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Newspapers Back Apple Bloggers
puke76 writes "Remember the bloggers being sued by Apple? Well now they've attracted the attention and support of some major newspapers. There's a story over at BBC. The newspapers are arguing that journalism sources should be protected. Can we blog without legal repercussions?" From the article: "Recent corporate scandals involving WorldCom, Enron and the tobacco industry all undoubtedly involved the reporting of information that the companies involved would have preferred to remain unknown to the public..."
From the article:
Now, IANAL, granted, but I'm having a hard time understanding how leaking trade secrets about a company's upcoming product could be construed to be 'in the public's interest', and thus merit this sort of protection.
Also from the article:
This is cute...likening Apple to WorldCom, Enron (trying to cover up massive accounting scandals), and the tobacco industry (trying to pretend they believe tobacco is not a deadly drug), to Apple (trying to protect its trade secrets and intellectual property).
Now, don't get me wrong...I'm all about the free speech...but this sort of thing simply doesn't deserve the same sort of protection that journalists receive. If it is granted that protection, then all legitimate journalism is weakened as a result, and we may ultimately see a decline in our right to free speech, rather than an increase.
____
~ |rip/\/\aster /\/\onkey
Great
So now, in their world, all anyone has to do to knowingly break binding contractual confidentiality agreements that they have agreed to in good faith with their employers with no danger whatsoever of being caught, is simply by leaking it to a web site!
No secrets! Power to the people! Down with the the man!
And stuff.
* Cue slashdot chorus singing "That's the companies' problem and they should hire their own investigators to find the leaks" *
An interested public != public interest
I think that the disclosure of information at Enron, Worldcom etc. didnt deal with trade secrets, but with whistle blowing corruption rather.
There's nothing in the Constitution that says freedom of the press only applies to professionals.
Taking guns away from the 99% gives the 1% 100% of the power.
I think I recall reading that the judge in this case said, essentially, that information of interest to the public is not the same as information in the public interest. It was in the public interest to report wrongdoing on the part of Enron, WorldCom and the tobacco industry. It is of interest to the public what the next Apple products might be. The informants in the former case should be protected. In the latter case, not. The judge in this case seems to be a very clear thinker in that respect.
Do not touch -Willie
I think throwing their support behind bloggers accomplishes two goals for the mainstream press:
1. It shows they're not "old media" looking to kill "new media" with any chance they're given.
2. It keeps one source of their information coming
Many news stories in the last few years never would have happened were it not for bloggers. The mainstream media made a killing reporting on things that were originally posted on blogs (the Dan Rather document comes to mind as a big example).
Regardless of the legality or morality of the blogger's actions, I see this as a win-win situation for mainstream media.
I'm a big tall mofo.
Enron, World Con^Hm, big tobacco were hiding dirty business. Apple was trying to keep a new product under wraps until scheduled announcement. These are, um, apples and oranges.
A feeling of having made the same mistake before: Deja Foobar
In the cases sited (whistleblower cases), the people involved were exposing violations of Federal law.
In the Think Secret case, the issue is whether a journalist (whatever definition you use) can refuse to provide the identity of an individual (or individuals) who provided trade secrets or confidential information about upcoming products.
Even the tobacco guys were more like whistleblowers, as they showed (or tried to show) that Congressional testimony by executives was demonstrably false.
The Think Secret case is nowhere near this, and Apple will most likely succeed. If Think Secret exposed a violation of law somewhere (death rays to be deployed in Cupertino, toxic waste, etc) then maybe they'd have a chance.
But as is, well, Think Secret is toast. They've gotta use better anonymizers, that's all.
as John Gruber noted it's pure and simple trade secrets law:
s
http://daringfireball.net/2005/03/new_york_time
Now I don't happent to know the legal system in the US all to well, my knowledge of IP law only covers the English system but it's fairly clear that this case has nothing at all to do with freedom of speech. Desperately trying to paint it as such is simply indicative of having no case to answer Apple's claim.
I was shocked to see the Instapundit being dragged in, Paul Reynolds is a law professor for Pete's sake. This isn't Bloggers trying to get the protection of Big Media because we have it at law, this is trying to do what many people have attempted in the past - using the 1st amendment as a shield to protect fraudulent activity. It hasn't worked in the past and it looks like it wont now.
All this case will prove is that bloggers are as much subject to Trade Secrets law as anyone else.
I have written and told them I DO NOT WANT my donation being used for this case, as I don't believe "freedom of the press" should be used as a "get out of jail free" card. There should be proof of "public interest" first.
Make sure everyone's vote counts: Verified Voting
But if you guys want to keep pretending that Apple is some noble philanthropic organization while Microsoft is a greedy capitalist leviathan, you go right ahead. Delusion is sure preferable to harsh reality, isn't it?
-Eric
SJW: Someone who has run out of real oppression, and has to fake it.
Every so often, people mention Apple being mean and heavy handed in this instance, but think about what you would have done in their shoes.
Apple has had multiple leaks over the past few months.
- 60 GB iPod
- OS X 10.4
- iPod Shuffle
- iPod Mini
So, basically everything they plan to come out with gets leaked. They need to prove that their NDA's mean something. They asked for the source, couldn't get it, so they subpoenad. Then, the guy supboenad said he wouldn't reveal his sources because of freedom of the press or something, so Apple sued.
It's crucial that companies be able to protect their information. Can I divulge business sensitive information to reporters because I know they can't reveal me as their source?
Since when has the public had a right to know about product specs that haven't been released and are being held under a NDA? This is not some Pentagon Paper revelation or finding out that an employee under a NDA saw dumping of toxic chemicals or a warning sticker on the product saying that exposure lead to cancer. This was an attempt to get people to violate their NDA so that these apple rumor sites could get the inside scoop before the mainstream media.
A lot of these chicken littles are focusing on this to exclusion of the FEC's remarks about federal regulation of online speech. How quickly the tune would change for bloggers like Michelle Malkin, if someone did this to them. Imagine if someone paid your spouse to take your journal information and then published your secrets online. You'd be livid too.
The problem with these rumor mills is that they make money by reporting on this that they have no intention of scrutinizing for accuracy whilst coyly suggesting that, "this is the unofficial truth from inside the company." It's one thing to make conjectures, to spout off and things like that. It is quite another to make a business out of what amounts to low-key libel. Apple's sales of the iPod shuffle according to one source I read may have been damaged because sites like ThinkSecret reported a price that Apple never claimed was possible and had no intention of selling at, thus creating an expectation that they themselves had never tried to create. That's not free speech, that's bordering on libel.
Click here or a puppy gets stomped!
It is great and all to talk about how this is a case that deals with trade secrets, not freedom of speech, but I can't help but notice that time and time again all the Apple supporters consistently ignore that the judge they are so fond of quoting specifically said that he doesn't know if this material is actually a trade secret!
A trade secret is not any little piece of information a business decides it doesn't want to get out. Many businesses these days like to put up forums in lieu of giving a customer a phone number to contact, that doesn't make their phone number a trade secret. Many businesses like to keep pay of their employees confidential, that doesn't make your paycheck a trade secret.
A trade secret is an invention, process, or method that is vital to your business, and that you actively protect and to which you actively limit internal access. For example, a formula for some sort of beverage, might be a trade secret, however, if you post the formula in the break room of every bottling plant, then you can no longer expect protection of trade secret status for that formula, because you have failed to maintain secrecy. By the same token, it is HIGHLY unlikely that ANY marketing material (even internal marketing material) could be considered a trade secret. By its very nature, marketing material is practically in and of itself a violation of the very concept of a trade secret. Trade secret law is a subset of IP law that exists to protect highly sensitive information that is critical to the core business of a company. It is not a method by which the owner of a company is suppose to be able to sue someone for letting the public know his favorite color.
What is really at issue has absolutely nothing at all to do with whether or not a company is entitled to protect its trade secrets. If this were a clear trade secret, then there would be no debate. What is at issue here is whether or not a paranoid company can get away with trying to claim that every trivial piece of information generated in the day to day operations of their business, can be claimed as a trade secret any time they choose.
The ramifications of this are huge! It means that any celebrity could successfully sue for any rumor about them acting badly on the set, because how they act on the set is a trade secret. Any movie studio could sue anyone for passing rumors about an in-production movie, because that is a trade secret. Any software company could sue anyone publishing rumors about their development, because that is a trade secret. You are talking about completely standing our current model on its head, and shifting the balance of power to the company with a presumption that it is the reporter who must show some public good, rather than the company which must show some demonstrable harm.
Anyone who thinks that is a trivial change, is someone far too enamored of a single company to think rationally about this issue. There are a plethora of sites and publications (this one included) that would pretty much have to shut their doors if it is decided that a company can arbitrarily use trade secret protections for any information they choose, unless some grater public good can be demonstrated.
If that is the case, why are you here maxpublic? Unless you are like the Cynic, Diogenes; who knows he is damned, but because he knows it is slightly less damned than the unenlightened.
First of all, yes I understand that technically the law doesn't protect these bloggers.
However, I think this is a huge mistake for Apple to persue, and I'm sad to see so many Apple fanboys (I count myself as one, without hesitation) defending Apple on this one.
This is not the time to be suing bloggers. Much of Apple's buzz comes from the internet and bloggers. This is just bad PR. I hope Apple quietly backs away from this. There's not much to gain from this except maybe the name of the guy they need to fire, and there's plenty to lose. Between this and iTunes DRM, you can see the "shades of evil" starting to form on Apple's image. If they do a few more things like this, they will lose a lot of respect from people like me. Sure, I'll buy their products, but I'll only love the products, not the company.
So please Apple, just drop this nonsense. Tell your lawyers not to say things like "bloggers aren't legitimate journalists". If you believe bloggers aren't legit journalists, why do you believe open source is legit software?
On another note, I find it amusing that the "real" journalists are suddenly backing the bloggers when just a few months ago they were writing about how bloggers have no integrity and aren't reliable and aren't "legitimate journalists". Heh.
I am not trying to be flaimebait here, but as I see it, most people here are actually taking Apple's side.
Now, is that because you are biased towards Apple? Would this case get this much support from slashdot readers if the company requiring people to open their e-mail records was, say Microsoft?
I do believe trade secrets should be protected, but that is not what is at stake here. What is at stake is the freedom of the press to publish information.
It's because Apple is right in this case ... contrary to what the reporters at these papers are saying ... there is no corporate scandal here, there is no health risk... plain and simple ... items were STOLEN from the Apple Campus and thenreported in opposition to the Uniform Trade Secret Act.
... besides ... the first ammendment was specifically written sothe public could have redress against the government and have the freedom to do so.
...
I suppose i wille flamebait and say
That said, if Apple were involved in corporate scandal or posing a health risk, those reporting WOULD have immunity because it would be an issue the government would have to address and impune.
For more on this issue, read:
Save Nick vs Save Apple
Yell & scream & rant & rave... it's no use... you need a shaaaave ~ Bugs Bunny
The law says it does, by only protecting information that is in the public interest. Even if you interpret this very very loosely to include something like wasting some tax money (instead of the obvious cases of outright fraud, or dumping chemicals, etc), there is still zero public interest in knowing what products Apple is coming out with in 2 months. There may be public curiousity, but that does not create legal protection for the information.
The speech in the form of freedom of the press IS protected. No one is going to throw the proprietors of Think Secret, PowerPage, or AppleInsider in jail over their speech.
What is NOT protected are their sources, who are breaking currently in force, legally binding confidentiality agreements to reveal the information, and the fact that the web sites, by publishing said information, also may be in violation of the Uniform Trade Secrets Act, versions of which have been adopted by 45 states including California.
This is not about speech. This is not about the right to blog. This is not about freedom of the press. (And if you think it's about the employees' right to "speak" about topics covered under confidentiality agreement, apparently someone forgot to tell them, and you, that they don't have to work there if they have that little respect for good-faith agreements with their own employer.)
This is about whether journalists - of any kind - can be compelled to reveal their sources when the information is NOT in the clear public interest, and could reasonably be believed to have been the result of a breach of a confidentiality agreement.
Santa Clara County Superior Court Judge James P. Kleinberg says, indeed, they can be.