Apple Wins Initial Ruling

[digitalbiker]

Give me a break!

Sorry, but prudent competitors most certainly ARE looking at rumor sites.

This is paranoia at it's best! Give me a break you don't really believe that do you? We are not talking about national security secrets. We are talking about a computer company that has about 3% market share making a peripheral that probably only 10% of the Mac users care about.

A prudent competitor would have to have market studies, at least 3 - 4 years in advance. This would allow design teams to engineer a prototype device, which would then have to be priced for mass production, which would require marketing, etc. etc.

I am really sure Sony execs are carefully following Apple Insider or Think Secret to decide on their next big product. Besides Apple bombs with their designs as often as anybody else.

 

[MontyZ]

Jeez, the way some of you are talking, you'd think Apple's new products were more sensitive than national security information. Lately it seems that it's okay to reveal the name of an undercover CIA operative, but criminal to reveal a new product release from Apple.

What bullsh*t!

Now we know why Apple needs to charge a premium for their hardware: to pay the army of lawyers necessary to sue everyone in sight.

Apple and the RIAA - a match made in heaven.

 

[gwangung]

And apparently the entire concept of the chilling effect through legal intimidation is completely lost on you. Well, at least we know who here is for legal extortion.

Sorry, but my idea of news is not for the public to be hand-shoveled highly-prepared corporate press releases, but clearly you disagree.

Sorry, but you don't get there from what I said.

When dealing with private individuals, journalists DO stop and think about how far they should go. It's not an automatic publish and go.That's just lazy journalism. And the First Amendment does not protect lazy journalism.

If a journalist broke the law in getting their story (say, doing some breaking and entering to get at information), the journalist will have to take responsibility for the illegal acts done in getting that story. Or are you saying that journalists have a blanket immunity in getting their story?

Let's use anouther example. If someone plopped the source code for OS X (Darwin and all the user interface tools) on a website's email, would you be arguing that the site could get off scott free in publishing it? No, the journalist would be exercising judgement in knowing that proprietary information was involved here and he would not be protected in publishing it. And I think a court would grant a supoena in trying track down the source of that data. There's certainly a chilling effect involved in this case, but I think it's one that passes constitutional muster.

 

[gwangung]

This is paranoia at it's best! Give me a break you don't really believe that do you? .

I deal with competitive intelligence people. And they indeed do that.

But go ahead and keep your illusions; you'll get your lunch eaten out in the business world.

 

[fixyourthinking]

I deal with competitive intelligence people. And they indeed do that.

But go ahead and keep your illusions; you'll get your lunch eaten out in the business world.

The Creative CEO is reading this VERY site every day - you can almost garantee it. So, Hi!

He said he would do WHATEVER IT TAKES to get ahead of Apple in the Mp3 player market - EVEN IF it meant failure and bankruptcy!

 

[nsb3000]

Your missing the point

Double wrong.

It is not the "journalist's" activities that are being attacked, it is something in their possession. If I have a computer that I bought legally from someone, but they stole it, is that computer mine? No. Do i have any recourse other than to hope i can get my money back if they catch the guy I bought it from? No.

Right, see this augment sounds good, I suppose, but has nothing to do with the case at hand. You might think this is the way the law should work, but that is quite different from implying that this is how it actually works.

Your reading of the law suggests that journalists are sacrosanct and can never be held accountable for anything. There is lot's of FEDERAL precedent (including a couple recent terrorism cases) that suggest otherwise.

Care to cite your cases? The closest thing that comes anywhere to close to what you are describing is the whole Valerie Plume affair, which is still being litigated. Besides that, there is a long history of cases protecting Journalist from revealing their sources. The question here, is not wether journalists are protected from revealing their sources, as both sides accept this, but wether sites like Think Secret qualify as real journalists. It seems pretty clear to me that they do, and although I was surprised by today's ruling, I think it will almost certainly be overturned on appeal.

FYI - federal law trumps state anything.

Wrong again. I recommend reading the 9th and 10th amendments to the constitution.

 

[latergator116]

Sorry, but you don't get there from what I said.

When dealing with private individuals, journalists DO stop and think about how far they should go. It's not an automatic publish and go.That's just lazy journalism. And the First Amendment does not protect lazy journalism.

If a journalist broke the law in getting their story (say, doing some breaking and entering to get at information), the journalist will have to take responsibility for the illegal acts done in getting that story. Or are you saying that journalists have a blanket immunity in getting their story?

I don't see where you are getting at. Did Thinksecret break a law by obtaining the story?

BTW, what exactly did thinksecret post about Aestroid?

 

[nsb3000]

California Shield law Basics

A lot of people on this thread seem to be under the impression that if someone commits a crime (or breaks a contract) by disseminating information, it is then illegal for the media to publish that information, and that further, the people that publish the information must reveal their sources in order to aid with the prosecution of the original crime. This makes a certain amount of sense, but it is just not how the law works, both at the federal level (it is known as the "Reporter's Privilege") and the California State level, because of its shield law.

Here is some basic info about the California Shield law that I stole from here, which I thought would useful to clear up these misconceptions.

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

WHAT IT PROTECTS FROM

The Shield Law only protects a journalist from being adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for the failure to comply with a subpoena. The Shield Law does not protect the journalist from other legal sanctions. Thus the Shield Law generally does not apply when the journalist or news organization is a party to a lawsuit and other sanctions are available.

EXCEPTIONS

The Shield Law is a provision of the California Constitution. Therefore, there are no statutory exceptions.

However, the California Supreme Court recognized a situation in which the Shield law provides only qualified, not absolute, protection from contempt

When the information is sought by a criminal defendant or upon cross-examination by the prosecution if the journalist has testified for the defendant. In this circumstance, the defendant's federal 6th Amendment right to fair trial preemepts the state constitutional shield law. Delaney v. Superior Court, 50 Cal.3d 785 (1990); Miller v. Superior Court, 21 Cal4th 883 (1999); Fost v. Superior Court, 80 Cal.App.4th 724 (2000).

In this situation, a journalist may be subject to contempt for not disclosing information if:

1. The defendant demonstrates a reasonable possibility that the information with materially assist the defense; and
2. The defendant's fair trial rights outweigh the journalist's rights. In deciding this, a court will consider:

A. The degree of importance of the informaiton to the defendant
B. Whether the information is otherwise available from another source and the defendant has attempted to obtain it.
C. If testifying would hinder the newsgathering ability of the reporter
D. If the information is confidential or sensitive

If the court does order disclosure of the information, it must:

1. Give the reporter 5 days notice before a contempt citation witll be issued
2. Issue a written order

Note: Disclosure of information under these conditions does not constitute a waiver of the right to assert the Shield Law for the same information in the future

 

[Sun Baked]

If Apple cannot sue, then that means private citizens would be exempt from seeking to have their stolen private information that shows up on blogs removed also.

How would you like it if you are Fred Durst and your sex video was stolen off your computer and sold on the net (he'll likely win because they tried to extort money first.)

But if they had offered it free on the blog site first before removing it to a pay site... he wouldn't have a case according to some because the blog did nothing illegal, and they should be protected.

Heck...

Should they be offered the same protection if they charged you for access to their blog?

Should they be offered the same protection if they make money off the stolen information through other means?

 

[txcraig75]

Care to cite your cases? The closest thing that comes anywhere to close to what you are describing is the whole Valerie Plume affair, which is still being litigated.

Its not being litigated, atleast not yet. Last I heard the Special Counsel had completed his depositions of the journalists but no indictments have been handed down.

Besides that, there is a long history of cases protecting Journalist from revealing their sources.

Actually you couldn't be more wrong. Granted it is generally the policy of governments to not require journalists to divulge such information unless the information cannot be aquired by other means, but that, by no means, means that journalists have special privileges. It is important that the press be independent of government and that government not rely on journalists to be investigative arms of the government, but courts have regularly required journalists to turn over notes and other information when the situation warrants. It is a balancing act that has tended to not favor the journalist. See for example Branzburg v Hayes stating "It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. The Court has emphasized that '[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.'" (quoting Associated Press v. NLRB, 301 U.S. 103, 132-133 (1937)) See also the recent case of Vanessa Leggett. Google her name and see that case history.

The question here, is not wether journalists are protected from revealing their sources, as both sides accept this,

No, both sides don't. Journalists tend to believe they have special rights over and above normal citizens. They don't. And before you claim I'm biased against the media, I was a newspaper editor in high school, worked as a freelance reporter for a major Texas newspaper and some specialty publications, have worked in media relations in the sports world and currently work in media directory publishing.

but wether sites like Think Secret qualify as real journalists. It seems pretty clear to me that they do, and although I was surprised by today's ruling, I think it will almost certainly be overturned on appeal.

Here we agree. The definition of press should be expansive and the term "journalists" very reasonably should include web publishers and bloggers and publications should include blogs and web sites that author and/or publish news, features, editorials or any combination thereof. But the shielding of journalists and their sources must serve the public good and outweigh the interests of the other party, whether it be a government entity, an individual, group of individuals or a corporation.

 

[txcraig75]

Here is some basic info about the California Shield law that I stole from here, which I thought would useful to clear up these misconceptions.

As I previously pointed out, the California constitutional law only applies to a contempt citation. ThinkSecret.com is an actually party to the suit (i.e. Apple is suing ThinkSecret.com in addition to the John Doe that leaked the info to ThinkSecret) and can thus have a liability judgment against it. The Shield Law doesn't protect ThinkSecret against that as the site you pointed to confirms.

 

[fossyy]

Expecting the sack

Awesome, not one, but two people who think case law and constitutional precedent stood still after the 18th century!

This decision by the judge is extremely bad for the public, and for people who publish rumors from non-government confidential sources. While Apple fanboys may like this decision, Apple NDA's aren't worth the paper they're printed on - look up the case law on enforcing commercial NDA's (including Microsoft, SCO, and Rambus) if you don't believe me. This decision is also bad because while the Apple leaks led to early knowledge of upcoming products, this precedent can also be used by Company A to force web publishers to cough up the names of sources who revealed Company A's illegal trade practices, environmental violations, or labor abuses.

In short, while Apple may benefit a little about keeping upcoming product debuts secret, companies who are a great deal more malicious than Apple will benefit from this decision by being able to track down the confidential sources who revealed Bad Activity A, B, or C and then fire and sue them into oblivion.

Of course, you may feel that's OK.

Not expecting the sack shortly are u mate.

 

[Squire]

Okay, those of you who think this is a good thing Apple is doing, how does this possible scenario sit with you:

MacRumors happens to guess a future Apple product release correctly, say the 2-button wheel mouse. Apple actually releases a 2-button wheel mouse, and then promptly sues MacRumors to find out who gave them this information. MacRumors is forced to turn over all information they have about all of you to Apple lawyers. MacRumors has to hire expensive lawyers to defend itself, only for Apple to discover the info didn't come from some current or former Apply employee, it was just a good guess. By this time, MacRumors has racked up $20,000 in legal bills.

This is exactly what can happen if this lawsuit goes forward. It will set a dangerous precedent for companies to sue anyone if they hint at or guess future product releases, even if they just used a crystal ball to divine it. This type of lawsuit becomes a weapon, a way for a very rich company like Apple to financially ruin someone who is not rich, whether or not the accused is innocent or not. It happens every day in this country! The legal system in the USA is only fully accessible to the rich who can afford to hire $300+/hour lawyers.

The point is, how can Apple know for sure that the "rumor" was divulged by someone under contract or just a good guess? Does this still give them the right to sue anyone or everyone who makes a guess at their next new product? Maybe the responsibility rests on Apple to improve the way they guard their trade secrets instead of blaming and suing others for their own incompetency.

(Bold added)

Apple can most definitely spot the difference between an accurate guess and the posting of a trade secret. Take a look at the language here:

EXCLUSIVE: Apple to drop sub-$500 Mac bomb at Expo
December 28, 2004 - With iPod-savvy Windows users clearly in its sights, Apple is expected to announce a bare bones, G4-based iMac without a display at Macworld Expo on January 11 that will retail for $499, highly reliable sources have confirmed to Think Secret.

The new Mac, code-named Q88, will be part of the iMac family and is expected to sport a PowerPC G4 processor at a speed around 1.25GHz. The new Mac is said to be incredibly small and will be housed in a flat enclosure with a height similar to the 1.73 inches of Apple's Xserve. Its size benefits will include the ability to stand the Mac on its side or put it below a display or monitor.

They posted specs, a code-name, and a price. Pretty accurate, isn't it, for 2 weeks before the product's debut? Sure you can guess some details but what ThinkSecret posted was obviously not meant for the general public.

Some of the argument seems to be whether or not they are performing real journalism. Can part of what a person (or site, organization, etc.) reports be considered realjournalism, and part of it not?

Squire

 

[Lacero]

ThinkSecret, time to buy some shredders and a can of kerosene.

 

[Counterfit]

For those of you saying ThinkSecret should be protected, and that Apple has little/no case or is just flat wrong, have you actually read the UTSA? (PDF version)

SECTION 1. DEFINITIONS. As used in this [Act], unless the context requires otherwise: (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; (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 had 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 [or her] position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

 

[Sjakelien]

Apple should stop legal actions

They're fighting with their own people. I love to read these rumor sites, and I'm a big Mac/Apple fan, but I get a bad, microsoftish feeling about Apple's legal actions.
Let's sign the online petition:
http://www.petitiononline.com/mod_perl/signed.cgi?APPL666

 

[broken_keyboard]

They're fighting with their own people. I love to read these rumor sites, and I'm a big Mac/Apple fan, but I get a bad, microsoftish feeling about Apple's legal actions.
Let's sign the online petition:
http://www.petitiononline.com/mod_perl/signed.cgi?APPL666

No, ThinkSecret knows what they are doing is wrong.

 

[Squire]

No, ThinkSecret knows what they are doing is wrong.

Not only that, but they are likely profiting from it. Sure they have a large base of regular users, but if it's anything like MacRumors, the number of people perusing the site in the days leading up to an Expo significantly increases. I don't know how the different banner ads generate revenue but if it's a per click basis, that's some decent cash. Even if it isn't, the ads do cost some money.

A small point but significant nonetheless.

Squire

 

[fixyourthinking]

They're fighting with their own people. I love to read these rumor sites, and I'm a big Mac/Apple fan, but I get a bad, microsoftish feeling about Apple's legal actions.
Let's sign the online petition:
http://www.petitiononline.com/mod_perl/signed.cgi?APPL666

Instead, let's sign this one:


http://www.petitiononline.com/0515opts/petition.html

 

[fixyourthinking]

Not only that, but they are likely profiting from it. Sure they have a large base of regular users, but if it's anything like MacRumors, the number of people perusing the site in the days leading up to an Expo significantly increases. I don't know how the different banner ads generate revenue but if it's a per click basis, that's some decent cash. Even if it isn't, the ads do cost some money.

A small point but significant nonetheless.

Squire

From the various sources that I have had investigating my Jackwhispers website and the information I have collected about Think Secret, The Powerpage, and AppleInsider - I was told Think Secret is in the high five figures. If anyone lives in New York, I can show you how to find out for us.

The ads aren't just pay per click - some [read as more than half] around expo time were outright banner space purchases. Think Secret was in the top 25 websites visited for a few days around this expo.

 

[FFTT]

In general, the written contributions to these forums are meant to evaluate the best available industry knowledge to help the consumer make an informed purchasing decision.

By doing so, we are collectively telling Apple and the general public that we
expect only the best from Apple and that we will not support outdated or inferior products.

We should not be faulted for being challenged by Apple's extreme secrecy policies.
We also can not blame industry analysts for following the content of these
forums to make their business predictions and forecasts.

If our collective knowledge and input helps Apple develop better products,
then everyone gains.

If Apple feels threatened by public scrutiny, then perhaps they should work
more closely with their loyal user base to avoid costly errors of judgement.

 

[fatchuck]

No, ThinkSecret knows what they are doing is wrong.

Of course they do. Really. By the way, did you hear about the newest Apple product they leaked info about? Looks dead-on, and something you're sure to buy.

 

[gmanrique]

And why is not good?

Well, that's not good. 😡

What is the reasoning for such statement? 😕

 

[macnulty]

It's really cut and dry ... Think Secret solicits for information by phone number SPECIFICALLY for those that have information under non disclosure. This doesn't necessarily make what they publish illegal ... but the course of action it takes to get this information - is easily equatable to accessory to crime.

Apple also should (and most likely WILL win this case) based on the fact the UTSA was clearly broken. The Uniform Trade Secret Act says that you can not report trade secrets if you know they are such.

Lastly, they should win on copyright alone ... most everything Think Secret reports is under strict copyright/patent protection and is not given permission to reuse. (The only case this is so - is if one were to use USPTO.GOV info)

Nail to head, but also missing from many articles is this:

"Apple maintains that California's Shield Law, which protects journalists from being forced to reveal sources, should not apply to Internet sites. In addition, the firm stated in court filings that free speech protections likewise should not apply to the three Internet sites."

If California's "Shield Law" is part of the argument, should it be interpreted to apply to journalists in Massachusetts?

 

[Dippo]

No, ThinkSecret knows what they are doing is wrong.

Yall people are all brainwashed.

Thinksecret didn't sign any NDA. I don't care if they paid someone off who did sign an NDA, it's not Thinksecret's fault that Apple shares info with people who are easily paid off.

If Apple win, it would be bad news for all.