yes, these are people who definitely have binding confidentiality agreements with Apple.
Regardless of whether or not Apple "should" or "shouldn't" be doing this, whether it's good PR or not, etc., if you can't see that it's wrong, legally and ethically, for these people to be leaking this information, then, well, we have nothing further to discuss. Is it journalism and free speech when you violate laws to obtain information? Ignorance of the law is no excuse...
And remember, whether or not you fundamentally *agree* with the law is irrelevant. It's either illegal, or not. (Yes, yes, sure, there's gray areas, but that's not the point I'm making. And sure, maybe these sites "fighting it" in this way is one mechanism to examine the validity of these laws, and further, the role of an online journalist and his information gathering mechanisms, what can be construed as soliciting known confidential information, what constitutes a violation of these laws in this context, etc.)
If Apple's goal is to find out who leaked this information - indeed, if it considers that information critical to its business - and there is a legal mechanism for perhaps recovering that information, is it not within its rights to file suit seeking that information, especially when criminal and/or civil laws pertinent to that very information may have been violated? You might THINK they should hire a private detective. You might THINK any laws prohibiting these sites from revealing such information are incorrect, immoral, or unjust. But those are subjects not relevant to the case at hand, unless, of course, you believe the EFF challenge is a fundamental challenge of these laws.
I'm not talking philosophy here, or whether or not government officials can/should leak to the press. This is not about the Seymour Hershes of the world and the Pentagon Papers. I'm talking about the legality of this particular case, which involves a corporate entity, not issues of "throwing reporters in jail" to "reveal sources". Note that under some conditions, journalists HAVE, in fact, violated the law, and have, properly, been thrown in jail. The concept of not revealing confidential sources isn't some high and mighty ethical concept; in fact, it's a rather selfish one: at some level, it ensures them more sources in the future. It makes them more effective as a journalist. Whether they've got lofty ideals or what have you is again irrelevant. The point is, we either enforce rule of law as set by society in this country, or we don't. And yes, we can work to change law(s), protest against them, a
...and we still don't know who Deep Throat was, I have to admit surprise that modern corporations can muscle the media better than the federal government, particularly the Nixon administration.
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"Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
Journalists.
Next question.
"Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
Why not look and see which right is guaranteed by the Constitution? Hmmm, nothing about trade secrets there, but I do see something about free speech and freedom of the press in the First Amendment. So I would pick door number two.
Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?
The rights of Apple to protect their trade secrets is not really the case here, as I understand it. The breach of trade secrets was done by, I assume, someone from inside Apple. This is the culprit that Apple should seek. But they are taking the easy route and trying to bully a small time web site in the hopes that it will discourage similar reporting in the future. Not very upstanding behaviour. What they should be doing is a security audit to find where the leaks are coming from. However, that is much more difficult and complicated. Its easier to try and put the fear of litigation into everyone. *sigh*
I think the freedom of press is more important, since it is a constitutional right. The Constitution does not say that a journalist has the right to keep his/her sources secret, but this has been upheld in court countless times... If you punish the press for being the mouth of someone else, you're not solving anything.
If you have trade secrets, you need to be very careful who you give them to, period. If a person you trust releases their secrets, its because you didn't do a good enough job of understanding that person.
If I were a journalist, I'd go to my grave with my sources, if they wanted to remain anonymous. Freedom of speech also includes the freedom to shut up. That goes for corporations and journalists.
It's just a matter of time for a precedent-setting case to take this huge chunk out of the First Amendment. It's gonna happen. I would just hate for Apple to be the one opening the flood gates.
Currently bidding on sig
Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?
That this is even a question is cause for concern. Originally, from what I gather from history, journalists held a very important role in our society. Arguably more important than politicians: They were the watch dogs. They were the ones keeping our elected representatives honest. They had to have free reign, unrestricted by those that held power, to do their jobs effectively.
Now of course, journalists are simply mouthpieces for which ever party they subscribe to. Maybe it's always been that way, who knows, I don't really glean that much off the history I've read.
Mod me down with all of your hatred and your journey towards the dark side will be complete!
I haven't read much into this, but if the summary is right and Apple is trying to protect a trade secret, I was under the impression that it is the companies responsibility to protect this secret and that once it becomes open, there is nothing they can really do to stop it from spreading. For instance, you can't really copyright the ingredients to a cookie, so you keep the recepie secret. If this secret is leaked, or someone figures it out, there is nothing they can really do because it is not copyrighted or under protection.
SIGFAULT
"...or the rights of journalists to protect their sources?" This supposed "right" is always heralded about by journalists and their closest friends. There is no such thing as a right of a journalist. Going to journalism school does not grant someone a certain level of rights that a normal citizen has. If I was to spread leaflets around town, accusing my city mayor of eating Soylent Green made in his basement without evidence, I'm committing a crime. Likewise, a journalist who defaces someone's character and then claims "the right of private sources" is also committing a crime.
The subject of a journalists ability to keep their sources secret has been going on for a while. The question is, when does a journalists right to keep their sources anonymous pass over other rights? How about the right to privacy? How about national security? This lawsuit reminds me of one last october, where a journalist was jailed for up to 1 1/2 years for refusing to release her sources on the CIA leak. (For those who don't know the story) http://www.washingtonpost.com/wp-dyn/articles/A147 77-2004Oct7.html/
On the other hand, companies go through a lot to protect their trade secrets, importantly so, because innovation is the lifeblood of business. The CIA's outlook report said that foreign nations, such as Russia's are no longer spying on our weapons, but on our companies. I personally had to sign a huge legal waiver just to visit my dad in his office at Xerox. So it's easy to see why Apple is pissed off. But should their anger jail someone?
I do not believe in petty lawsuits over cigarettes that kill or McDonald's coffee that was too hot when spilt into the lap while driving. What I do believe in is accountability for one's action and that is where the issue truly lies.
Journalists live and die by the "tips" they get.
The question is the "harm" they can cause by releasing the information.
If a journalist gets a tip that the police are looking for a suspect, releases said tip, and the suspect evades capture by getting the heads up, then the Journalist has, wittingly or not, obstructed justice.
In this instance, wittingly or not, the journalist has revealed trade secrets.
Another example? How about embedded reporters disclosing their whereabouts while in a military operation overseas (hypotethically, of course this would never happen). They endanger the lives of service men and women as well as the operation, but don't even need a source - they (or their GPS) are the source.
Being a "journalist" doesn't give one free reign to break laws.
My vote is that those who disclose confidential (NDA protected) information to a Journalist are breaking the law (civil law vs. criminal law - can be fined but not incarcerated) and the Journalist can choose to use that information if they are willing to also stand before a civil court for their actions.
If they did not know the information was priviledged, then they can just turn over the source, and have that source answer for their actions.
I only came here to do two things; kick some ass, and drink some beer...looks like we're almost out of beer.
by suing a scapegoat, Apple can hype up the product anticipation before its launch simply by word-of-mouth. Afterwards, they'll probably settle out of court quietly for a very low price. slightly dirty tactics, but not that much real damage
Pajamahadeen "working" for some obscure web site?
White House plant in the Press Corps?
Unemployed Columbia J-School graduate?
MSNBC Web Jockey given too much control over content?
Me, You, here, "blogging" our opinions on an extremely popular web site?
Senile "anchor" person who looked sexy twenty years ago and hasn't written a news story in his/her life?
A perky Fox News Info-Babe?
An ex-SNL comedy writer hosting a radio show on an avowedly anti-right wing network?
The producer/writer for the ex-comedy writer's show?
Jon Stewart? Jon Stewart's producer?
Jayson Blair?
The guys who covered up for Jayson Blair?
Rush Limbaugh (currently billing himself as "America's Anchorman")?
The diligent, dutiful Editor-in-Chief of the local High School Newspaper?
Some guy from Al-Jazeera whose cousin is in Gitmo?
Armed Forces Radio?
It's 2005. "Journalism" means everything and everything. Define "journalist" for me and I'll tell ya whether his sources should be protected, laughed at, or locked up...
Well that's an easy question. Apple is right. Apple is always right! Now if it was Microsoft...
The funny thing is that if Apple prevails, then Microsoft will be right as well! If Apple wins, then you can bet that Microsoft and others will start leaning on other posters of leaked information. An Apple win could only have a chilling effect on arguably all of journalism. Even idle speculation that just happens to be right could be subject to legal action. Hmmm, to quote the Stooges, I'd better find myself a cheap lawyer! ;-)
To the making of books there is no end, so let's get started
eff = good
/. brain overload... can't decide... who to crack jokes at... need to read SCO article... fast!
apple = good
rights = good
hack a day
So this information was probably leaked in breach of an NDA... my question is to any lawyers out there, is it illegal for a newspaper (or whatever) to print information that has knowingly been obtained from someone in breach of an NDA?
Wait, wait, wait. The first amendment was included in the Constitution so that never would it be the case (as in England at the time), that journalists or publications would have their content censored or banned by the government for speaking ill of it, or its policy.
None of that is in question. Extend that to Apple. Apple is NOT suing so that the website gets shut down or their content restricted. Incorrect.
What IS happening, is Apple would like to know who the source of the information is, so that they can appropriately charge the person with breach of contract (which they ARE).
This has NOTHING AT ALL to do with the First Amendment, this has to do with legislation relating to journalists' sources. I'll admit freely that I don't know anything about legal precedent, BUT I can tell you that the case has NOTHING to do with the First Amendment.
--- What
It does not give you rights over another entity. If you signed a confidentiality agreement and violated it a company has the right to find out that you did. If someone else is making use of this information I feel the company has a right to compel them to reveal their source.
People do not readily understand the 1st, let alone the 2nd. The key thrust of the Consititution and Bill of Rights is to limit what the Government can do to us. It is not granting us rights it is protecting our rights.
As such it does not apply here.
* Winners compare their achievements to their goals, losers compare theirs to that of others.
Yes it is wrong that whoever is leaking this information is doing it. Yes, if caught they should be punished according to the law.
NO the press should not be forced to give up the name of said individual. If the press is forced to name names, then in the future people will be discouraged from going forward, and you would then never hear about the more important scandals, the kinds of things involving corruption, government, the environment, and the usbverting of laws.
Freedom of the press is one of the most important freedoms there is.Don't try to tak eit away to protect some company's bottom line.
Sometimes the Apple users need to remember that Apple is just a corporation. We tend to think of Apple as being "different", so folks tend to be appalled when Apple ACTS like a corporation. Face it, they are out to make a buck like everyone else.
Crushing my karma one post at a time.
For that reason, I'm siding with the EFF, et al. on this one. They are most definitely in the right here.
On another note, however, I will be interested to see how many Apple fanbois rush to the defense of their pet company despite the fact that if one replaced "Apple" with, say, "Microsoft," they would all be up in arms about it.
Many Bothans died to bring you this sig.
It's a box that plugs into firewire (aka 1394) and gives you XLR RCA and maybe SPDIF.
;-)
http://asteroid.co.uk/ is available too
http://www.appleinsider.com/article.php?id=756
echo -e 'global _start\n _start:\n mov eax, 2\n int 80h\n jmp _start' > a.asm; nasm a.asm -f elf; ld a.o -o a;
If Apple really want to find out who's leaking information from their company, then, when the next product is due to be announced, they should simply circulate slightly different specifications to different people in the company. From that you can trace where the leak came from. It's worked for intelligence agencies for centuries.
Better than the very grubby process of threatening journalists.
...now they're watchdogs of corporations and business interests.
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As I just mentioned before. Freedom of the Press, as defined by the Constitution, relates to the fact that the US government shall never restrict nor bar any article, based on content.
This case relates to the confidentiality between a journalist and his source. This has nothing to do with the First Amendment.
Please sit down. While I'm at it:
If you have trade secrets, you need to be very careful who you give them to, period. If a person you trust releases their secrets, its because you didn't do a good enough job of understanding that person.
Bullshit, I'm a partner in a small company, and when your company grows to larger than, say four people, this becomes impossible. Apple cannot simply "understand that person". Apple issues NDAs and whatever agreements they may to make sure that this legally does not happen.
Someone here is in clear and complete breach of agreement (as is dictated by the detail and clarity of the leaked information), obviously, you can see that is illegal. All Apple wants is for the website to tell them the source of the leak, so that they appropriately punish them.
--- What
Apple is talking to the ISP trying to get a copy of the emails sent. Most ISP user agreements specifically say that email is not confidential no matter how badly people want it to be. If these idiot reporters carried on non-encrypted conversations with their sources via email they deserve to be caught and found out. These poor fools will serve as an example or the poster children to make everyone use some kind of encryption in their communications.
The first Ammendment doesn't apply in this situation. Constitutional guarantees onyl apply to public forums and issues. Obtaining ostensibly confidential information and reporting it can only be reasonably defended under the first ammendment when the information is related to the public good.
In the case with Apple, as noted earlier, Apple has a right to maintain its trade secrets and can suffer significant harm in having those secrets revealed. The public is not served by revelations about Apple's secrets, and current laws protect Apple, not those doing the reporting.
The First Ammendment doesn't guarantee one's right to say anything, it merely guarantees the right to voice one's dissent with the government.
It's at least debatable whether or not knowledge of a product Apple is putting out is indeed a "trade secret" under the UTSA.
The UTSA defines trade secret as follows:
"Trade secret" means information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from no being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
You can kinda shoehorn the existence of some product into there, but it doesn't really fit.
And in any case, nobody ever changed a bad law without breaking it in some fashion. It's at least arguable that the UTSA is a bad law to begin with, if it was indeed broken in this particular circumstance.
- Give a man a fire and he's warm for a day, but set him on fire and he's warm for the rest of his life.
what will the fanboys say?
sulli
RTFJ.
This is interesting. In Sweden, the right to talk to journalists without fear of being revealed (meddelarskydd) is a part of the Constitution.
It is a criminal offense for a public employer, such as a police commissioner, to even ask who leaked information to the media.
This would be a total non-issue here. Trying to make a civil lawsuit go against a country's constitution... well, you get the point.
So I ask again:
how long are you U.S. folks just going to obediently turn around, bend over, and ask for more?
The rights issue involved is the right to privacy vs. the right to free speech. Privacy isn't explicitly written into the Constitution... preventing any laws related to inhibiting press is.
If the web site wins, how can anyone be punished for revealing any private information? Want your credit card number, email address, medical history, naked body available for public consumption? Holding that press is supreme over everything means putting everyone's everything for public consumption.
Apple wants to go through the very expensive legal process just to find a mole? Did no one at Apple go to high school? There's a far easier way:
Release incorrect information to several different people, and figure out which of that information goes to press. If it worked for High School Cheerleaders, it can work for a computer company. Oh wait.... I'm starting to see why it... doh!
Especially in this day and age, when cable news networks are a choice between crap and conservative crap, we really need to try to support internet journalism, in all its forms, to try to keep fair and balanced journalism's heart still beating.
nobody's perfect
Freedom of the press should give one the right to publish, not to avoid giving evidence that you or I would be required to give.
Perhaps a legal expert could tell us what view U.S. courts hold.
Do you really not appreciate the difference between revealing information clearly in the public interest (which is defended by freedom of the press, 1st amendment rights in the US, etc.) and revealing any old information even if it should reasonably hav ebeen known to be obtained via illegal means?
Freedom of the press is not an absolute, nor is there any sort of superlaw that gives you a right to protect sources who you know damn well have broken the law. With rights come responsibilities, always. In this case there is no over-riding public interest, and there is a legitimate reason to want to track down the sources who are breaking the law and violating the trust of the people whose NDA they signed. Protecting the source is perverting the course of justice, pure and simple, and should carry all the penalties usually associated with such behaviour whether the protector claims to be a journalist or not.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Why, but of course, it's both that we should protect and give rights to.
The trade secret's best protection is granularity of trade secret.
Freedom of Press's best protection is verification.
Some false information as a form of a marker will nail the violator(s).
The temporal argument is important; "which came first?"
So, Apple should win, because they where violated and the press is taking advantage of that.
I like news on Apple, but it's really dumb to think that it's the press' god given right to write about whatever they want.
Ask yourself this, "what if they begin publish medical journals?"
Secrets are, mostly, secrets for a reason.
They are hurting Apple, and they could hurt you too.
The problem is that journalists are often required to push up to and beyond the edges of the law, especially stupid laws. You offer military reporters as an example, but how about when they're reporting military misconduct? Perhaps given laws or military rules are in place to prevent them from reporting abuse of prisoners, rape, pillage, etc... but keep in mind that sometimes the laws themselves endanger the well-being of many in order to protect a few.
actually, no. they is not a Chilling effect on whistle blowers because whistle blowers have special protections under the law.
you are comparing a company killing thousands of people with their technology with a product announcement. are you drunk?
I am the Alpha and the Omega-3
Web journalists have been releasing information about future products from Apple. How in the heck could products, which will likely be bought by millions, be considered trade secrets?!
I'd sympathize with Apple if the web journalists were releasing proprietary schematics of the inner-workings of their products. But how can the product itself be a trade secret?!
A trade secret is defined as any information that allows a company to make money because it is not generally known. To put it another way, if the economic value of a piece of information relies on it being kept private, it could be a trade secret.
A product has NO value until it is offered for sale. Thus, Apple makes NO money off of these secret products until they are sold.
Apple seems to be under the impression that ANY secret can be a trade secret. But I don't see any legal justification for it.
If someone says he and his monkey have nothing to hide, they almost certainly do.
Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
/. , but I say Apples right to protect their trade secrets.
An unpopular view on a site like
The media in general and the press in particular seem to believe that they have a sacred right to what they call the "freedom" to print / publish anything which sells a story without naming sources or providing a means for those sources to be independently verified/validated.
This "right" can and usually does amount to the right to invade the privacy of private individuals and (in the UK at least) to avoid regulation through their own willfully toothless watchdog, the Press Complaints Commission.
I concede, however, that there may be a fine line between commercial/trade secrets and the (genuine) public interest, in which case I'd side with the media.
For instance, a credible source within a large financial institution leaking details of how much profit that institution has made by misselling financial products would, in my view, be in the public interest. The same source leaking details of the CEOs extra-marital affairs to a "gutter" daily, IMHO would not be in the public interest.
I'm no legal expert, but the courts have decided in the past that journalists don't have a right to protect their sources. This story just appeared a few minutes ago:
1 5&e=1&u=/nm/20050215/pl_nm/bush_leak_dc
http://story.news.yahoo.com/news?tmpl=story&cid=6
IN my area, a local television reporter was held in contempt and fined substantially for refusing to name a source, and the courts ruling was upheld on later appeal. A link to one of the stories on this:
http://www.turnto10.com/news/2925041/detail.html
Of course, it's a common tactic now for companies to go fishing with lawsuits -- as soon as they know the names of their leaks, they'll drop their lawsuits against the various web sites. Personally I view that as an abuse of the court system. The names of the sources are probably not important in Apple's case against the website, so why should the court demand that information?
Of course, this looks like Apple is harassing the journalists' E-Mail providers and not the journalists themselves so much. Showing once more that using encryption (And possibly anonymous remailer chains) for communications you want to remain private is usually a good idea.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Idiotic apologists for Apple do not seem to understand that Apple is simply trying to intimidate reporters & others from investigating & reporting about Apple. Just because Apple hasn't put out a press release doesn't mean it's not news, doesn't mean it can't be reported. A description of a soon-to-be released product is in no way a trade secret, and I hope Apple gets their hats handed to them in this case.
For far too long small web publishers have been intimidated by mega-corps lawyers. For far too long websites have removed perfectly allowable content in the face of a simple notice. For far too long information has been made inaccesible by gun-shy ISPs. For far too long documents have been deleted for fear of a meritless lawsuit. For far too long innovative manufacturers like Replay TV have been sued into bankruptcy for making legal devices but didn't secure the blessings of the megacorps.
When Apple's lawsuit is dismissed with prejudice, hopefully it will cause other megacorps to compete on merits instead of pounding the little guy with legal fees. I think Apple is a great company, I own their stock and I buy just about every Apple product out there. But they are wrong about this lawsuit, they are attempting to stifle the freedom of the press, and that's why I hope they lose.
The Apple apologists here seem to be of two minds on the issue of the 1st Amendment & the alleged illegal actions by Nick. The 1st Amendment protects our freedom of speech from government intrusion. It reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The important words are "no law." The California Trade Secrets statute clearly abridges the "freedom of speech, or of the press." The guy who leaked the trade secret is subject to contract law and any agreement he made with Apple; Nick made no such agreement with Apple. They have no basis to sue him for a violation of contract law. They can only sue him under this Trade Secrets statute, which is possibly unconstitutional. Even if the statute stands, Apple will likely need to prove probable cause that Nick encouraged the leaker to break his contract. Unless he paid him or blackmailed him and Nick knew the source was under NDA, I just don't see how that could be the case. For those of you certain of Nick's guilt because of his "Got Dirt?" link, I think you need to understand that requesting information is a long way from asking someone to break an NDA.
If Apple wins this case, expect many other companies to start suing journalists, bloggers and message board posters anytime a bad word is uttered about them. The bar will have been lowered, and our freedom of speech will be imperiled by all of corporate America. If Apple wins this case, we all lose
What would you prefer that we worship? This is a serious question, not a troll.
Almost always, rights of those with less money come in second place to those with money. Apple has big money, and loads of talent behind its historically recent attempt to become Microsoft, Release 2.0. What I find the most interesting is there are folks so discontent with Apple's 'vision' that they would leak this information in the first place, take some of the thunder and surprise out of the Mac Mini release-fest. Is it possible that Apple employees and family are tired of watching a mega billionaire like SJ's give lip service of thanks for the 70-90 hour work weeks? The vision is long gone, and the revolution is really evolution. Apple is simply duplicating what has proven to be successful, nothing special, just marketable.
--- Old Time NeXThead
Hey look, it's a rehash of the Valerie Plame case, except nowhere near as important!
What people always forget, just as the journalists who were threatened with jail forget, is that there is, legally, absolutely no inherent RIGHT for the press to keep sources secret, aside from a very small set of closely-defined situations. The legal basis for this is very sound; unless there is a significant issue of security, or there is a significant issue of gained public good, journalists should not, and cannot, hide behind status to avoid doing what everyone else would be forced to to. Should someone come up to me and leak specs to macgizmo5000, and I then told every single person I know and many that I don't, I would have no protection, because my source violated an NDA, and in order to find that, during discovery, they must FIND THE SOURCE TO BE SURE THAT THEY WERE SO BOUND. As a normal person, it wouldn't be a question, I would go to jail for failing to satisfy a subpeona. But the press has this mystical quality, apparently, that keeps problems like this away, according to them, at least.
The problem is that there is no great public good in allowing sources in cases such as this to be kept secret from the courts. There is a significant tort matter (breach of contract) that possibly hangs in the balance, and unless this person is a CIA mole trying to out spies among Apple's employees, there's probably not much of a national interest in keeping their identity hidden.
That leaves the intangible feeling that if sources were allowed to be outed in this fashion, no one would talk to reporters. The folly of this argument is that it assumes that claims such as this can be made about anything, ie, some facet of unclassified information is leaked by an official in the executive branch and the government can then bring a suit against the reporter and have them turn over the official, which has its own problems. While the chilling effect they describe would be a problem to a free press, the government would have no grounds to bring a suit against them unless they could demonstrate that there was some breach of contract regarding classified information or other sensitive information, which is always clearly demarked.
If journalists think they want a right to never have to reveal sources, than that is great for them. What they shouldn't do is pretend that they already HAVE that right, and then whine when it seems to be "taken away." If they want something like it, that's great. Go to jail, then. Make a statement about how our government is jailing journalists for "just doing their job." There's probably a decent chance they could get some sort of legislation codifying that right. But as of now, outside of a few narrow cases, it simply does not exist.
someone violated an NDA and Apple has legal right to sue them for damages of fire them.
someone from the outside "stealing" them
In this case apple has a right to pursue them for damages, coporate espionage and all that.
In both situations Apple has legal right and standing. This is not about Apple silencing the press it is about Apple enforcing NDAs or discovering where the source of the leak is.
This has nothing to do with the first amendment, it has nothing to do with silencing people for talking about trade secrets in order to keep them secrets. It has to do with discovery of who violated the law, since revealing there sources will most certainly result in legal action...
Would some kind lawyerly type please define what a "trade secret" is? To me, this seems kind of odd in that it was simply some marketing info on a new product that someone was tipped off on, not an internal process to produce something that Apple didn't want seeing the light of day.
What's the deal? I've seen "secret" photos and whatnot of covered cars on tracks before they come out.. seems that in other cases the manufacturer just keeps a tighter lid on it.
You're reading Slashdot. Of course you like Linux and pc hardware
A larger problem is the changing definition of "journalist". A lot of people (and almost everyone on /.) would agree that journalists have a right to protect their sources in the name of journalistic independence and integrity. But who exactly is a journalist? You're average blogger? A prominent commentator?
Recently the Government Accountibility Office (GAO) has started hearings into "newspeople" who were surreptitiously paid to promote government proposals. Armstrong Williams promoting the No Child Left Behind act and Maggie Gallagher for the Health and Marriage Initiative are two prominent examples. Williams claims he's a commentator and not a journalist, while Gallagher says she is a journalist but that she did not have a conflict of interest. And what about bloggers who do their own reporting? Many do not have any journalistic training and do not know (or care to know) the rules that guide reporters.
Traditionally, the law has differentiated the 1st Amendment needs of journalists and the average person because of the importance of journalistic independence. If you're reporting on trade secrets, how to your prove you're a real journalist and not some schmuck with an axe to grind?
Well, you know, if we don't like it we can always amend it. If there's some part you think is outdated, start up a movement for an amendment.
Warning: Apple/Nintendo fangirl. Likes her electronics cute & cuddly. May be rabid.
Just look at what happened to Dr. David Kelly for another example.
Kelly was cynically used by the BBC and Andrew Gilligan. They sucessfully made him into the issue to conceal the fact the ulterior motive behind spinning his word - namely to damage Blair.
I think there's a difference between using a source and misusing a source and then making him the fall guy for shoddy, dishonest journalism.
As you point out, there are times when it's legitimate to conceal sources and may be in the public interest to do so. The main problems come from when journalists hide behind this as an excuse to print whatever they want.
Agree 100%
The article is about EFF joining the Rumors Site to keep NDA-breachers secure. Do EFF really think it is OK to stole secrets?
Is the EFF's case here akin to any presumed (or proclaimed) bad examples at the ACLU?
I'm not saying anything about the ACLU here, just trying to ferret out a thread.
Click
They would have all the reasons to go for the sources if they KNEW that the source HAS breached the contract. Since they DO NOT know that FOR SURE and cannot prove it before the court, they cannot prove that there have been a breach of contract, in what case, the journalist would have been more or less obligated to cooperate.
;)) and becomes a crime. That's all.
:P
Since the chances are just the 50%/50% that this still could be some pass-by watcher or visitor to the plant where it saw too much - the journalist has it's rights to remain silent.
Once Apple proves that there have been a breach of contract, then it leaves the territory of First whatever how you call it there (and generally don't care about it too
IANAL, etc.
If a "journalist" has the right to publish information he knows was either illegally obtained or violates the expected privacy of others (including corporations), then where is the integrity in this so-called journalism? Unless the information reports illegal or unethical activities, their reporting is tantamount to slander, libel, or just plain gossip.
So, if somebody leaks private information to a news source and then it's broadcast over some medium, then the "news" is nothing more than an amplifyer for illegal and/or unethical activity.
Protecting the unethical person who leaked information that was expected and agreed upon to remain private is a chicken shit excuse for selling gossip and calling it journalism. There is no integrity in that.
I might know what I'm talkin' about, but then again, this is Slashdot...
It's simple really. If you have signed an NDA then your "free spech" / journalistic rights are nil / nada for that item. If a journalist is dumb enough to sign such a thing and then write about it... well shame on them and sue their butt or whatever. OTOH if they got the information from another source who has singed an NDA. Well to bad, the journalist should not be required to reveal sources.
My karma is not a Chameleon.
Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?
Well, in the investigation over the Valerie Plame leak, the U.S. appeals court said today "There is no First Amendment privilege protecting the evidence sought."
In others words, journalistic source "protection" is subject to the law. It may very well be that Apple's right to protect its trade secrets is more important. It'll be up the courts to decide.
Excellent points, amigo. The rights to free speech do not include spreading gossip or violating the expected privacy of others--others includes corporations. Publishing that information is irresponsible, unethical, and devoid of any integrity.
Journalists who publish "leaked" private information are not and should not be protected under the First Amendment--unless they are blowing the whistle on illegal activities.
What if it was YOUR privacy that was violated? Readers here seem to think that spyware is the baneful scourge of the 'net. So is reading others' private information is fair game?
I might know what I'm talkin' about, but then again, this is Slashdot...
Apple first should show that these are trade secrets and that NDAs were involved. If so, it becomes the right of the courts to subpoena the journalists to reveal the sources because the sources are committing crimes, and the journalist is an accessory to that crime. Once this is a criminal matter then there is no question about "rights" of journalists since the right to free speech doesn't include the right to stealing trade secrets and violating contracts.
On the other hand, if these things aren't trade secrets and people aren't bound by NDAs, then there is no crime, and no issue.
This could be just a smart janitor who was missed when all the important people were signing NDA's, but still walks around their desks. In example.
The question is NOT a First Amendment issue. There is no 1st Amendment right to protecting a source. There are at least several issues that will come up:
1. Under UTSA, did thinksecret.com "***knowingly***" exposing information obtained from sources bound by confidentiality agreements? That is a state of mind question and a question about how the information was obtained (anonymously or did they know the source or was it overheard at the Starbucks at Stevens Creek Blvd in Cupertino).
2. There is no bar to publication of it, but there is a law against violating an TS agreement and *knowingly* publishing it.
3. Suppose I had a security clearance and I said to Jane's, "Hey, the US has a new submarine that goes 600 mph, knowing it to be true." Is that protected?
Yes, there is a chilling effect, but (while I disagree, it is the law), a majority democratic appointed Supreme Court has stated 1st Amendment protection for "commercial" speech is less than that for non-commercial (e.g. political) speech.
The questions are:
1st Amendment protection for commercial speech vs legal protection for for commercial secrets. What trumps? Obviously if it came down (and I was the judge) to a UTSA vs 1st Amendment question the Constitution wins - even though since the 1930s it hasn't always done so. But hey, that is the price you pay for big government - ignore the constitution in one case and everyone loses liberty.
If it's too difficult for journalists to protect sources in an investigative piece, you lose investigative journalism.
If it's easier to get paid by greasing the palms of industry or government than to expose their shady double-dealing, what do you expect of journalism?
The media in the West is in imminent danger of losing the faith of the populace because of this.
insecurity asks the wrong question irritation gives the wrong answer
Only when I drink.
In giving my example I used an extream to illustraight my point- that with NDAs and Trade Scerects, a company can abuse the court system to control what information is disclosed.
If Apple Computer is successful with forcing the ISPs in turning over email records, other companies will use that case law in their briefs to gather information about their leaks, which may not be nearly as innocent as Apple's case.
Whistle Blowers only get that protection under the law when it is given to the government, not the press. The press is there to pressure the government into acting.
III.IIVIVIXIIVIVIIIVVIIIIXVIIIXIIIIIIIIVIIIIVVIII
There are tons of so called magazines and journals out there which are either openly run by companies like Microsoft or so reliant on their dollars as to make no difference and clearly those sponsors make critical editorial decisions. What if one of those publications goes out and finds crucial information about a competitor and then hides behind the 1st Ammendment? It would make the entire industry captive to the journalistic equivalent of diplomatic immunity.
Then it certainly merits a serious answer. I would prefer you not to worship anything, but to consider cases like this on their merits. Consider the general principles, but also think about the implications of those principles in the specific case, particularly where there are apparent conflicts between two ideas that each have some merit in isolation.
In this case, please consider the following. The law as it stands today would clearly condemn someone violating a NDA to which they agreed prior to being told a trade secret. Thus the law takes the position that allowing the enforcement of NDAs is in the interests of society.
However, if this case is successfully defended then the law provides no sanction against someone taking advantage of information that they could reasonably expect was obtained through illegal means. Now the law is taking the position that it's not important to protect that information in the first place. The two positions are inherently contradictory.
Moreover, the second position supports knowing violation of the intended protections of the law, as long as you get someone else to do your dirty work for you. It places anyone with sufficient isolation above the law, no matter that they might ultimately be the cause of any damage and/or be the only one capable of offering adequate compensation to the damaged party. Surely this is a dangerous idea.
In other words, if we accept that it is right to permit a freedom of the press style defence in this case, we have undermined the whole point of NDAs, and should remove any legal support for such agreements in the first place. Conversely, if we believe that NDAs have merit and should be given legal weight, we cannot logically accept a freedom of the press style defence here.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
The EFF also supports websites like: www.itunesisbogus.com - so this is no surprise.
... one doesn't necessarily have to pay someone $$ to bribe them. Anonymous ego boosting notariety is also payment to some.
I hate it when comments like this are made without a clue as to the real reasons Apple is seeing this a necessary step:
As long as Think Secret is not bribing or blackmailing people there should be no problem.
Extend the list of offenses that you think Apple has merit in this case to: solicitation.
Think Secret - apart from ALL OTHER rumor sites - specifically solicits information through a phone number. Therefore, enticing people to call.
What many of you are confused about on the bribery part is
Think Secret was inarguably one of the most hits websites around MacWorld Expo. In fact - it even broke the top 25 according Netcraft on 2 days.
Do you not think the people that gave the information to Nick Ciarelli were proud? Do you not think some of them felt important? Do you not think some of them are reading boards like this right now - revelling in the fact that we are discussing the very information they dealt out illegally - making them feel even more important???
I have brought this point up sveral times as well - I'm not sure if Think Secret/Nick Ciarelli are entirely all good intentions. It has always bothered me that they seem to be the first one with breaking news about the reseller lawsuits. These suits are completely without merit and come from two of the WORST resellers to ever hock Apple products or services EVER! (There's plenty of proof online - such as http://www.omino.com/~dom/readme/tomsantos.html)
Think Secret is no different than an underage porn site. It is illegal to publish it, yet there are plenty who are curious to see it.
One person had this to say on my website:
"...Think Secret (in achieving a degree of accuracy that can only be a result of people breaking their NDAs) becomes analogous to the old Head Shops, that sold drug paraphernalia. Nothing they actually sold was, strictly speaking, illegal. But the only uses for most of their products WERE illegal. And so Head Shops were made illegal, too."
And as a note, can we stop using similie and metaphor here - these are NOT - trade secrets - they are business plans, they are actual schematics, they are property. Some of us are trying to take meaning out of the words trade secrets like it's just a few words. This actual documentation that people hold that is privately OWNED information important to a business's success vs it's competitors.
FROM THIS POINT ON - you can be assured that rumor sites will be getting VERY close looks from the competition. In fact, I would be amazed if Creative didn't have a special position at the company now to find out future iPod information so they can beat Apple to market.
Yell & scream & rant & rave... it's no use... you need a shaaaave ~ Bugs Bunny
A journalist should be allowed to publicise any information he can get hold of, if the military don't want him to reveal their location they should arrange an NDA.
It's even a good journalistsw duty to break laws sometimes when neccescary.
The police that don't want the information about the investigatin of a crime shouldn't reveal the information, that's how it works and how it should work.
As mentioned in another post, if journalists have to be acountable for anything they write(that isn't abuse of their role, like algined information) how can they do their job properly?
Our whole democracy stands, and falls, on the free information, how are you supposed to be able to do an educated choice, if your information are controlled by the government?
Of course, the press can retaliate. Just ignore all Apple press releases for a year.
I have no definitive answer as to what the Bill of Rights meant by the term "press," but I'm happy to take an educated guess.
At the time of the United States's founding, the journalistic landscape wasn't what we've had for most of the 19th and all of the 20th century: namely, media dominated by major newspapers. There were many, many individual owners of printing presses.
These printers (and Benjamin Franklin was one) handled the various printing needs of their towns. They also usually printed newsletters relating local events, political issues, weather forecasts, farming tips, and so forth. In addition to these newsletters, they printed political pamphlets, including Common Sense and the Federalist Papers.
The situation then was much closer to the blogs, e-mail newsletters, and Web forums we have today.
I think, from a constitutional standpoint, you could definitely argue that blogs -- and other Internet goodness -- are in no way second-class journalistic entitites, but instead have the same rights afforded to the New York Times, et. al. They are the modern versions of the Colonial and Revolutionary press.
quiquid id est, timeo puellas et oscula dantes.
It is interesting to note that this closely related AP article appeared this very morning:
Appeals Court Upholds Ruling in CIA LeakWhile not being an expert, I do recall from my law classes (particularly business law) that if, by enforcing one law, you break another then the original law is not enforceable (not always). So if the source broke his contract (revealing trade secrets), then his right to privacy with the free press is not valid as they are protecting someone who broke the contract - which is a legal document.
I also think it would make sense. He signed NDA's (probably) and as such should have honored those instead of selling-out.
I mod down so you can mod up. Your welcome.
Kelly was cynically used by the BBC and Andrew Gilligan. They sucessfully made him into the issue to conceal the fact the ulterior motive behind spinning his word - namely to damage Blair.
Or maybe, Blair and his cronies hung him out to dry to deflect from their troubles. Kelly's interview, recently aired on the BBC certainly doesn't tie up with Blair's spin. BBC News
Indeed, it may simply come down to the integrity of the journalist.
One journalist reveals the confidential sources of another journalist? If journalists have a right to keep secrets is it a rights violation to reveal a journaists secrets? Do only journalist have right to keep secrets? It's no secret, this confuses me.
It took a real world war to end the airplane's patent wars. - Fâché Rouge -
Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?
Would this really have been a question for slashdotters if the concerned party was someone other than Apple? I suppose only Apple's "trade secrets" are valuable enough to "protect".
Under our law, this seems pretty simple.
The reporter cannot and should not be punished for reporting what he found out. He is completely protected under freedom of the press. And, look, that isn't what's happening. He isn't being sued for publishing the material at all.
However, whoever gave him this information broke the law. That makes the reporter a potential witness, who should have to give his knowledge. If you see someone rob a store, you're obligated to say that you saw them rob a store, whether you want to or not.
If you want to break contract, fine, that's your decision and the press can report on it all they want. However, nothing in the constitution says you get to be free from the consequences of your actions, or that anyone else has the right to hide you from the law.
I don't see what the problem is. If you disagree with a law, break it all you want, but that doesn't exempt you from the consequences of doing so, even if you consider yourself to be in the right. That's the part of civil disobedience everyone seems to forget.
Tell that to the tobacco companies.
I am the Alpha and the Omega-3
okay - it was wrong for this information to get out - you have to respect companies privacy in these matters. But apple should take care of this inside their doors - not by trying to go against the constitution in the name of intellectual property.
People, before all the rabid anti-Apple fanboyz start harping on mean, evil, ennemy Apple, you should think about what happened here: basically, that someone defused Apple's planned surprise announcement, that someone lessened the mediatic impact of what would have been a mediatic bomb.
/. crowd, they just don't know that there is life besides Micro$oft. For them, there is only HotMail, MSN, Word+Excel and so forth. Most of you guys around here don't beleive me, so I tell you: go outside in the "big blue room" and talk to people. You'll be scared by what you find. I know I was when it sunk in last year. How could this be possible, if *I* hear of it, everyone should have know about it, no? (Not really.)
So Apple wanted to make a big splash, a big enough one to get noticed by the unwashed masses. Why, you ask? Don't everyone know about Apple? What's the problem?
The problem is that everything, everyone that is not Micro$oft has a big problem with understanding and awareness. Especially awareness. People that should know better (engineers, technical managers, etc.) don't even know about FireFox, Mozilla, Opera and other alternatives to MSIE. Really. Nor do they know about OpenOffice. If we are lucky, they barely remember WordPerfect. And they don't know about Apple Computer. Your average people is not the average
Though, right now, there seems to be two exceptions to this: Sony's Playstation (there is more than just the X-Box for gaming consoles)... and Apple's iPod. Because of its wildly successful portable media player, Apple is seeing people going to its website and discovering that they make computers, too. But the raising awareness of the fact that Apple also makes computers is not widespread. It is still a minority that knows about it.
(Again, it is also a small minority that knows that there are other browsers than MSIE... or media players other than WMP.)
So, how could Apple go beyond a minority of the techno-cogniscenti (sp?) and reach the masses?
The proverbial six o'clock news.
And how to get on said mass media, non-technical news? Make a surprise announcement, something big. Really big.
And this applies to more than just Apple. The Mozilla foundation and the rest of the Free Software movement could use more media exposure. And no, Wired does not cut it.
But if some irresponsible website operator leaks the news and limits its impact to the tech news sites, the surprise effect will be muted enough not to make it to the average, non-technical mass media.
I like rumours like the next guy, and I don't mind the occasional leak. But what ThinkSecret did was downright irresponsible, they did not care of the big picture, they only thought of how many pagehits they could get. They could have simply said "Apple will introduce a lower cost Mac" and essentially leave it at that.
For what they did, I'm sort of feeling that they should be nailed to the wall, because they helped Micro$oft more than helped Apple, IMO.
What constitutes a "journalist"?
This question can also be posed as "What constitutes a member of the Press?" I'm guessing that the framers of the 1st Amendement knew very well that the then contemporary Press was not a simple affair. Toward the end of the 18th century, printing anything even using a hand press involved massive expense. As a result, any member of the Press likely was part of a larger ensemble of humans, machines, and institutions committed to reaching an audience commonly referred as "the public sphere."
The massive expense and significant size of these apparatuses provided a kind of check. Today that check no longer exists; reaching an audience of millions is near-to-free at the beginning of the twenty-first century. Access to web publishing enables almost anyone with access to a computer (or a cell phone) to reach many people at once.
My own idiosyncratic answer to your question is that anyone can be a journalist if by journalist you mean someone who distributes information (regardless of accuracy) to a public audience (regardless of size). Bloggers? They're journalists. Editor of your high school newspaper? Yep, journalist, too. Spouse or partner who tacks up a grocery list on the family fridge? No, not public enough.
Admittedly, this is a fast and dirty, and somewhat clumsy, construal of the relationship between the terms journalism, Press, and public. My main point is that once the cost of gaining access to "the Press" becomes cheap enough, elites will try to limit the protections afforded to members of the Press by questioning who can legitimately claim membership within that guild.
(This is not meant to imply that the parent's author is interested in regaining such restrictions, though such may be the case.)
blog
California, Massachessets (where the editor is in school), and most other states have each passed similar laws which specifically prohibit individuals from disseminating or unfairly using trade secrets. The california statute is titled the "Uniform Trade Secrets Act" (a.k.a UTSA). Under that statute the editor of Think secret appears guilty of the act of "misapropriation of a trade secret" under the definition (b)(2)(B)(ii).
The editor of Think Secret published confidential information, and clearly knew that the information was covered under NDA. His prior published statements reveal this general knowledge, and he had been contacted repeatedly by Apple lawyers asking him to remove infringing information and desist from future similar activities. He appears to have no viable defense against charges under the UTSA.
The remedies for the complainant for such misappropriation include, both damages and injunctions. Monetary damages may be levied based on losses (or potential losses) of the complainant, enrichment of the defendant (e.g. ad revenue or donations from the web site), exemplary punitive damages not to exceed twice the two kinds of damage mentioned above.
Injunctive relief takes 3 forms. The defendant may be enjoined from further use or dissemination of the information. The defendant may be forced to pay a royalty for use of the information. Finally, the plaintiff may request unspecified injunctive relief at the discretion of the court.
(c) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
So, it appear that the defendant's alleged acts are clearly in violation of this statute, and he has misappropriated a trade secret as defined by the law. The defendant repeatedly ignored requests to desist from such activities. The monetary relief afforded by the law is inconsequential in this case. Thus Apple's goal is to seek injunctive relief. The first two forms of relief (enjoining them from further use of this specific information, or charging them royalties for its past use) are each irrelevant here: this specific cat is out of the bag, and no reasonable royalty will remedy this breach. Thus, they seek injunctive relief to compel the defendant to reveal his sources, so that they can sue the one who revealed the information to the editor and/or prevent further breach of contract.
Suing the Think Secret editor is clearly the only way to either sue the original offender for relief or ensure that they refrain from future illegal activities.
Claims that Apple is bullying the defendant or overstepping their legal rights appear poorly founded. They are defending their right under the law in the only way available to them. It is up to the judge to determine whether to compel the defendant's cooperation or not.
Is it clear that the public good is truly served by letting the defendant protect his source in this case? The states in which the corporation is based, the state in which the leak originated, and the state in which the defendant lives and works each have similar laws which specifically prohibit the defendants alleged activities. Each version of the law (UTSA) specifically allow the plaintiff to seek injunctive relief to both punish the offender and limit future damage of the plaintiff's interests.
The case is of interest because there is generally a clear public good in free speech and wide dissemination of information. At issue is whether judgments under the UTSA will erode journalistic integrity, or be used by corpo
Or maybe, Blair and his cronies hung him out to dry to deflect from their troubles. Kelly's interview, recently aired on the BBC certainly doesn't tie up with Blair's spin.
;)
Maybe. Then again, maybe not. The whole thing is now so obfuscated (in part due to the way the media covered it) that we'll probably never know the whole truth.
re: The Beeb link: Indeed. But isn't this just (another example of) the BBC continuing to argue its case in the court of public opinion long after the actual event?
I've lost all faith in the BBC clain of unbiased news reportage. Yes, the UK Government tries to meddle with and manipulate the corporation - as have all previous UK governments. However that's no justification for an anti-government editorial policy in an organisation which is supposed to be unbiased.
Then again, I may need a tinfoil hat!
Thanks fname! I had two points I wanted to make, and you just made one of them, perfectly. (mod parent up)
I would also like to point out that Apple is the only company I can think of that likes to save about 95% of its announcements until the big tradeshow so that the guy in the black turtleneck can reveal it to standing ovations. While it's a romantic thought, it's just unrealistic!
Apple is a multi-billion dollar company whose products are known to influence technology. In the weeks leading up to a Jobs keynote, everybody wants to know what they're going to announce! And surprise - Jobs will announce a few innovative or tantalizing products, and they're almost all shipping today.
Apple used to succeed at this most of the time. The Power Mac G4, PowerBook G4, and Aqua come to mind as recent "big surprise" keynote stand-outs.
But they can't expect this to work all the time. In fact they have to realize that as they continue to grow at this phenomenal pace, the world is watching Apple, and this childish game of "no product announcements" becomes increasingly unrealistic.
In fact, it's frustrating for people who use their "pro" software (I use Logic), because unlike software from other vendors, users of FCP, Logic etc have no idea of whether Apple is even aware whether the bugs and problems we must deal with every day, let alone whether there is a fix. Apple will just implement some new feature that wows people at tradeshows which causes us to completely rethink our workflows.
Nokia and Motorola announce groundbreaking cell phones long before they hit the market. Car manufacturers show off their concept cars and announce features appearing on next year's model all the time. Microsoft tells us what we can expect in Longhorn... blah blah blah I could go on.
My point? Apple can keep suing all the people they want and the only people who will win are the lawyers. If Apple wins this lawsuit, contact me and I'll host ThinkSecret in Canada, eh?
Peace
Uh, he didn't say he did. Are you too lazy to read his entire post? It's only two lines long, geez:
OTOH if they got the information from another source who has singed an NDA. Well to bad, the journalist should not be required to reveal sources.
How can you have a trade secret when everyone knows about it?
My karma is not a Chameleon.
Well your situation has a big hole.. no pun intended.
So the company drills a very deep hole into the ground and dumps a toxic slury down it.
Whether or not the process works at this point is moot. They've just dumped without a permit and are in violation of many laws. Your NDA cannot legally force you to withhold disclosure of illegal activities, and depending on your position within the company and the existing permits in effect (if any), you may be legally obligated to report the violation.
Whistleblower laws protect people who come out and disclose illegal activities. Whistleblower laws do not protect people who disclose internal company information when no laws have been broken. I'm not sure why your post was modded up.
The elected government and/or the courts.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Exactly. The founders of the US knew what they were doing, they knew that powerful special interest groups and politicians would want to change things for their own short term interest, so they made certain rights inviolable.
[Set Cain on fire and steal his lute.]
Duplication is the mother of all invention, and cliche or not apple is doing not much else than marketing better. They didn't invent the mp3 player, just slapped it with a proprietary encoding scheme. I have been to 1 infinite loop, worked for NeXT in the 90s and Apple during the transition. What I believe you may have missed is that Apple isn't doing anything magical, they are simply marketing rather dated ideas with color schemes that seem to be pleasing and sell. Apple is indeed a great company to work for, but as someone that has worked for SJ in the early to mid 80s, again in the 90s, there is no way you can tell the world I have not seen it. No question, people are tired of it, the thunder of innovation is gone, the collective hands of a money making machine is in full swing. Some folks may not buy into the lip service any more, and that is why I am not surprised such attempts to squelch leaks is occuring. This all should not be a big surprise, with cult comes cult of personality, and disinfranchised followers.
--- Old Time NeXThead
What your describing would be THE criminal act thus news, in Apples case the journalist IS the criminal act, in disclosing stolen info about products that potentially could affect Apples sales. If Nick had reported that they where beating slaves to make the Mac minis that would be different. But no he reported that a source in Apple told him all of their new products (something even the Apple Store sales people cant even do, my friend cant even hint to me minor price changes) and he went and posted it weeks before they came out.
Like I said elsewhere I know full well as a former EiC of a newspaper what Nick did was wrong, but Journalists these days will spin anything for the pursuit of the story. If Nick had been a reporter under my watch he would have been fired.
"Slashdot, where telling the truth is overrated but lying is insightful."
At the risk of sounding like a Mac fan-boy, I'm going to lay this one on the table. As I see it, ThinkSecret.com is clearly not acting with journalistic integrity in that they gain their content by coercing informants who are not at liberty to reveal the information they have. While this does not absolve the informant of responsibility (they should be found out and included in the lawsuit), it does change the issue at hand. The issue is then not the first amendment rights of ThinkSecret.com, which would be the only purpose of the EFF getting involved, but whether they were acting in accordance with the law, which they clearly were not. As such, I can see this only as a PR move on the part of the EFF, and a questionable one at that.
Perhaps they are more intimately aware of the issues of this case (I would hope so, and they are lawyers, which I am not), but it makes me question whether they are knowingly wasting their resources (resources myself amongst others have donated towards) for the sake of increasing their exposure via a high-profile case. If this is so, I can understand that it may be a calculated risk that they feel will pay off in the end, but I have to wonder, at what cost?
putfwd.com - 1GB Free file storage with a twist
Sharing trade secrets is only illegal if you've signed a contract saying you won't. An NDA is a well accepted and legal contract, and so there's a system in place to help enforce them, and to punish people who violate them.
If my company was taking inadequate safety precautions on their oil tankers, and they decided to keep it secret by making all their employees sign an NDA, I think anyone reasonable could see that a contract like that should be null and void. If you told someone about it, good luck to that company trying to sue you for breaking an NDA like that.
One time I threw a brick at a duck.
Your example exposes a potential harm, and might prevent people from getting hurt.
Apple's secrets were not at odds with people's welfare.
This is not difficult.
If I am running an offshore oil company, and the way I keep my prices so low is that I maintain totally inadequate saftey percautions for my ocean liners, isn't that a trade secret? So, the media should not be allowed to report that?
You're confusing a layperson's definition with a legal definition.
And also ignoring the existing legal protections for "Whistleblowers".
Don't become a regular here -- you will become retarded.
Difference, is, the inadequate safety precautions are illegal. The specifications on an up comming computer are not.
T Money
World Domination with a plastic spoon since 1984
Neither the BBC piece nor any of the comments I've seen indicate why the EFF is getting involved in what seems like a pretty simple trade secret case. So I went to the EFF and found out the real reason:
After initially threatening to subpoena reporters directly, Apple sent subpoenas to Nfox.com, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find out who told the journalist about an upcoming product code-named "Asteroid."
"Rather than confronting the issue of reporter's privilege head-on, Apple is going to this journalist's ISP for his emails," said EFF Staff Attorney Kurt Opsahl.
In its request for the protective order, EFF points out that reporter's privileges protect the anonymity of sources regardless of whether third parties hold a journalist's records.
Aha! Now that is something a bit different, and I'm glad the EFF isn't (as the story comment implies) saying that trade secrets shouldn't be protected, because that would stupid. Apple isn't wrong for protecting it's trade secrets, but I would agree that this "innovative" approach isn't fair.
Don't become a regular here -- you will become retarded.
Yet you are willing to put quite a bit of effort into your arguments which presume guilt. Why?
Remind me not to vote for you if you run for judge. Until people like you are in power, we presume the innocence of suspects until proven guilty. [tt]
Idle speculation is not a proven track record of nearly perfect guesses while soliciting tips from insider sources.
T Money
World Domination with a plastic spoon since 1984
"Sites like [ThinkSecret.com] are beneficial because they inspire interest in the products." It's free f'king advertising!
Diseases like cancer are good because they inspire interest in medicine! Disasters like tsunamis are good because they inspire interest in construction! Famines are good because they inspire interest in food! Wars are good because they inspire interest in guns!
Unless it's got some literal "Trade Secret" such as "this is how we made the processors 20% faster", it's not a trade secret, it's just information that they didn't want us to have at this present time.
You have no idea what a trade secret is, do you? You're implying that there is some difference, but you're just conveniently making it up.
I frankly just don't care whether or not their precious product release information was released early or not.
Maybe you don't, but their competitors do, and they do.
Don't become a regular here -- you will become retarded.
Your assumptions are invalid. You don't know WHERE the rumors (and they were reported not as fact, but rumor) came from.
It is true that I don't know. That, however, is immaterial. The question is did Nick know, or have a reasonable suspicion to believe that is where they came from. (legally speaking)
But your assumptions lead me to suspect that you are Steve Jobs or (more likely) an Apple lawyer.
You are correct on both counts. I am Steve Jobs, and I have been taking law classes at night to prepare for my lawsuit against Apple Records.
But this leads to unintended consequences. You are basically saying that any contract between a person and a non-person should be null and void. But that means warrantees, service agreements, basically all contractual instruments which are designed to protect the consumer are also null and void.
You can't have it both ways. Either corporations may enter into legally binding contracts, or they may not. I personally prefer a system where I can legally force a company to do something by contract, but hey, if you want the Wild West, good for you... I guess.
Necessity is not the mother for apple's invention, as they have invented nothing, as per one of my points already. Pirates, sure, we won't go there together. Apple provides a better experience than M$haft, sure do for various things, however most Windows enthusiasts would argue otherwise (ever wonder why?)., What, you don't hug trees, metaphorically or otherwise? Apple being a creative force changing to a money grubbing system of incremental change is what I'm talking about, trees aside. Apple is nothing but a rehash of tech, its pretty simple and should not come as a shock to anyone, it has been that way for 10+ years. I use OS X regularly, and enjoy it more than M$, BeOS and/or Linux or QNX. Like it or not, Apple may be the 'best' of the worst, moving towards a common ground of mediocrity like M$.
--- Old Time NeXThead
The original point was clear, that it should not be a surprise to people that Apple is going after folks legally, much like M$ does at this point in their existance. IP, whatever kind, is to be protected, and innovation doesn't need it for you are really moving forward, not sitting on your butt enjoy the repeat or resale of same said tech created yesterday. Your argument is a tough sell to me, simply cause pushing USB or BT or FW, one of which I use, the rest are meaningless to me on a daily basis. But then again, did Apple really create or just sell USB, BT and FW? Apple doesn't do much in the creation business, look at their model, they do a lot of packaging, reselling and marketing. hardware, please. Software, double please. Sad as it is, even Apple's first commercial success software was applesoft basic (not integer that was on ROM with hardware), and that was written by, oh my goodness, MS. Its kinda like calling the kettle black from the pot. This behaviour of Apple's and SJ is expected, and typical of a company stuggling to become a player, sad as that is... I personally liken it a bit to the SCO proceedings (as far fetched as that may seem).
--- Old Time NeXThead
Why are you replying to me? I did not use the word "protest" once in my entire post. Nor do I see the relevance of your response.
- Give a man a fire and he's warm for a day, but set him on fire and he's warm for the rest of his life.
...would an argument fly that journalists protecting employees violating their NDAs and journalists protecting whistleblowers are equivalent behaviors.
An employee violating their NDA is potentially disseminating trade secrets, and is potentially harming the company. A whistleblower is disseminating illegal actions performed by a company. Can illegal actions also be trade secrets (i.e. can a whistleblower be an employee violating their NDA)? Of course! IANAL, but I believe one can not, legally, profit from illegal actions.
As far as I know,
and
Information wanting to be free seems to be a mantra around here, but how can anyone advocate that
is equivalent to
but hey, if you want the Wild West, good for you... I guess.
don't put words in my mouth, it is becomming an extremely annoying practice amongst slashdotters, and just about everyone else for that matter.
What I really want is for people to be the masters and corporations to be the slaves. The exact opposite of what we have now. Obviously this is not meant to be taken literally but what it basically boils down to is that coproprations will only be alowed to do whatever is best for the customer. Also obviously only reasonable/possible requests would be allowed, for example a person couldn't ask for a toaster that will last forever since that is impossible, etc.
On the other hand, bullshit like NDAs, monoplies, trade secrets, and such will NOT be allowed. Only people will be allowed to have patents, and copyrights which they may choose to rent to corporations for a fee. Trademarks will only be enforced if a company in the same industry uses the same name, and in such a case the younger company will be forced to change it.
Warranties and other such contracts will also be allowed since they benefit the customer.
Basically corporations will be kept on a very short leash at all times. It's the kind of "tyranny" I would support in a heartbeat. Because after all, Corporations aren't people in any sense of the word.
You keep using these extremely vague terms. Things which are "reasonable" and "possible." Stuff that "benefits the customer." I think you'll have a very hard time making those concepts precise.
Weasels will find a way to package the most ridiculous bullshit and make it look like it "benefits the customer." You're going to need very specific laws which clearly spell out what is and is not allowed. Even then, it isn't going to change anything.
Corporations are made up of people. The suckitude doesn't just arise spontaneously. If you outlaw corporations people will just find different ways to be assholes. At least a corporation is a legal entity which can be targetted by a lawsuit.
...spending all this money trying to find the leak internally than sueing journalists.
"No sane man will dance." -- Marcus Tullius Cicero
This isn't a law book, it's a comment on slashdot. Obviously the actual laws would be written in much more than 2 minutes, which is about how long it took me to write that comment. I used vague terms to speed up this comment which wouldn't even be considered as a rough draft for actual law. It was purely meant to give you the basic idea beheind it, and nothing more.
Furthermore, sure you can sue corporations, but since corporations aren't people... no one really gets PUNISHED when that happens. The CEOs still recieve the same outrageous salary unless you somehow managed to drain the companies bank account with your lawsuit.
No, people need to be PUNISHED for being assholes not barely annoyed.
This is the problem with corporations that so few are able to grasp, the bullshit they pull isn't because they are composed of people, it is because it isn't a person and thus can't be held responsible like people can. Thus whatever people are inside the company feel they can do whatever they want via the company and screw everyone else without fear of real punishment.
"Is it journalism and free speech when you violate laws to obtain information?"
Yes, it is.
If it weren't, and "if you can't see that it's wrong, legally and ethically, for these people to be leaking this information, then, well, we have nothing further to discuss." makes me doubt we have any further to discuss (dixit yourself).
While it may (or may not) be ethically wrong in this particular case, people leaking information, even when breaking NDA or laws, are not 'ethically wrong' per sé. In fact, some of those deserve our outmost respect and show an ethical behaviour that can only be applauded.
If journalists or other third parties can be sued because they are "exposing information knowingly obtained from sources bound by confidentiality agreements", then basically, you undermine their sources, and whistleblowers don't get a chance.
I mean, fuck, what is wrong with you USA dudes? Around here, we're actually making new laws to strengthen the confidentiality of journalists and their sources. The fact you seem to think it's something that is only normal and just these crappy laws exist and are a good thing, ethical or otherwise, shows how far it has come. If this really would become law in europe, then you can bet on it every company will use that 'non-disclosure' law to shut-up any potential whistleblowers. I doubt society is better served by that, which is, ultimately, a much better argument for not abiding (or even creating) those laws, then a company protecting its trademarks.
--- "To pee or not to pee, that is the question." ---
At least in my jurisdiction. I think there has been passed a similar law on EU level too, but it states that the doctor-patient/lawyer-client privilage can only be violated if their is an clear and imminent life-threatening danger to a third person.
It is NOT simply to 'hurt' someone, let alone a company. If that would become law, everyone could claim he (or his corporation) got hurt in some way or another, effectively eliminating any confidentiality of that order.
"The only problem is that someone breaking a trade secret and giving it to a journalists never has a right to anonymity in this case."
I disagree. Maybe in your country (probably the USA), but here, the sources of journalists HAVE a right of anonimity, whether the source itself has broken a law or agreement or not.
--- "To pee or not to pee, that is the question." ---
After years of inaction on my part, earlier this year I finally decided to make a donation to the EFF, because I agree with their position in virtually every case they take up.
:-)
This is another such case.
If you like what you see, whether in this case or in other cases, then throw some money at them to keep up the good work! Besides, you can even take the donation as a tax deduction...
Is Capitalism Good for the Poor?
Obviously you have a lot to learn on Journalism and journalism laws.
"Slashdot, where telling the truth is overrated but lying is insightful."
Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
There exists no right to protect a source. A journalist may be "compelled" by legal process to disclose his source, although few actually do, and simply accept the punishment for contempt.
There exists no right to "protect" a trade secret other than by doing what they did -- to sue and hope to prevail.
First Amendment rights are often implicated in these scenarios, and the right to speak and publish is fundamental. But there isn't a right to protect a source, or for a source to be protected. None.
David, you made a compelling and logical case about the legality of this case and I agree with you on why it is legally and maybe even morally correct for Apple to sue. However, besides the strictly legal issues, I want to discuss the more ephemeral, less predictable business case here. You ask wether it is not within Apple's rights to sue if it thinks the leaked information is critical to its business. Well, I think in this case, which first off I must admit I do not know very much about, it looks to me like that being on the right side morally doesn't mean that its the absolute right thing to do for the brand long term. OK, so Apple has a problem. There are internal moles leaking this information to Websites, and lets go one step further and say that its reasonable to assume that if these moles aren't stopped, they could divulge more and more sensitive information over time. Right. The question is, what do you do about it. In my opinion, a high profile lawsuit which potentially could even slightly harm your brand is NOT the price one should pay for these leaks. My fear here is that Apple could potentially be paying a PR price here. How valuable is PR as a commodity ? As a former Product Manager I will tell you that PR and what people associate with your brand is very, very important. Companies spend *billions* upon billions just to build up a brand. I am sorry, but the brand *IS* sacred. So, if I were Apple I would do everything I could to scour the company for these moles. I mean everything. But, keep it internal. Hire private detectives if you must to hunt down the link from these sites to Apple, but keep it internal. That's how much I value the brand. To protect it and nurture it is of the highest order. To risk dirtying it because of leaks of some products would just not be consistent with that. Just because your legally (or morally) on the right side doesn't mean that its the right or wise thing to do at that moment. Now, of course companies need to protect themselves, and if a company's existence is threatened it should sue its heart out and I imagine everyone would support it in that endeavor. I suppose that is exactly the crux of the matter. Apple must really think that these leaks constitute a basic, life threatening danger to the company. My opinion is that from the little I have read and seen of these leaks, they are far from that and in my judgment not even worth one thousandth of the Apple image and brand. But that is a business judgment and the people at Apple who made the decision to go to court have much more information than I have to weigh these judgments properly.
Just one more problem that would need to be solved. Your comment doesn't change anything, except it adds one more thing that would have to be addresed.