Apple Wins Initial Ruling (Officially)

[Maestro64]

That remains to be seen - Apple's claim of "tortious interference" seems to indicate they may have.

I agree, knowing how corporate lawyers work, this is just the first step. Once they know who did what they will take the next steps and file for loses/damages. They will tend to go after those who have the most to lose.

Loserman, I never did say TS committed a crime, all I said was that EFF is trying to make this an issue other than the one at hand which is trade secret thief and the Judge upheld that.

They need to see who sent the files and to whom they were sent. If the entire presentation file was sent with all the warnings on it then we can talk about who broke what laws. However if the person ripped the images from the presentation and pulled the text out and forward it to someone then the person who got is would not have been warned.

 

[Sayhey]

Thank you, SunBaked. These are two separate, but related cases.

For those interested in finding out more about the First Amendment and Press Shield issues in this case, I would recommend two sites:

Electronic Frontier Foundation

and a site I just ran across,

The Reporter's Privilege

 

[bit density]

BTW C is also responsible especial is they knew B was covered by and NDA. However, not if B was a stranger to C and they walked up to C on the street and gave C the information then maybe not, but if it has a warning on it, they have been legal put on notice and they are now liable for their actions.

This is also not as clear and largely has to do with intent and method.

If B gives you of their own free will to C, then C can pretty much do what they want with it.

If B is coerced or acts in concert with C then B and C are co-conspirators.

If C Steals the information from B and C knows what it is then C is bound by the fact that if not for the illegal activity of C they would not have it.

If B leaves it in their dumpster and the dumpster is on non-private property then C is allowed to discover and print whatever they want.

If the dumpster is locked???

The first question is, can they protect thier source? It would seem no. Which makes sense because otherwise there is no validity at all to trade secrets and trade secret laws. And the nature of the secret here does not have a compelling public interest to overcome the Trade Secret Laws.

The NEXT question is what was the nature of HOW they got their information. This is going to determine if they were liable for their part of the process that led to the publication of the information. IE Did the reporter act in a legal fashion?

The FINAL question will be, was publishing the information a protected act. IE Are is the Publisher or the person with Editorial control of the content responsible for the information published? Even though Apple *asked* this question it is *not* likely that this will be the case that *answers* that question. There will be little public good by answering the question, and if it ever hit the Supreme Court, the case would not be likely heard (lack of damages, or the case is not ripe).

 

[aafuss1]

Last week there were early reports that a judge had allowed the subpoena of information from three Mac sites surrounding the leak of a rumored audio product (Asteroid) from Apple.

The official result was delayed until this week.

The final outcome is the same, however. News.com reports that the final ruling came in today. The judge sidestepped the issue of whether or not it was journalism and stated that the information was "stolen property, just as any physical item".

I have to agree-some trade secrets have to be protected as it may hamper a company's plans or reputation.

 

[Maestro64]

This is also not as clear and largely has to do with intent and method.

If B gives you of their own free will to C, then C can pretty much do what they want with it.

If B is coerced or acts in concert with C then B and C are co-conspirators.

If C Steals the information from B and C knows what it is then C is bound by the fact that if not for the illegal activity of C they would not have it.

If B leaves it in their dumpster and the dumpster is on non-private property then C is allowed to discover and print whatever they want.

If the dumpster is locked???

The first question is, can they protect their source? It would seem no. Which makes sense because otherwise there is no validity at all to trade secrets and trade secret laws. And the nature of the secret here does not have a compelling public interest to overcome the Trade Secret Laws.

The NEXT question is what was the nature of HOW they got their information. This is going to determine if they were liable for their part of the process that led to the publication of the information. IE Did the reporter act in a legal fashion?

The FINAL question will be, was publishing the information a protected act. IE Are is the Publisher or the person with Editorial control of the content responsible for the information published? Even though Apple *asked* this question it is *not* likely that this will be the case that *answers* that question. There will be little public good by answering the question, and if it ever hit the Supreme Court, the case would not be likely heard (lack of damages, or the case is not ripe).

I tend to agree with what you said. I read through the court finding and the judge use a very interest term "fence" meaning that B was a go between the A and C. "A" being Apple in this case. What the judge is saying is C received stolen goods and as such is responsible. Forget about the publishing angle here, the judge is say the case is about receiving stole goods, and the case law is pretty clear on that. So Apple has every right to learn who B is,

I think the law says if it is reasonable to consider what your are receiving could have only be obtained illegally you now become responsible. This can not decided until they get their hand on B. B will reveal what exactly C knew, once this is known they can decide what corse of action can be taken.

 

[Counterfit]

The NEXT question is what was the nature of HOW they got their information. This is going to determine if they were liable for their part of the process that led to the publication of the information. IE Did the reporter act in a legal fashion?

Well, the UTSA says

(1) “Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means;

so if it was any of those, he's kinda screwed...

 

[bit density]

Forget about the publishing angle here, the judge is say the case is about receiving stole goods, and the case law is pretty clear on that.

If you go to a pawn shop and purchase something that may have been stolen, what is the case law?

If you purchase something from e-bay and it turns out to be stolen what is the case law?

If you find something on the street and it turns out to be stolen, what is the case law?

If something is mailed to you, you are a reporter, it is germaine to what you do so you publish it, and then it turns out to be stolen, what is the case law?

Receiving stolen goods is anything but clear. (Which means that there is always some good lawyerin to go on!). And I am not arguing that anyone here is *not* legally liable.

I am arguing that there are three seperate questions, and that we are only tangling with the first one. Which is can the sites protect their sources in this case. So far the answer is no. And because of the lack of extenuating circumstances regarding the information, and the lack of applicable shield laws (maybe?), it may well be no.

Once the question of who, then the question of How becomes ripe. Were the sites culpable in the trade secrets leak (regardless of who published the information).

Finally, were the editors and publishers (and in the case of a blog the writer, editor, and publisher may well all be the same natural person) liable for making the information public. The last is a lot less clear and where the first amendment is most clearly challenged. The question is, is there any *truthful* information that is not harmful to national security or the safety of the public that can result in post or prior restraint of being published? (IE, it is not libelous, dangerous, or does not fall under fair use). Generally, the answer to this question has been no. But! Apple has clearly tried to state that this question will not be relevant, because these were bloggers and not reporters. I honestly do not think the first amendment rights of bloggers will be tried on this case.

 

[bit density]

Well, the UTSA says so if it was any of those, he's kinda screwed...

Well, the UTSA says
Quote:

(1) “Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means;

Which was exactly my point. The key will be "inducement to breach." Was there money exchanged? Was there long pleading while "B" was drunk?

Or would being sorta anonomously famous be considered enough for "inducement to breach?" Is the mere existence of a site trading in the rumours and secrets of apple, and the fact that they accept submissions enough to be considered "Inducement to breach?" (which raises that whole pawn shop question again...)

 

[gwangung]

Which was exactly my point. The key will be "inducement to breach." Was there money exchanged? Was there long pleading while "B" was drunk?

Or would being sorta anonomously famous be considered enough for "inducement to breach?" Is the mere existence of a site trading in the rumours and secrets of apple, and the fact that they accept submissions enough to be considered "Inducement to breach?" (which raises that whole pawn shop question again...)

If no money changed hands, it'll be interesting to see what happened. If the info just turned up in the email box, that's one thing, but if there's a long series of negotiations, wheedling and what not, well.....that'd be interesting....

 

[coolfactor]

And I disagree with those who distinguish between stolen cars and stolen information. If you put hard work into designing something or composing some piece of music, you should be entitled to its ownership. That's why we have copyright laws and patent laws. In as far as we allow for private property, information should be protected just like tangible goods.

Exactly!! We don't pay for any "goods", physical or otherwise. We are paying for the "time" put into extracting/transporting/designing/manufacturing that good or service. It's only people's time we are paying for, nothing else. The Earth gives us everything for free.

Apple has every right to protect their trade secrets. Think Secret stepped over the line on this one.

 

[bit density]

Exactly!! We don't pay for any "goods", physical or otherwise. We are paying for the "time" put into extracting/transporting/designing/manufacturing that good or service. It's only people's time we are paying for, nothing else. The Earth gives us everything for free.

Not really. There is the actual expenditure of resources to develop other resources. In a long line of transactions we end up with things like dynamite, gasoline, and other items that are *destroyed* in the process and creation of goods.

So while I agree that you're in the right general direction, and even more true as we move close to an "information" society.

And extra credit for understanding the reasoning behind where "money" comes from under the federal reserve system (As understood by the reservests, not by the conspiricists...)

 

[Sayhey]

If no money changed hands, it'll be interesting to see what happened. If the info just turned up in the email box, that's one thing, but if there's a long series of negotiations, wheedling and what not, well.....that'd be interesting....

If you read the documents on ThinkSecret's website, you will see he denies ever paying money for information. It may well be the "inducement" is the request for information on his front page. If so, there are a lot of sites that could be sued by Apple.

 

[angelneo]

Perhaps there is something more than meets the eye? Maybe if TS reveals their source, it might make them liable to more lawsuits like conspiracy? Obviously, TS knows what they have publish is confidential and their sources are most likely breaking their NDA. How does TS get them to break their NDA? I mean would anyone be that stupid enough to jeopardize their career for some rumors site? What is in it for those sources? They don't get fame, they don't get a sense of righteousness, is there some other incentives?

 

[~loserman~]

That remains to be seen - Apple's claim of "tortious interference" seems to indicate they may have.

Don't think that falls under CRIMINAL law.

Even if Apple could win on it all they would be likely to win would be monetary damages which would force the shutdown of the site.

 

[3-22]

I Say Apple Is Wrong!

To hell with NDA and confidentiality. I for one hope a person working at my credit card company posts my social secuirity number, credit card number, and home address on his favorite blog.

Ok, sarcasm. But really, when did journalists become holy men. Yeah, you can remain anonymous and whistleblow but you can't break the law in the process.

I personally don't think Apple is after the web sites but just the people leaking trade secrets. With the ultimate goal of scaring the hell out of anyone working at Apple contemplating posting something they think cool

 

[Sayhey]

But really, when did journalists become holy men. Yeah, you can remain anonymous and whistleblow but you can't break the law in the process.

Yes you can. Sometimes, as in the tobacco cases, it is very important that those who break NDAs are protected from civil suit. In the case of some government whistleblowers, it is critical that they don't get prosecuted for violating secrecy acts. It would seem that some on these boards would like to go back and change the New York Times decision in the Pentagon Papers case. Let's throw those editors in jail for publishing what were obviously secret papers.

Not that what is reveled in these stories rises to the level of either of the two cases I've mentioned, but we shouldn't be so quick to throw away the few protections we have for reporters. No, they aren't "holy men" - they are just the individuals that make up a free press. As messy and frustrating as that is.

 

[Snowy_River]

...can the sites protect their sources in this case. So far the answer is no. And because of the lack of extenuating circumstances regarding the information, and the lack of applicable shield laws (maybe?), it may well be no.

For the record:

CALIFORNIA SHIELD LAW

THE BASICS

The California Shield Law provides legal protections to journalists seeking to maintain the confidentiality of an unnamed source or unpublished information obtained during newsgathering

WHO IT PROTECTS

The Shield Law protects a "publisher, editor, reporter, or other person connected with or employed unpon a newspaper, magazine, or other periodical publication, or by a press association or wire service" and a "radio or television news reporter or other person connected with or employed by a radio or television station." The Shield Law also likely applies to stringers, freelancers, and perhaps authors.

WHAT INFORMATION IS PROTECTED

The source of any information. There need be no assurance or expectation of confidentiality.

Unpublished information

Specific information obtained during newsgathering but not disclosed to the public

Includes "all notes, outlines, photographs, tapes or other data of whatever sort"

Includes newsgatherer's eyewitness observations in a public place

Applies even if published information was based upon or related to unpublished intormation

Protects only information obtained during newsgathering

I heard a law professor on NPR comment on this case this morning. It seems, from his analysis, that the judge in this case is actually finding the shield laws are inappropriate. I'm forced to wonder, though, how right that is, given the fact that the Shield Laws in CA are part of the CA constitution. Isn't it the judges job to uphold the constitution, not rewrite it?

 

[Snowy_River]

Not really. There is the actual expenditure of resources to develop other resources. In a long line of transactions we end up with things like dynamite, gasoline, and other items that are *destroyed* in the process and creation of goods.

So while I agree that you're in the right general direction, and even more true as we move close to an "information" society.

And extra credit for understanding the reasoning behind where "money" comes from under the federal reserve system (As understood by the reservests, not by the conspiricists...)

Well, I'd have to argue, yes really. While you're right that development of resources can consume other resources, and thus drive the price up, where did those other resources come from? Well, someone made them. So, ultimately, any resources that are consumed are just costing the work of the people who prepared that resource. Thus you are simply paying for the labor, if you follow the construction path down far enough.

 

[MontyZ]

The encroachment of rights and freedoms is usually gradual and actually supported by a majority of the population out of ignorance. If the drip continues, eventually the freedoms we still have today will be slowly drained away. Then when the lake is dry, those of you who think this lawsuit is justified will wonder where all of your own freedoms and justice went should you or a family member eventually become a target. I guess you also agree with the recent changes to the bankrupcy laws (heavily lobbied by credit card companies who benefit most), and that social security should be abolished because it's "broken." Meanwhile, bring on more tax breaks for the rich and make them exempt from all the new laws being passed.

Sadly, this seems to be par for the course in this country over the last 4+ years. The Apple case is just another small example, but, is one more drip that will gradually lead to handing over even more power to big corporations which the Republicans in our government are all too happy to do.

It won't seem like such a small deal a few years from now when Capital One practically owns you.

 

[timster]

This judge is way out of his league.

Yeah, what do stupid judges know about the law.



Now go tidy your room.

 

[timster]

To hell with NDA and confidentiality. I for one hope a person working at my credit card company posts my social secuirity number, credit card number, and home address on his favorite blog.

Cool, just done it. www.Think3-22.com

Now you'll have nothing to announce at your keynote. Nyah, nyah!

 

[wdlove]

I think that it is very important to protect intellectual property. Just as we protect physical property. Most of the problem in this case has to do with ethics and morals.

 

[~loserman~]

I think that it is very important to protect intellectual property. Just as we protect physical property. Most of the problem in this case has to do with ethics and morals.

I agree that it is important to protect intellectual property. I also think the pendulum of the scale of justice is leaning out of balance right now. Lately courts are having a hard time ruling on IP and have been finding to much in favor of the plaintiffs.

I'm not sure whether the current ruling is good or bad. Sometimes I have a hard time supporting a Journalist "right" to protect their sources.
Same as the Priest or Lawyer. For example if someone admits a crime to a Priest I think he should turn them in and think the confession should be admissible. But thats just my opinion

 

[Lacero]

I disagree with the ruling. ThinkSecret should be allowed to keep their sources confidential, and there are ways for TS to do so, even in paper or electronic form.

 

[macnulty]

As someone who is minioring in journalism I am really appaled by this court ruling. Between this and the CIA leak investigation, has everyone forgotten the importance of being able to keep your sources secret. Well now it looks like we will only be publishing what the administration in Washington, and any influential corporation feels is acceptable. I am not sure if the Harvard student who runs think secreat is willing to sit in jail to make a point about free speach and journalism.

How do you associate Apple Computer and the "administration in Washington"? Journalists do not have a divine right to publish whatever they feel like publishing. How about your personal financial records or health records? After all if a journalists acquires them, you should have no objection in them being published.