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..."

Comments

Public Interest?

[TripMaster Monkey]

From the article:

Sources who give journalists details of corruption or wrongdoing are traditionally protected by law, if the story is in the public's interest.

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:

"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," said the brief.

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.

Re:Public Interest?

[Sanity]

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.

And who sits in judgement of what speech is and isn't worthy of protection? You perhaps? That isn't free speech.

Re:Public Interest?

[daveschroeder]

And who sits in judgement of what speech is and isn't worthy of protection? You perhaps? That isn't free speech.

What about speech that isn't protected now?

There has to be some arbiter.

And in your model, anyone could break their contractual agreements freely without fear of any discipline or reprisal simply by leaking to any web site.

Re:Public Interest?

[nocomment]

Agreed. The person who leaked Apple's secrets broke the law and deserves no protection from it, although I wish Apple would go easy on them, but make it clear that the next person will be made an example of. If I posted the windows source code in a JE would I be deserving of protection from microsoft? The dood signed a legal contract saying he wouldn't talk about it, and talked about it.

Re:Public Interest?

[hunterx11]

Apple didn't sue to censor the stories. They want the sources. Being allowed to be an accomplice to lawbreaking is allowed in some circumstances where there is a public interest. It is hardly a right.

Re:Public Interest?

[(54)T-Dub]

Speech is free as long as it doesn't infringe on someone else's rights. (IE: liable)

Re:Public Interest?

[nocomment]

When you say TradeSecret, I think you are referring to ThinkSecret. Also, ThinkSecret is NOT being sued. They were supeoned(sp?) to court to provide the source of the info, so the real leak could be sued. I actually agree with you that ThinkSecret IS a publication and IS deserving of of protection under the first amendment. Except that the journalist benefit is not absolute as the judge put it, and does not apply when a crime has been committed. In this particular case the guy the leaked the info commited a crime. Therefore is makes no difference if ThinkSecret is a journalism outlet (that's why the court spent so little time talking about that) because they'd still have to give up the info anyway. The court never even bothered to decide if ThinkSecret is a publication, because as I've said elsewhere, it doesn't make a difference if they are or aren't the end result is the same, give up the info.

Re:Public Interest?

[TGK]

No, the title of Journalist does not make one above the law.

At the same time, because the United States (likes to think that it) respects the freedom of the press, there are protections laid out for journalists.

Noteably, there exists a kind of confidentiality between a journalist and his sources. A similar confidentiality exists between a doctor and patients, and between a religious officials and their parishoners.

There exist some professions that rely on the trusted exchange of information between two individuals. We protect journalists because, were we to force them to give up sources, we would effectively silence any critical ideas. This is fundamentaly not what is meant by freedom of speech.

Sure, Apple has a case against the people that leaked information. It doesn't have any buisness trying to extricate their names from the blogers in question. What is told to a journalist remains in strictist confidance. The Pentagon Papers are a perfect example of why.

Re:Public Interest?

[daveschroeder]

Yes, but NOT the company in question!

Uh, it's not the company. It's the court that already decided that the web sites have to reveal the information.

They already do, doh! You could take some secrets of your company, go to a cybercafe, enter an anonimizing proxy and upload the data to your favorite website. All of this without getting caught.

Apple is still entitled to any and all information that relates to how the web sites came into this information. And if that means finding out that it was sent from a cafe in San Jose at 7:14 pm on Tuesday night, then that's all it is. But they're still entitled to it.

NO - It is the COMPANY's responsibility to ensure the data isn't leaked in the first place.

Yeah. And they do that, dumbass, by having their employees agree contractually in good faith to not leak their fucking information, and punishing them if they do!

And the Apple blogger in question didn't expose anything that would actually *harm* the company (like publishing some blueprints or source code). He just published A COUPLE OF ROUMORS, come on.

Um, no. He didn't. He published very specific information that was only known internally to LIMITED numbers of people within Apple. There were also artist renditions and specifications involved (re: Asteroid), and they also published clear and specific information about the Mac mini. Apple picked one thing, but they're concerned about all of it. And under the Uniform Trade Secrets Act, even journalists are not protected.

In other words, you're completely wrong, but nice try.

Re:Public Interest?

[geoffspear]

Well, if you read the Uniform Trade Secrets Act, you'll see exactly where the line is, and then you can maybe stop talking out of your ass on the subject.

Illegal behavior is explicitly not covered by the act.

Re:Public Interest?

[Rycross]

The point was that Apple was trying to force the blogger to disclose his source.

So thats exactly what they were trying to do. Punish the employee.

Re:Public Interest?

[Slack3r78]

Um, no. He didn't. He published very specific information that was only known internally to LIMITED numbers of people within Apple. There were also artist renditions and specifications involved (re: Asteroid), and they also published clear and specific information about the Mac mini.

In fact, if people could be bothered to read Judge Kleinberg's ruling, they'd find that at least one of the sites involved posted exact copies of presentation slides which were clearly watermarked "APPLE CONFIDENTIAL."

In other words, Apple had already made enough of a case regarding where this information had come from in order for the Judge to allow discovery to go forward.

Re:Public Interest?

[Anonymous Coward]

Your example is intentionally obtuse and irrelevent. You know damned well that there's a difference between some lousy coffee and a new product being released.

There is simply no way to conduct an intelligent conversation about this with those of you who seem convinced that anything short of Apple opening their doors, letting everyone in, and handing out free digital cameras (that you can keep!) is a violation of your precious rights.

Re:Public Interest?

[PureCreditor]

> NO - It is the COMPANY's responsibility to ensure the data isn't leaked in the first place.

No company (including Apple) has the ability to BIG-BROTHER-type monitoring over all the people who have access to internal information. That's why NDAs were created in the first place. If you leak against a NDA, you're violating a contract, period.

Legal documents that require participants to remain silent are not protected by free-speech. If you insist on leaking, don't sign it. If you agree to NDA, and you purposely leak it, the NDA issuer has every right to pursue litigation.

This is not about large or small company. It's not about Apple or Enron. An NDA is an NDA, and it's legally binding.

Free speech protection is not about EVERY speech.

Re:Public Interest?

[dr.badass]

There has to be some arbiter.

Yes, but NOT the company in question!

That's why they had to go to court. You know, with a judge.

NO - It is the COMPANY's responsibility to ensure the data isn't leaked in the first place.

And they do that by requiring people to sign legaly binding agreements. Why can you not understand this?

And the Apple blogger in question didn't expose anything that would actually *harm* the company (like publishing some blueprints or source code).

Oh, so now *you* get to be the arbiter? You're basing your ideas of "trade secrets" on movies and TV. According to law, you know, in reality, and the state of California, a trade secret doesn't have to be "blueprints or source code".

He just published A COUPLE OF ROUMORS, come on.

According to court documents (you know, the court, which actually decides the case), it was much more than rumors.

Also "he" is misleading, when you consider that most, if not all of the defendants in question are business entities.

Re:Public Interest?

[MoneyT]

Great, but under the Uniform Trade Secrets Act there is absolutely no evidence that this is a trade secret!

I think slides that say Apple Confidential on them would be evidence enough. In fact the courts found them to be evidence enough. But this is slashdot, why would I expect someone to actually READ the ruling and the facts

Re:Public Interest?

[MoneyT]

If you had actually bothered to READ THE COURT RULING you would find that Apple PROVED that trade secrets were leaked and therefore a law was broken.

Note to journalists. If it says "Apple Confidential" DON"T PUBLISH IT.

Re:Public Interest?

[lp-habu]

Perhaps you have the idea that "free speech" should mean "free of responsibility". It doesn't. Every freedom that you have is simply a freedom to do something without government interference -- nothing more. There is nothing to protect you from the consequences of exercising your freedom; that doesn't make you less free, it simply makes you consider the consequences. There is no freedom from responsibility; if you're not willing to take the responsibility then you have a problem of your own creation. And as a side point, your freedom to perform an action is not a claim on someone else's resources in order to support your action. If you can't pay, you can't play.

Where does it stop?

[singularity]

I am an ardent backer of free journalism, but I see this case pushing a very fine line. Where does "journalism" stop and "somebody just writing something down" start?

Suppose someone writes a trade secret in an anonymous Slashdot story submission? In an anonymous Slashdot comment? In a LiveJournal entry? In a Slashdot journal entry?

Should these all be protected under the guise of journalism?

The Internet blurs the line between professional journalism and amateur writing, which is one of the great things about the new levels of communication that is available to anyone able to get online.

This case can hold the precedence to start the "slippery slope" of protecting anything written online. While this might sound like a wonderful idea to the "Information wants to be free" crowd, I see it as being very dangerous.

This case is a bad test of the "bloggers as journalists" question anyway. Had a paper newspaper done the exact same thing, the law would not protect the paper either. ThinkSecret knowingly asked someone to disclose a trade secret, and then knowingly published this "secret" for no reason other than to publish it (and maybe reap some ad revenue).

Re:Where does it stop?

[XxtraLarGe]

There's nothing in the Constitution that says freedom of the press only applies to professionals.

Re:Where does it stop?

[brontus3927]

I agree that it is a bad test case, and the most damaging thing that could result is because of the blatant issues, the courts decide that blogging isn't journalism, and we're stuck with the decision.
However, until the issue is pushed and the courts recognize that blogging is is journalism, it isn't considered journalism and doesn't have any inherent rights.

Re:Where does it stop?

[daveschroeder]

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.

Great

[daveschroeder]

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

Re:Great

[daveschroeder]

I can't take credit for it.

It was the judge in this case himself who said it.

Some other worthy observations by Santa Clara County Superior Court Judge James P. Kleinberg:

"Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, [the enthusiast sites] are doing nothing more than feeding the public's insatiable desire for information.[1]

[...]

Defining what is a 'journalist' has become more complicated as the variety of media has expanded. But even if the movants are journalists, this is not the equivalent of a free pass.

[...]

The journalist's privilege is not absolute. For example, journalists cannot refuse to disclose information when it relates to a crime.

[...]

[The information about Apple's unreleased products] is stolen property, just as any physical item, such as a laptop computer containing the same information on its hard drive [or not] would be. The bottom line is there is no exception or exemption in either the [Uniform Trade Secrets Act] or the Penal Code for journalists--however defined--or anyone else.

[...]

The public has had, and continues to have, a profound interest in gossip about Apple. Therefore, it is not surprising that hundreds of thousands of 'hits' on a Web site about Apple have and will happen. But an interested public is not the same as the public interest."

Re:Great

[MoneyT]

and this is exaclty what apple did. And the investigators (as agents of Apple) are using the legal avenues availible to them to compell the sites to reveal the leakers of the information if they have that information.

However

[mattmentecky]

I think that the disclosure of information at Enron, Worldcom etc. didnt deal with trade secrets, but with whistle blowing corruption rather.

Re:However

[The I Shing]

I do agree. I'm not going to condone Apple's heavy-handed approach to this situation, but I think that what happened with Enron, WorldCom, and the tobacco industry is nowhere near the same ballpark. Those companies were all concerned with the public's reaction, or the government's reaction, whereas Apple was concerned with the reaction of their competitors. Apple doesn't see this as someone blowing the whistle about corporate misdeeds, or some internal memo surfacing about studies that prove the harmful effects of their products. Apple sees this as industrial espionage. Certainly no-one is more interested in what Apple is cooking up than those who are in direct competition with Apple. I'm sure Apple understands that the techno-cognoscenti will probably look upon the leaked information favorably, even approvingly. But that doesn't help when Sony or Dell is given three months of lead time to answer Apple's new products with similar products of their own.

Answer came from the judge

[daveschroeder]

This actually has *nothing to do* with whether bloggers are journalists!

The judge in the case rightly realized that, and didn't fall victim to the cries that this was a case of "blogger's rights" or any of that other shit. The judge realized that bloggers *can indeed* be "journalists", but not all bloggers *are* journalists.

The cases should be decided on whether there is a clear and significant public interest. In the case of these web sites, there is most definitely not. Therefore, they are not protected.

First Sign that Blogging is Dead

[WillAffleckUW]

and that everyone interesting has already moved on, is when the popular media backs you doing it.

Just like when grunge died.

Judge's Words, Paraphrased

[White Roses]

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.

Not surprising, actually.

[bigtallmofo]

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.

Since when did the BBC...

[lxt]

...become a "newspaper"?

I actually heard a report on BBC Radio today about Apple's image, which touched upon the whole rumour site issue - they had an interview with the EFF lawyer who defended the sites. The basic point was Apple had slightly tarnished it's "little kid taking on the world" image.

The Difference...

[ackthpt]

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.

The difference: illegal activity vs information

[mveloso]

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.

Re:The difference: illegal activity vs information

[alanQuatermain]

You can certainly argue that exposing Apple trade secrets and the Pentagon Papers aren't the same, and I'd probably agree with you. But the question is WHY they aren't the same.

The idea, as I understand it, is that Enron, the Pentagon Papers, and suchlike, were all revealing secret information about people acting in a way which was either illegal or immoral. That's illegal in the court-of-law sense, and immoral in either the 'not explicitly covered by --yet obviously going against the general thrust of-- actual laws/statutes', or the 'a lot of people will be very upset by this behaviour' dominant moral ideology sense.

In the case against ThinkSecret et al, I can't see that such protection is merited. No-one gains any obvious benefit from the information, except that some folks may wait longer to get a machine & save the cost of an additional OS purchase. But unless the news reported was that Apple was trying to cheat folks out of their money somehow (they're not), then there's no controversy being reported, so no 'witness protection' is merited.

In short, these rules are to protect those folks who, in spite of danger to either life & limb or to their continued employment, make the details of some controversy open to the public. They are not there to enable employees to cheerfully break their employment contracts without fear of repercussion.

I personally believe that Apple need to find the person(s) responsible, because otherwise they've no real way of enforcing their contracts, and without obvious means of enforcement, there's no real incentive to abide by their terms, is there? They might as well print the opening pages of 'Gulliver's Travels' & hand that out to new employees instead...

-Q

Re:what is journalism?

[TripMaster Monkey]

Sorry, but no. Leaking trade secrets is not journalism...it's corporate espionage, and deserves to be treated as such.

This isn't 1st Ammendment Rights...

[fussili]

as John Gruber noted it's pure and simple trade secrets law:

http://daringfireball.net/2005/03/new_york_times

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.

If you support the EFF

[rsborg]

and you don't like the position they are taking on this case, let them know: information@eff.org.

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.

Comparisons not valid.

[unclethursday]

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...

Except that the ThinkSecret et al cases have nothing to do with the whistle blowing that went on with Enron, WorldCom, and the tobacco industry. If the blogger sites had found out information that Apple was cooking the books and defrauding their stockholders and raiding their employees 401K plans and other retirement funds, or was knowingly coating their products in a toxic chemical that will eventually lead to a debilitating or fatal disease, then there would be similarities.

Releasing info on upcoming products that, while the public would be interested in for other reasons but do not affect the greater good of the public, is not whistle blowing. In the "public's interest" and for the Public Good are two entirely different things.

Basically, these news organizations and the AP are trying to ensure they cover their asses in the future, hoping that they can still protect whistle blowers, but it sounds to me like they have completely forgotten what the term whistle blower means. Either that, or a lot of the reporters had planned on doing similar things, and don't want to face the repercussions of doing so. Either way, they are in the wrong on this issue, not Apple.

Noble Apple vs. Big, Bad, Evil Microsoft

[elrous0]

How did I know when I saw this thread that we'd immediately get 30 replies defending Apple? Funny, but I also suspect that if Microsoft did the exact same thing, there would immediately be 30 replies bashing Evil Bill's empire-mongering.

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

One thing to blog...

[feloneous cat]

And quite another to be charging advertisers.

Let's face it, these are not Uncle Joe blogging about a rumor, these are folks making a buck off someone breaking a confidential agreement. Even bona fide journalists go to jail when they break the law or encourage someone to break the law to get a story.

I don't like NDA's, but the reality is they are legal and binding agreements. And breaking an NDA to get a 10-20 jump on an announcement is, in my view, rather stupid.

What would you have done if you were Apple?

[ABaumann]

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?

Oh please...

[ShatteredDream]

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.

Herein lies the crux of the matter...

[projectVORTEX]

"For us, this case is about whether the First Amendment protects journalists from being turned into informants for the government, the courts or anybody else who wants to use them that way," Mr Tomlin said.

The issue here is that of sources. Apple is forcing, through court action, the identies of the sources in question. As the newspapers and the AP see it, this sets a dangerous precedent and one that is quite blurry. Up until now, the media has been protected from having to reveal its sources -- a guarantee that allows for better journalism (in their eyes at least) through the First Amendment. If the courts rule in favor of Apple, then everyone else and their brother can use this case as an example when they go after "unnamed sources" and journalists who have insider information on wrongdoings.

When grey areas collide

[toounknown]

This whole thing is happening at the boundary of two huge grey areas: Journalistic Freedom and Trade Secrets.

In the past, companies would be happy to have free publicity, especially the positive kind. Viral marketing is just an upgrade to classic 'word of mouth' and is both free and effective. So, in this case, more benefit was probably done than harm.

If this escalates, soon anyone who writes non-official information about a product that discloses some features or product details may be sued for unofficially offering trade secrets to the public.

But I guess the patriarchy of corporations knows what is best for us after all.

Re:Some else's rights to what?

[sumdumass]

You are confusing rights with privilages and expectations people enjoy.

Nixon didn't have a right to privacy when he ventured into the open market of the presidency and violates some laws to get there. He had an expectation of privacy but no right.

You don't have a right to travel in any lane of trafic. What you have is a privilage to do so if it is availible. Someone else driving there doesn't inpead any rights. It hampers your expectation of being able to do so.

Jim Dunne, I'm not sure who he is but you might be corect here. Companies do have a right to (a limited) pricay and the ability to keep trade secretes private if they choose to do so.

Photographers. This is a touchy situations here. People holding public office as well as being "famous" tend to have a less right or expectation of privacy then others. This has been established in court so it is set in case law. I think what is confusing here is the fact that outside a law banning the marrying of a house, Charles would have an right to privacy were "prince" charles would just have an expectation of privacy.

Some time we assume that somethign we are acustom to is a right and that right is infered to others. You have the right to equal opertunity houseing but a registered sex offender has a limited right and has to be so far away from places minor might be. Convicted DUI offenders don't have the same rights we might have and famous people don't have as much protection form slander or liable as wee do. (they do however, general have more of a means to combat it)

Not everything is a trade secret!

[lmlloyd]

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.

Re:Not everything is a trade secret!

[lmlloyd]

Oh, I can, and have read the finding. What I seem utterly incapable of, is hacking it into unrecognizable chunks that fit my point while totally removing it from context, just to try to win an argument. For example, while you quote the end of the conclusion, you leave out the opening which puts this in context:

In this case, accepting for present purposes that Apple's allegations about trade secrets are true, the information divulged falls squarely under the UTSA and Penal Code 499c definitions. As such it is stolen property, just as any physical item, such as a laptop computer containing the same information on its hard drive (or not) would be.

Now maybe you don't know this, but if something is proven to be true, you don't start off with a disclaimer like "accepting for present purposes that Apple's allegations about trade secrets are true." A disclaimer like that specifically calls into question the veracity of the claim, but agrees to accept it for the present curcumstance. More to the point, you leave out the rather straightforward disclaimer at the beginning of the entire document which says:

The Court makes no finding as to the ultimate merits of Apple's claims, or any defenses to those claims. Those issues remain for another day.

Never mind that though! Why don't you just go right ahead and pretend the judge said that Apple was right about it being a trade secret. The judge goes on to note in his finding, that the defense tacitly accepter that the information was a trade secret by not addressing the issue, therefore he was had little choice but to accept that it was for the purposes of this hearing. Now, maybe you are too busy searching for quotes that support your position to think about how this adds up, so let me do it for you. Typically, when the judge feels the need to quote the litigants arguments in his finding, it is tantamount to him saying "hey, dummy, this is where you messed up!" In fact, the judge does everything in this finding he can to make it clear that he thinks Apple's argument that this is a trade secret is weak. Unfortunately, since it was never contested in this hearing, he had to accept it, without granting any weight to it, thus the opening disclaimer.

Re:Not everything is a trade secret!

[lmlloyd]

If that is the case, then why is there not a single mention of any NDA in any of the findings? No, Apple could not have obtained a sopbnea to get the information they wanted by just claiming an NDA had been broken. Had they claimed that this was just an issue of an NDA being broken, then the burden of proof would have been on them, and they would have had to have found out who broke it themselves.

Apple specifically invoked the trade secrets law, because it gave them a heavier hand to play with. They are trying to claim that this is information that falls into a rarified clas of intellectual property, which gives them special protections beyond that offered by simply having someone sign an NDA.

Re:Not everything is a trade secret!

[lmlloyd]

Um... Here is a bit more legalistic definition of prima facie:

Prima facie is a Latin expression meaning "at first sight," used in Common law regions to denote a case that is strong enough to justify further discovery and possibly a full trial. For example, being found standing near a dead gunshot victim with a smoking gun in your hand would establish a prima facie case for murder. Prima facie is often confused (even by legal scholars) with res ipsa loquitur (the thing speaks for itself), the legal doctrine which establishes that the evidence on its own is sufficient to establish the fact in question unless it is explicitly rebutted by other evidence or mitigating circumstances.

You are clearly confusing prima facie with res ipsa loquitur. Prima facie implies no real validity to the claim, but rather just says that upon first glance is reasonable enough to allow the case to go further. As a matter of fact, it could be argued that just as valid a translation of prima facie, would be "shallow." Of course "the Court finds that Apple has made a shallow case of misappropriation..." doesn't really forward you agenda very well, does it?

I am not reading anything between the lines. This is English, not some obscure foreign language that needs to be carefully translated! Every statement of the validity of the claim is bracketed by disclaimers saying that none of this is to be used to evaluate the validity of the claim, but rather just for the sake of argument in this specific instance. That isn't some clever divination of the judges mental process through deconstruction of his childhood or anything, it is what is written on the page in black and white.

By the same token, the judge specifically admonishes the defense council for having nothing to say in either their prepared brief, or in their oral statement. Once again, no subjective slight of hand here, but rather a black and white observation of what is written on the page. The only point where I used any actual supposition whatsoever was in saying that judges usually don't admonish attorneys unless they think they did something wrong. I don't think that is really much of a stretch, since that is true about just about everyone.

No, I have no real problem saying that I'm not really "reading between the lines" here, but rather evaluating the document as a whole, rather than picking and choosing the parts of it that say what I want. You yourself quote "...it cannot and should not be read or interpreted more broadly" and then turn right around and say that it proves that this is actually a trade secret. I would say that goes beyond reading between the lines, and straight into creative reinterpretation to support an already decided point of view.

The Uniform Trade Secrets Act

[dafz1]

Apple is enforcing their rights under the the Uniform Trade Secrets Act(UTSA). Here's the pertinent parts of that law.

(1) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means.
(2) "Misappropriation " means: (i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his position, knew or had reason to know that it was a trade secret ad that knowledge of it had been acquired by accident or mistake.
(3) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
(4) "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.

1. TradeSecret induced breach of the NDA(or a duty to maintain secrecy), by asking readers for Apple Secrets. Go to their webpage, and click on the "Got Dirt?" link.

2. Misappropriation - ThinkSecret had reason know the information was "acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use."

3. ThinkSecret would qualify as "a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity."

4. Finally, as defined by the UTSA, Project: Asteroid "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 is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."

Is Apple wrong for using the law? Apple is entitled to the protections of law, just as much as I am. Is the UTSA unconstitutional? That's for the courts to decide.

Apple

[had3l]

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.

Re:Consider the company that Apple keeps.

[TripMaster Monkey]

Place yourself in Apple's shoes for a money.

Freudian slip?

Re:Apple

[adzoox]

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.

I suppose i wille flamebait and say ... besides ... the first ammendment was specifically written sothe public could have redress against the government and have the freedom to do so.

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 ...