Apple Trade Secret Suit Final Arguments Today

An anonymous reader writes "The final day of arguments takes place today in Santa Clara, CA, in the suit between Apple and the bloggers who outed their secrets." From the article: "Apple often dispatched cease and desist letters to the editors or these sites or initiated internal investigations to smoke out which of its employees were leaking information. But the lawsuit against the Power Page marked the first time that Apple attempted to use California law protecting corporate trade secrets to suppress the early disclosure of its product development plans by a Web media outlet. The Electronic Frontier Foundation, which is representing the Does, or the unnamed sources of the alleged information leak, contends that a ruling in this case could set a precedent that determines whether online sites can qualify as journalists who can work under First Amendment protections"

Comments

Bloggers = Journalists

[mork]

Apple have done Many Good Things (TM) but suing bloggers is not one of them.
They should have learnt byn ow you cant control the media.

Re:Bloggers = Journalists

[alfs boner]

This actually has *nothing to do* with whether bloggers are journalists! The judge in the case rightly realizes 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.

Re:Bloggers = Journalists

[gEvil (beta)]

Wow. Way to miss the point. That's not what the parent said at all. He said that what matters is whether divulging protected trade secrets is in the public interest.

If it's found that leaking upcoming product information is beneficial to the people (highly unlikely), then the bloggers will be covered under the first amendment. If, however, it's found that leaking upcoming product information doesn't particularly benefit anyone, then PowerPage will be forced to turn over the identity of the leaker.

Re:Bloggers = Journalists

[vought]

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


No, but journalists don't usually solicit for trade secrets to drive sales and/or views of a newspaper or web site.

Freedom of the press relies on the principle that what the press is reporting is in the public interest. Apple's unreleased products are in no one's interest but their competitors.

Trust me when I say this: O'Grady is a slimeball who only a few years ago solicited me for confidential information about what the wireless company I worked for was up to. He comes off as a very nice guy, promises that he'll write nice stuff about your company, and asks about things that aren't public knowledge. Of course, you're free to say no, and I did. The people at Apple were bound by contract to say no and they didn't, and from my experience, O'Grady's motivation is based purely on how many fanboys he can drive to his web site with a scoop about Apple or whoever's unreleased product.

The EFF's tactics are bullsh*t in this case. They're trying to get political bloggers to amplify this case by pretending that bloggers won't be able to write about ANY secrets or newsworthy but confidential information.

The key word here is newsworthy, and in a world where missing white women and rich white athletes in trouble for hiring (and possibly raping) black strippers are the biggest news items of the week, perhaps we have dropped down the well of profit-driven news to a new standard for freedom of the press. But I hardly think that's something to celebrate, especially when it's clear there are far more pressing (ha ha...er...oh, no) things to report on. Still, that doesn't keep CNN or Fox from breathlessly jumping from non-news story to non-news story.

Dupe

[Anonymous Coward]

The same story ran 12 hours ago. Apple==Zealots==Page Hits

3...2...1

[Anonymous Coward]

To 500 Apple apologist comments.

Re:3...2...1

[gEvil (beta)]

#500 I like black turtlenecks.

Someone please educate me

[El Cubano]

The Electronic Frontier Foundation, which is representing the Does, or the unnamed sources of the alleged information leak, contends that a ruling in this case could set a precedent that determines whether online sites can qualify as journalists who can work under First Amendment protections

IANAL, so someone please educate me on this topic. If a reporter at the NYTimes comes into posession of information that is some company's trade secret and publishes it, is that protected under the first amendment? What about the Paducah Post? Does it have to do with simply bineg published? the amount circulation the periodical receives?

Re:Someone please educate me

[technos]

If a reporter at the NYTimes comes into posession of information that is some company's trade secret and publishes it, is that protected under the first amendment?

Yes.

What about the Paducah Post? Does it have to do with simply bineg published?

They'd get protection from having to reveal their sources too.

the amount circulation the periodical receives?

You can run off forty copies on a Xerox machine and hand them out on a street-corner or coffee-shop, and you enjoy the full protection of the law.

But somehow "bloggers" appear to be different from "news sites", such as CNet (I dare say them announcing the move to Intel chips was a fair bit more damaging of a "trade secret" than some cancelled bit of GarageBand hardware), and shouldn't enjoy the same priviledges, despite sharing the same medium, material, and purpose.

Re:Someone please educate me

[Slack3r78]

If a reporter at the NYTimes comes into posession of information that is some company's trade secret and publishes it, is that protected under the first amendment?

Yes.

You're only partially correct. The actual publication is most likely legal, however, the original leaker of the information is still culpable.

But somehow "bloggers" appear to be different from "news sites", such as CNet (I dare say them announcing the move to Intel chips was a fair bit more damaging of a "trade secret" than some cancelled bit of GarageBand hardware), and shouldn't enjoy the same priviledges, despite sharing the same medium, material, and purpose.

And this is where you, along with most of bloggers get it wrong. It has much, much less to do with the fact that they're bloggers and not a more traditional media than it does the fact that their is no basic legal right to protection of journalistic sources. Hayes vs Branzburg established the precedent that sources are only protected in the event that it serves a greater public interest and that revealing the sources would have a negative impact on the flow of information in an otherwise free society.

What was leaked here was information that categorically falls under the very definition of a trade secret (down to the fact that the leaked slides were very clearly marked "Apple Confidential." We're not talking about Apple dumping toxic waste or something - we're talking about leaking information on an unannounced consumer electronics product which is protected under trade secret law in its own right.

Apple is not suing to shut the blogs down. They're suing the leakers and have *subpoenaed* the bloggers for the indentities. Personally, I have serious doubts that the Puducah Post, New York Time, or CNN would be able to successfully argue that their sources deserve the journalistic shield protection afforded to whistleblowers in a case like this when there's a clear trade secret law violation in contention which posed no possible public danger.

Re:Someone please educate me

[alanQuatermain]

I would personally argue that there has to be a parallel with libel cases here. The First Amendment says that the govenment will not legislate to restrict freedom of speech; in this case, it's being argued that juducial precedent here will also act to restrict general freedom of speech, contrary to the promises of the First Amendment. However, no-one argues when the case is about libel. In fact, it's a given that the courts' powers are needed to settle a libel case satisfactorily, so there is a precedent for a court ruling on a potential First Amendment issue where it hasn't affected the 'right to free speech'.

I would argue that a useful test for this case and others like it would be:

Is the violation of the trade secret actionable if the blogger/journalist, instead of printing and thus widely disseminating it, gave it directly to a competitor of the secret's owner?

In other words, if the blogger only told one person about the trade secret, and this person was in a position to make such use of the secret as to cause harm to the secret's owner, would the blogger still be entitled to First Amendment rights on free speech? Or could he be ordered by a court to provide the name of his source? Or does the fact that he told everyone via a [website|magazine|broadsheet] gain him extra privileges?

You see, First Amendment aside, it raises a very interesting and important question: the person who contacted PowerPage was under NDA, and violated that. If the court rules against Apple, then it means that non-disclosure agreements can be considered null and void provided you disclose for the purpose of widespread dissemination. It says "okay, you agree not to tell anyone about what you're doing. Well, except someone who'll tell everyone else. That's okay, because it's covered by First Amendment press rights, which means we're not allowed to find out who did it. But if you tell our competitors directly, you're toast." If the information is of a type covered by whistleblower laws (i.e. if it discloses a crime, or if withholding such information is likely to cause harm), then the 'leaker' is protected by those. If the whistleblower laws aren't appropriate, then they aren't protected, and they therefore shouldn't be allowed to hide behind journalists, bloggers, or anyone. If they're not allowed to tell Bill Gates about the stunning nw things being planned for OS X 10.6, they shouldn't be given express permission to tell Walt Mossberg or Paul Thurrott either. But a ruling against Apple in this case kinda leans that way, to my eye.

As to the comment about C|Net & the Intel switch, I would argue that that had less effect than this. It was 'leaked' a couple of days before the official announcement. Certainly not so far back that Apple's competitors could use the knowledge to significantly harm Apple. However, seeing that the 'Asteroid' project still hasn't appeared, I would conjecture that it was not close to release, and that in fact when the information was published on PowerPage a competitor found out about it and basically scuppered the project for Apple:

Imagine that Apple had an agreement with another company that this other company would provide similar hardware for the Mac, not just for PCs; now imagine that this company is renewing a five-yearly contract by which it agrees to make products with support for the Macintosh; now imagine that, upon reading PowerPage, they turn to Apple and say they'll drop the Mac market completely unless Apple drops the project-- hands it over as part of their part of the project, in fact.

Of course, we don't know anything about it for certain, but certainly that scenario isn't entirely far-fetched. And it's quite possible that Apple is very keen to know just who wasted the couple million dollars they pumped into R & D on this thing. I know I would be.

-Q

Re:Someone please educate me

[Ohreally_factor]

Attacked in what manner? Powerpage was subpoenaed (not sued) to give up their source. Then the court ordered them to do so. Powerpage and the EFF has appealed the case.

What are the underhanded tactics Apple is supposed to be using here?

Journalists and 1st Ammendment

[rossz]

It's a bad precedence to assume you need to be a journalist to have First Ammendement protection. EVERYBODY has the full Rights of the First Ammendment. This kind of shit can get up to the Supreme Court where a ruling could decide that only journalists have that protection. Do we really want that?

This is conduct, not speech

[alfs boner]

To me, Apple's defense of its trade secrets is warranted and does not constitute violation of free speech.

    Certain business language such as stock trading information, executive orders, are priveleged outside of the realm of free speech. That is, utterances such as someone giving insider trading information can have active results that cause harm to people; it thus qualifies as conduct, since it has a locutionary force that separates it from harmless, mundane speech. Similarly, an executive telling an accountant to shred documents regarding financial figures is a violation of business conduct laws, and a general telling his subordinates to murder innocent civilians violates war crimes laws.

This is no different. Disclosing trade secrets has done and does do appreciable damage to the company for whom they are secrets. Whether or not it is sensible for Apple to go after blogs to protect its trade information is a matter I haven't really decided on. However, to me, it makes sense in the same way as Rudolph Guiliani's policy of going after small-time lawbreakers to deter the bigger offenses - go after jaywalking, so that it looks like you're tough on crime in general. Similarly, Apple is obviously protecting what appears like trivial information about an upcoming product to prevent bloggers from thinking they can get away with disclosing larger trade information.

Apple obviously made the wager that allowing people to disclose trade secrets at all damages them in such a way that all the free advertising in the world can't make up for. I'm not sure I would have made the same wager, but I can respect Apple's decision to make it.

Re:This is conduct, not speech

[Slack3r78]

It's nice to see some Slashdotters are finally picking up on the true issues at hand in this case.

Here's the quick summary:

The being sued in this case apparently violate their NDA with Apple, leaking information on unannounced products to the bloggers. This is in direct violation of any contracts they mave have with Apple and trade secret law. Bloggers in turn post this information online. Apple sues the Does, and subpoena the bloggers for their identities. Bloggers try to fight subpoena on journalistic shield grounds under protections traditionally afforded to whistleblowers.

So that's where we are now. The problem for the bloggers is that that protection has generally been afforded when it serves the greater public good - the case I've cited again and again on this point is the NY Times and the Pentagon Papers. They have to prove that the leaking of the information was somehow in the interest of the great public good to win that kind of protection.

The biggest problem they have is that, rather than even attempt to argue this point, the EFF's lawyers more or less tried to turn this into a vague First Ammendment issue, arguing for protections which have never traditionally been afforded to the media, regardless of their chosen medium. And the judge basically took them to task for it in a previous brief. If anyone can find the PDF of the ruling from this previous Slashdot story, I'm sure there'd be some karma in it for you. It covers everything from previous cases to the fact that the documents in question were very clearly labeled "APPLE CONFIDENTIAL." It's incredibly well written and documented, and really should be read by anyone who wants to better understand the core issues of this case.

Free press for those who buy ink by the barrell

[Facekhan]

I find it difficult to conceive that a court will rule that the first ammendment protection of the press only covers those with multibillion dollar media conglomerates or old family owned newspapers behind them. Freedom of the press is freedom of speech as it applies to written or photographic material and should be no less free than speech and is not limited to those with journalism degrees.

Whether the trade secret law applies may be another matter beyond my knowledge, but the fact is that the website in question did not sign a non-disclosure agreement with Apple and is free to publish what it likes provided it is not libelous. That includes publishing information that Apple insiders chose to disclose to the site in violation of their agreements with Apple not to do so. Apple is obscessive about secrecy and it will just have to learn to live with leaks or Steve Jobs will just have to close the company down, fire all the workers and hire oompa loopas.

EFF arguments are nonsense

[gnasher719]

Really, they are nonsense. Whether a blogger is a journalist or not is a completely unimportant sidenote in this whole case. It is 99.9 percent sure that the decision will be absolutely the same, whether a journalist publishes trade secrets or a blogger. The only difference is that an experienced journalist would most likely not have the stupidity to do such a thing, and a journalist working for any newspaper would be confronted by the newspaper's legal team that would stop him before he gets everyone into trouble.

Then EFF's brilliant argument that Apple should have had all their employees pass lie detector tests or ask them to declare under oath that it wasn't them who leaked the information. So what would happen if Apple tried that?

Where I work this would happen:

Lawyer: Dear developer #1, please take this lie detector test.
Developer #1: F*** off.
Lawyer: Take this lie detector test or you will be fired.
Manager: F*** off. You are not going to fire any of my developers.

Lawyer: Dear developer #2, please take this lie detector test.
Developer #2: F*** off.

And so on. Seriously, would any of the readers here be willing to take a lie detector test in a situation like that? What a piece of nonsense.

Re:EFF arguments are nonsense

[gnasher719]

'' Do you think that oh, maybe that is the EFF's point? If the people who are already under contract aren't willing to play along with such invasive tactics, why then should the website owners, who have no contract with Apple, be required to do so? ''

No, that wasn't EFF's point at all. Their point seems to be that Apple in their opinion should first do anything to get the truth out of its developers, no matter what the cost to the company and the developers (and the cost if Apple did what EFF wants them to do would be enormous), even though these people are - except for one - completely innocent, instead of going after the website owners, who have supported and benefitted from criminal actions.

Protect the criminals, and let the victims pay, seems to be what the EFF is asking for.

'' Before you claim it is not the same thing, think about it - leaks are the bread and butter of a rumours website, thus the identity of leakers is probably one of their closest held secrets. ''

So you are saying that the identiy of the hackers is a trade secret? If Apple's trade secrets are published, then surely you won't mind if the rumors website's trade secrets are published as well.

'' While for employees, if they did not leak the document then they barely even have a dog in the fight. ''
This is truly pathetic.

Re:Great show Apple!

[shiznatix]

Great comment! 'I was going to switch but now ohhh man...'. I don't get it. Apple does not want their secrets to be told, don't you feel the same about your secrets? I don't see why this would stop your from buying a apple computer. If you are 'switching' then odds are that your running Windows and you are already supporting the greater of the evils and should not even speak about how 'evil' apple is being here.

Re:Wrong. Sorry.

[aristotle-dude]

It causes no harm? Did you notice how the stock price tanked when Apple announced the HiFi and Mac mini intel instead of the rumoured products? Have you noticed that asteroid has not seen the light of day yet?