Heads up! There are two separate cases. In one, the defendants are unknown, and Apple is attempting to learn their identities by subpoenaing people involved with two websites to compel them to reveal their sources.
In the other, the Think Secret case, Apple is suing the Website operator. You might think that this is a bad thing, but try reading this before making up your mind.
Would you mind posting your Social Security number, your date of birth, place of birth, passport number, any credit card numbers (including exp.dates and security codes) and your banking pin here on slashdot? Maybe "GPL" them? (or BSD License. I'm easy.)
If you don't feel comfortable divulging your personal information, would you mind if someone else did?
Of course you don't mind! If you objected, you'd be violating my right to free speech.
I think you have a basic misunderstanding of the legal system in the USA. A good part of which is based on legal precedent going back to the 17th Century. Does the name British East India Company ring any bells? founded in 1600?
These laws are formalized in precedents. It might not be what you call "formalized" as in number theory or geometry, but it is formalized.
I'm not saying I disagree with your point about corporate abuse, I'm just trying to clear up your misunderstanding of the law.
- Other speech that creates a clear and present danger -- remember the "'fire' in a croweded theatre" thing? (this standard isn't in play as such, but it's similar)
I think saying "Hurry up and jump, you're holding up the line" on a crowded ledge is illegal in Australia.
If they didn't know who the source was, they could have just said so. However, they did know, and they're not so stupid that they were going to commit perjury.
Yes, but your argument to support your point failed. You might still have a point, but you need to supply a better different argument to prove your point. We're not getting graded (moderation notwithstanding), so try again. Why is this not a simple case? What elements make it complex?
Of course, you don't have to do anything. But to claim a thing but not be able to support that thing through reasoning, evidence, or both is pointless.
I think you just completed a hat trick! I'll keep reading to see if you manage a quadruple dumb.
Tortious interference has to be one of the dumbest concepts I have ever heard someone try to justify on/. (and there is plenty of competition).
See the thing is that it's not just a concept, it's the law. It's not a concept that anyone here need justify. It's something you should take care not to do, if you don't want to get sued.
Yeah, thank God someone is finally protecting those poor multinational corporations from those evil non-professional journalists.
The laws would apply just the same if the trade secrets belonged to a single person, and it was a large corporation or an individual that broke an NDA and leaked the information to Nick. It's not likely that Nick would be able to induce a large corporation to break an NDA, though. Who knows, maybe he's really persuasive.
I'm not so sure that the facts are not in dispute in the legal sense, nor that this is the only defense that Nick's attorney's will offer up. It's an attempt to dismiss the case before it gets to that point (not to mention trying to win the case in the court of public opinion).
At some point, Nick's defense will have to file a document that lists all his avenues of defense. I can't remember off hand what this is called, but it's something like a lists of affirmative defenses, and once the defenses have been made (i.e., listed in the document) Nick's attorneys are pretty much limited to those defenses (though they need not use them all). For this reason, a good D attorney will list all the possible defenses he can think off, just in case.
If the facts are not in dispute, it won't go to a jury trial, but each side will have an opportunity to persuade the judge on how the facts should be interpreted. They will also try to "guide" the judge as to which laws apply, which precedents apply, and how they should apply.
But you do understand Apple's claim and you do have a grasp of the governing law on trade secrets, probably better than my own understanding.
What needs to be made clear is the distinction between unlawful and illegal, which you seem to be hinting at.
Breaking a contract could be considered unlawful, but it doesn't necessarily follow that it is illegal and thus a crime. Also, something might be both unlawful and illegal. In some cases where an action is both, the state (or the people, as they say) might choose not to prosecute for whatever reason, but that still leaves it open for the injured party to seek redress.
A simple example of this is if someone ran a red light and smashed into you while you were driving your car. The other party might be guilty of numerous infractions (or worse than infractions), but for whatever reason they aren't issued a citation, arrested, or prosecuted. You can still sue them for your personal injury and for damages to your car in a civil court.
That's just an example. It's not an analogy of the current case.
Oh, and one more thing, just for your legal education. A judge doesn't bring criminal charges. A prosecutor of some sort does that (a District Attorney, a City Prosecutor, etc.). I don't think you're watching enough TV, or you'd know this. =)
I'm dying to know: What did you have for lunch today?
e. The reality is these agreements are very broad and could easily be used to run roughshod over other rights.
So, what do you suggest, that all NDA contracts be considered null and void?
I'll agree that there is potential for abuse (does the NDA cover thoughts you have? while at home?), but there's no abuse of NDA contracts by Apple in this particular case.
Apple is trying to create a false reality--a reality in which secrets are kept merely by agreement. That's not realistic on any large scale. Equating 'secrets' with 'physical property' doesn't change reality.
I think that's absurd. How do you propose that secrets be kept, if not by agreement? Are you advocating a "Code of Silence" in which leakers of secrets are murdered?
Oh, and you're also a bit confused. The ruling wasn't about the Think Secret case. It might be a good idea if you limited your comments to things you actually know shit about. OK, that was flamebait. Sorry. =)
It's not that a Judge can order you to keep records in the future, it's that destroying evidence is illegal. If you don't get prosecuted for it, you can still get sanctioned by the court. Even if the case comes up after the fact, if you could reasonably assume that there would be a case. (Example: Apple comments that they're going after the employees who broke their NDAs, you destroy the records, you get in a world of shit.)
OTOH, if you're not keeping any records or verifying your sources, there is no way that you can publish accurate information. The rumor sites have had their asses handed to them before for falling for hoaxes. They lose credibility. If it's totally anonymous, then anyone who comes up with a plausible rumor will get the front page, and no one will read your site because there is no way to tell the useful info from the bad.
LK definitely has a point, but to effectively run a news site, you need news, not just made up shit. If these sites were merely publishing rumors with no factual basis, then they couldn't claim to be journalists. Taken to the extreme that he recommends would be a disaster for a news site. In other areas he might be right about this strategy, but I'd consult a lawyer before taking LKs advice. (No offense, LK.)
Thank you for putting that all so succinctly and without rancor, and reminding some of us (again) of the facts and the law.
I understand where Delmoi, the GP, is coming from. I don't think it's uncommon for us to feel sympathy for the underdog, for a David taking on a Goliath.
I also think Delmoi deserves credit for stating his views plainly, and not trying to couch it in legal arguments that he doesn't really understand, like so many are doing (repeatedly!).
Delmoi, if you read this, I salute you for your refreshing straight-forwardness and honesty. I disagree with you, but I don't think you're an idiot. You're giving us the truth of your gut feeling without resorting to half-assed sophistry.
I'm not sure how many times this must be repeated before it sinks in, but, in this case, the two websites are not being "held liable". They are not being sued, they are being subpoenaed for information. The judge has said that they cannot withhold that information and that their standing as journalists has no relevance either way.
The Think Secret case is a different case. In that matter, Apple claims that Nick induced the leaker to break a contract (the NDA) and reveal the secrets. We don't really know all the facts in that case, so it's premature for anyone to start proclaiming either the innocence or culpability of Nick.
Just so we are clear on what you are talking about. . ..
Do you have any idea how serious perjury is? The punishment of perjury is SEVERE, much worse than just refusing to testify and being held in contempt of court.
So what are the chances of not getting caught? Well, you're basically putting your life into the hands of someone you know does not respect agreements or signed contracts.
Oh, and there's no statute of limitations on Perjury. If the truth comes out in ten or twenty years, you can still be prosecuted in court as a criminal. And you're doing this to protect someone in a civil trial? So they won't lose their job?
The main reason not to engage in perjury is because it's wrong to bear false witness. But there are a lot of very serious reasons why it's not smart.
But don't take my word for it. Ask any lawyer about Perjury, the risks involved, the penalties, etc.
That's not a precedent. That's the way the law already works.
The exception, and the protection for journalists and their confidential sources, are the shield and whistle blower laws. These laws are in place because it is beneficial for the public to know when there is corruption in government or accounting improprieties at corporation (etc.). The person blowing the whistle on the wrongful behavior deserves to be protected.
In this case, there was no whistle blowing. No information about illegal business practices was revealed. What was revealed were trade secrets.
My point is that requiring to know these people's identites is tantamount to presuming that they are guilty until proven innocent (especially given the entirely plausible explanation that the magazine's sources never worked for apple and they heard it from someone else just the way the magazine did). That's what I object to.
That's just your incorrect interpretation of the law. Revealing the identity of the source is in no way tantamount to presuming they are guilty. It is what it is, a revealing of an identity. If the person identified never worked for Apple, then presumably they also have a source for the information, and they will be asked to reveal it. Why is that so hard to understand?
And as I asked you elsewhere, how does this make the magazine "even more liable"? Do you know what the word means? Maybe you should check it out?
No... someone probably _did_ violate an NDA. There's no actual _proof_ of that, but it certainly is the most probable explanation.
I was right. You are a bit dim. Have you ever heard of something called "deductive reasoning"?
Let me show you an example. Five people have a secret. Let's call then A, b, c, d, and 5. Suddenly, the whole world knows the secret. Using deductive reasoning, we can prove that either A, b, c, d, or 5 (or some combination thereof) have revealed the secret. If we ask everyone where they heard it, and they name person F, then one, all or some of the original group must have told person F. (Correlation does not always equal causation, but that does not mean it never does.)
Maybe that's too much of a leap for you, and you require a video tape of someone wearing a trenchcoat to hand someone else a briefcase full of documents. Or maybe we should be dusting all the doorknobs at O'Grady's Power Page for Apple employee fingerprints.
At any rate, you need to avoid working in the field of detection.
A witness isn't required to say things, a witness is required to tell the truth. If a witness is unwilling or even hostile, they are still legally responsible to tell the truth.
You're saying it's OK to withhold evidence in this particular case? On what basis?
The websites argued that they were protected from telling the truth by the California shield laws, laws designed to protect whistle blowers that might reveal crimes and bad behavior by government and corporations. However, the judge ruled that there was no whistle blowing involved, that an interested public does not equal the public interest.
If you are a witness to either a crime or a tort, you're required to tell the truth. That's the law. Are you saying that enforcement of the law is evil?
Still, the information was wrongfully leaked at some point. If employee A leaks the info to intermediary B, who then passes the info to rumor site C, Apple can still ask the court to compel C to reveal their source, so that Apple can then ask B who A was. If B refuses to answer, they can be compelled to by the court. And so forth, until Apple learns the identity of A.
If there was no direct relation between the leaker and the publisher, there is still a chain of connections. Are you saying that such a chain shouldn't be investigated?
Slashdot Mirror
Dude, that was hysterical! Thanks for sharing.
Heads up! There are two separate cases. In one, the defendants are unknown, and Apple is attempting to learn their identities by subpoenaing people involved with two websites to compel them to reveal their sources.
In the other, the Think Secret case, Apple is suing the Website operator. You might think that this is a bad thing, but try reading this before making up your mind.
I love the GPL and all that, but surely you're not so brainwashed as to think that source code cannot be both speech and a trade secret?
Would you also argue that a hula hoop is cannot be both circular and a toy? (You know, for kids.)
Would you mind posting your Social Security number, your date of birth, place of birth, passport number, any credit card numbers (including exp.dates and security codes) and your banking pin here on slashdot? Maybe "GPL" them? (or BSD License. I'm easy.)
If you don't feel comfortable divulging your personal information, would you mind if someone else did?
Of course you don't mind! If you objected, you'd be violating my right to free speech.
I think you have a basic misunderstanding of the legal system in the USA. A good part of which is based on legal precedent going back to the 17th Century. Does the name British East India Company ring any bells? founded in 1600?
These laws are formalized in precedents. It might not be what you call "formalized" as in number theory or geometry, but it is formalized.
I'm not saying I disagree with your point about corporate abuse, I'm just trying to clear up your misunderstanding of the law.
- Other speech that creates a clear and present danger -- remember the "'fire' in a croweded theatre" thing? (this standard isn't in play as such, but it's similar)
I think saying "Hurry up and jump, you're holding up the line" on a crowded ledge is illegal in Australia.
If they didn't know who the source was, they could have just said so. However, they did know, and they're not so stupid that they were going to commit perjury.
Yes, but your argument to support your point failed. You might still have a point, but you need to supply a better different argument to prove your point. We're not getting graded (moderation notwithstanding), so try again. Why is this not a simple case? What elements make it complex?
Of course, you don't have to do anything. But to claim a thing but not be able to support that thing through reasoning, evidence, or both is pointless.
I think you just completed a hat trick! I'll keep reading to see if you manage a quadruple dumb.
/. (and there is plenty of competition).
Tortious interference has to be one of the dumbest concepts I have ever heard someone try to justify on
See the thing is that it's not just a concept, it's the law. It's not a concept that anyone here need justify. It's something you should take care not to do, if you don't want to get sued.
Yeah, thank God someone is finally protecting those poor multinational corporations from those evil non-professional journalists.
The laws would apply just the same if the trade secrets belonged to a single person, and it was a large corporation or an individual that broke an NDA and leaked the information to Nick. It's not likely that Nick would be able to induce a large corporation to break an NDA, though. Who knows, maybe he's really persuasive.
I'm not so sure that the facts are not in dispute in the legal sense, nor that this is the only defense that Nick's attorney's will offer up. It's an attempt to dismiss the case before it gets to that point (not to mention trying to win the case in the court of public opinion).
At some point, Nick's defense will have to file a document that lists all his avenues of defense. I can't remember off hand what this is called, but it's something like a lists of affirmative defenses, and once the defenses have been made (i.e., listed in the document) Nick's attorneys are pretty much limited to those defenses (though they need not use them all). For this reason, a good D attorney will list all the possible defenses he can think off, just in case.
If the facts are not in dispute, it won't go to a jury trial, but each side will have an opportunity to persuade the judge on how the facts should be interpreted. They will also try to "guide" the judge as to which laws apply, which precedents apply, and how they should apply.
But you do understand Apple's claim and you do have a grasp of the governing law on trade secrets, probably better than my own understanding.
What needs to be made clear is the distinction between unlawful and illegal, which you seem to be hinting at.
Breaking a contract could be considered unlawful, but it doesn't necessarily follow that it is illegal and thus a crime. Also, something might be both unlawful and illegal. In some cases where an action is both, the state (or the people, as they say) might choose not to prosecute for whatever reason, but that still leaves it open for the injured party to seek redress.
A simple example of this is if someone ran a red light and smashed into you while you were driving your car. The other party might be guilty of numerous infractions (or worse than infractions), but for whatever reason they aren't issued a citation, arrested, or prosecuted. You can still sue them for your personal injury and for damages to your car in a civil court.
That's just an example. It's not an analogy of the current case.
Oh, and one more thing, just for your legal education. A judge doesn't bring criminal charges. A prosecutor of some sort does that (a District Attorney, a City Prosecutor, etc.). I don't think you're watching enough TV, or you'd know this. =)
I'm dying to know: What did you have for lunch today?
e. The reality is these agreements are very broad and could easily be used to run roughshod over other rights.
So, what do you suggest, that all NDA contracts be considered null and void?
I'll agree that there is potential for abuse (does the NDA cover thoughts you have? while at home?), but there's no abuse of NDA contracts by Apple in this particular case.
Geez, you and Leo are a tag team or something? I just woke up my dog and cats with my laughing.
You don't understand the case or the ruling. Read this article (which I have already pimped elsewhere).
I detect that McGarry sense of humor on the third comment to that article. Am I right?
Your comment was definitely dumber. On the dumb scale it gets an 8.6, but that's only because of the Russian judges hurting your overall score.
Apple is trying to create a false reality--a reality in which secrets are kept merely by agreement. That's not realistic on any large scale. Equating 'secrets' with 'physical property' doesn't change reality.
I think that's absurd. How do you propose that secrets be kept, if not by agreement? Are you advocating a "Code of Silence" in which leakers of secrets are murdered?
Oh, and you're also a bit confused. The ruling wasn't about the Think Secret case. It might be a good idea if you limited your comments to things you actually know shit about. OK, that was flamebait. Sorry. =)
It's not that a Judge can order you to keep records in the future, it's that destroying evidence is illegal. If you don't get prosecuted for it, you can still get sanctioned by the court. Even if the case comes up after the fact, if you could reasonably assume that there would be a case. (Example: Apple comments that they're going after the employees who broke their NDAs, you destroy the records, you get in a world of shit.)
OTOH, if you're not keeping any records or verifying your sources, there is no way that you can publish accurate information. The rumor sites have had their asses handed to them before for falling for hoaxes. They lose credibility. If it's totally anonymous, then anyone who comes up with a plausible rumor will get the front page, and no one will read your site because there is no way to tell the useful info from the bad.
LK definitely has a point, but to effectively run a news site, you need news, not just made up shit. If these sites were merely publishing rumors with no factual basis, then they couldn't claim to be journalists. Taken to the extreme that he
recommends would be a disaster for a news site. In other areas he might be right about this strategy, but I'd consult a lawyer before taking LKs advice. (No offense, LK.)
Thank you for putting that all so succinctly and without rancor, and reminding some of us (again) of the facts and the law.
I understand where Delmoi, the GP, is coming from. I don't think it's uncommon for us to feel sympathy for the underdog, for a David taking on a Goliath.
I also think Delmoi deserves credit for stating his views plainly, and not trying to couch it in legal arguments that he doesn't really understand, like so many are doing (repeatedly!).
Delmoi, if you read this, I salute you for your refreshing straight-forwardness and honesty. I disagree with you, but I don't think you're an idiot. You're giving us the truth of your gut feeling without resorting to half-assed sophistry.
I'm not sure how many times this must be repeated before it sinks in, but, in this case, the two websites are not being "held liable". They are not being sued, they are being subpoenaed for information. The judge has said that they cannot withhold that information and that their standing as journalists has no relevance either way.
The Think Secret case is a different case. In that matter, Apple claims that Nick induced the leaker to break a contract (the NDA) and reveal the secrets. We don't really know all the facts in that case, so it's premature for anyone to start proclaiming either the innocence or culpability of Nick.
Just so we are clear on what you are talking about. . . .
Do you have any idea how serious perjury is? The punishment of perjury is SEVERE, much worse than just refusing to testify and being held in contempt of court.
So what are the chances of not getting caught? Well, you're basically putting your life into the hands of someone you know does not respect agreements or signed contracts.
Oh, and there's no statute of limitations on Perjury. If the truth comes out in ten or twenty years, you can still be prosecuted in court as a criminal. And you're doing this to protect someone in a civil trial? So they won't lose their job?
The main reason not to engage in perjury is because it's wrong to bear false witness. But there are a lot of very serious reasons why it's not smart.
But don't take my word for it. Ask any lawyer about Perjury, the risks involved, the penalties, etc.
That's not a precedent. That's the way the law already works.
The exception, and the protection for journalists and their confidential sources, are the shield and whistle blower laws. These laws are in place because it is beneficial for the public to know when there is corruption in government or accounting improprieties at corporation (etc.). The person blowing the whistle on the wrongful behavior deserves to be protected.
In this case, there was no whistle blowing. No information about illegal business practices was revealed. What was revealed were trade secrets.
My point is that requiring to know these people's identites is tantamount to presuming that they are guilty until proven innocent (especially given the entirely plausible explanation that the magazine's sources never worked for apple and they heard it from someone else just the way the magazine did). That's what I object to.
That's just your incorrect interpretation of the law. Revealing the identity of the source is in no way tantamount to presuming they are guilty. It is what it is, a revealing of an identity. If the person identified never worked for Apple, then presumably they also have a source for the information, and they will be asked to reveal it. Why is that so hard to understand?
And as I asked you elsewhere, how does this make the magazine "even more liable"? Do you know what the word means? Maybe you should check it out?
No... someone probably _did_ violate an NDA. There's no actual _proof_ of that, but it certainly is the most probable explanation.
I was right. You are a bit dim. Have you ever heard of something called "deductive reasoning"?
Let me show you an example. Five people have a secret. Let's call then A, b, c, d, and 5. Suddenly, the whole world knows the secret. Using deductive reasoning, we can prove that either A, b, c, d, or 5 (or some combination thereof) have revealed the secret. If we ask everyone where they heard it, and they name person F, then one, all or some of the original group must have told person F. (Correlation does not always equal causation, but that does not mean it never does.)
Maybe that's too much of a leap for you, and you require a video tape of someone wearing a trenchcoat to hand someone else a briefcase full of documents. Or maybe we should be dusting all the doorknobs at O'Grady's Power Page for Apple employee fingerprints.
At any rate, you need to avoid working in the field of detection.
A witness isn't required to say things, a witness is required to tell the truth. If a witness is unwilling or even hostile, they are still legally responsible to tell the truth.
You're saying it's OK to withhold evidence in this particular case? On what basis?
The websites argued that they were protected from telling the truth by the California shield laws, laws designed to protect whistle blowers that might reveal crimes and bad behavior by government and corporations. However, the judge ruled that there was no whistle blowing involved, that an interested public does not equal the public interest.
If you are a witness to either a crime or a tort, you're required to tell the truth. That's the law. Are you saying that enforcement of the law is evil?
Still, the information was wrongfully leaked at some point. If employee A leaks the info to intermediary B, who then passes the info to rumor site C, Apple can still ask the court to compel C to reveal their source, so that Apple can then ask B who A was. If B refuses to answer, they can be compelled to by the court. And so forth, until Apple learns the identity of A.
If there was no direct relation between the leaker and the publisher, there is still a chain of connections. Are you saying that such a chain shouldn't be investigated?