ThinkSecret Gets Legal Representation

[GFLPraxis]

Employees should be fired or dealt with severely.
Even if ThinkSecret offered them money, that doesn't mean that the Apple Employees HAD to take the cash to talk.

Apple would be biting the hand that feeds them if they shut down all the Apple Rumor websites. Because of these places, I get excited for new things and get others excited too.

It's called bribing. If I pay a cop off not to get me in trouble for something, well, he didn't have to accept the money, so why should I get in trouble for it?

 

[GFLPraxis]

As for the Mini. Oh BS. Nothing has been marred other then Jobs getting to surprise the world. So someone with an overblown ego gets his bubble burst. Oh boo hoo.

It's interesting that just this last week I've seen a lot more commercials advertising $499 and $449 systems from Dell and HP. Including $100 limited time discounts just to reach that price. That may very well be in response.

 

[Sun Baked]

Don't know if adzoox has figured out how closely the forum is tied to the dePlume Organization in his investigations into ThinkSecret.

But one of the members on that site decided it's ok to publish pages from Apple/IBM-related technical documents to prove that they had the real stuff on what processors Apple would likely be using in the future.

They've also been rather silent since the January lawsuit hit the streets.

Leaking enough facts and info is bad enough, but actual pages, pictures, and documents isn't too good an idea -- remember we did get the Apple Service Manual page dumped onto the rumor sites of the iMac G5-based PowerMac before the Rev. B PowerMacs arrived.

 

[CandyApple]

Originally Posted by Tulse
(b) "Misappropriation" means:
** (1) 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
** (2) 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 or her knowledge of the trade secret was:
** (i) Derived from or through a person who had utilized improper
means to acquire it;
** (iii) Derived from or through a person who owed a duty to the
person seeking relief to maintain its secrecy or limit its use;

Now, I am not a lawyer, but as that reads to me, Nick is in trouble simply if he published material he had reason to believe came from someone violating an NDA...

Good Post, Tulse. I think these definitions help Nick, rather than hurt him, however. The key words are "without express consent" and "improper means".

The person who acquired the trade secrets probably did not do so through "improper means" (i.e. Hacking a computer, stealing from the dumpster, hiding in an air duct over the boardroom🙂, etc.). This person most likely had proper access to the info. Now giving that info to Nick is of course a violation of his NDA, but Nick has no NDA with Apple. So, it seems as though Apple would have to prove that Nick knew his informant was improperly acquiring this info (again, stealing), and that seems like a difficult thing to prove. After all, it would be pretty easy for Nick to assert that he believed his guy had acquired the info through proper means, which I'm sure many high-level Apple employees could do.

Under 2, it says you are in trouble if you used the disclosure "without express/implied consent" by a person under conditions A-B i-iii. But Nick does have implied, if not express consent, from these people/person who submitted the info.

So with these bases clear (and at least I think they are), I believe it to be a first amendment issue. And I believe that Nick will be protected under that that amendment.

The only caveat would be if Nick paid his informants, which would be a criminal activity. And just to add some fuel, I don't think that a scenario like this is too far out there. Think about it. Nick pays informant --> Nick gets secrets --> Nick posts secrets on website --> Traffic comes to Nicks website to view secrets --> Companies pay Nick to advertise to said traffic ---> Nick makes money.

Do I think that this was the case? Probably not, but it wouldn't be earth-shattering if it was.

As more details emerge, this one should get interesting.

 

[gwangung]

Good Post, Tulse. I think these definitions help Nick, rather than hurt him, however. The key words are "without express consent" and "improper means".

The person who acquired the trade secrets probably did not do so through "improper means" (i.e. Hacking a computer, stealing from the dumpster, hiding in an air duct over the boardroom🙂, etc.). This person most likely had proper access to the info. Now giving that info to Nick is of course a violation of his NDA, but Nick has no NDA with Apple. So, it seems as though Apple would have to prove that Nick knew his informant was improperly acquiring this info (again, stealing), and that seems like a difficult thing to prove. After all, it would be pretty easy for Nick to assert that he believed his guy had acquired the info through proper means, which I'm sure many high-level Apple employees could do.

Under 2, it says you are in trouble if you used the disclosure "without express/implied consent" by a person under conditions A-B i-iii. But Nick does have implied, if not express consent, from these people/person who submitted the info.

So with these bases clear (and at least I think they are), I believe it to be a first amendment issue. And I believe that Nick will be protected under that that amendment.

The only caveat would be if Nick paid his informants, which would be a criminal activity. And just to add some fuel, I don't think that a scenario like this is too far out there. Think about it. Nick pays informant --> Nick gets secrets --> Nick posts secrets on website --> Traffic comes to Nicks website to view secrets --> Companies pay Nick to advertise to said traffic ---> Nick makes money.

Do I think that this was the case? Probably not, but it wouldn't be earth-shattering if it was.

As more details emerge, this one should get interesting.

Yeah, details will determine what will happen, but your legal reasoning won't hold up. It's going to be fairly easy to determine if Think Secret knew or had reasonable cause to know if the information was a trade secret--"don't ask, don't tell" doesnt work here...Certainly, it's going to be easy to show that he did NOT have implied consent to use the material, as his leak was NOT authorized to release that information.

 

[Sun Baked]

CandyApple,

Well if he got the trade secrets through a breach or inducement of a breach of a duty to maintain secrecy -- he got them through "improper means"

And he seems to have gotten them from somebody that breached and NDA, whether or not he induced somebody to make a breach cannot be seen from the scant info we have now.

If you want to see how all this works in a case that's already been litigated, try dvdccabnnr82503opn.pdf

 

[Tulse]

CandyApple, thanks for your post -- I think it makes sense to talk about the actual law.

However, my reading is very different from yours, largely because I think the terms you cite apply to different parties than you do. Regarding "improper means", I think that Nick would count as the person acquiring the trade secret, and he indeed presumably "knows or has reason to know that the trade secret was acquired by improper means", that is, NDA violation.

As for "express or implied consent", it's pretty clear that to me that that refers to the consent of the company whose trade secret it is, and not merely the possessor of the information, such as an employee. Otherwise, it would be legal to publish information from someone who knowingly violated an NDA, but not legal if they gave the information inadvertently, and that just doesn't make any sense to me. Also, it seems clear that the trade secret belongs to the company, and not whoever happens to know it, and thus the company would be the "another" referred to in 2, from whom consent is needed.

And thanks to Sun Baked for finding some case law on the topic -- I think it clarifies things quite a bit.

 

[applekid]

Even if Nick didn't bribe someone, he still likely broke the law. The relevant portion of the California Uniform Trade Secrets Act says:


Now, I am not a lawyer, but as that reads to me, Nick is in trouble simply if he published material he had reason to believe came from someone violating an NDA, or terms of employment, or from someone who illegally obtained the information through other means, or even from someone who mistakenly or inadvertently passed along material that was under an NDA.

In other words, Nick didn't have to use any sort of coercion. He could have found this information in an employee's journal in a dumpster ("derived from...a person who owed a duty...to maintain its secrecy"), and it would still have been illegal to publish it.

I suppose one can argue First Amendment freedoms against the law in general, but since almost every state has a UTSA, I would guess that the constitutionality of these provisions have already been tested.

I would appear to me that Nick's only real defense is that he didn't know the material was under NDA, but given that this is Apple, and that Nick runs a rumours site, I think it would be hard for him to maintain this position.

You brought up some interesting points. I suspected there was some sort of law along the lines of "misappropriation" that would protect Apple's right to secrecy.

dePlume is still innocent until proven guilty. I guess this will be an interesting case to follow. Keep us posted, Macrumors. 🙂

 

[SeanMcg]

His own Alumni didn't help him...

I wasn't at all surprised by how soon a lawyer came to his aid. Lawyers like high profile cases. Due to the prior assertion of the owner he doesn't have any money, so it must be pro bona. It will be interesting to see how all the legal issues turn out.

While I don't think this case will be dismissed, and I do believe TS/dePlume has some level of culpability, I don't know all the details and agree with those who say we should let the courts handle it.

But that wasn't what I found interesting about this item. I was immediately struck by the fact that this Harvard student wasn't immediately represented, pro bono, by a Harvard Law graduate.

Draw your own conclusions. It just seemed significant to me.

 

[Counterfit]

Draw your own conclusions. It just seemed significant to me.

A Harvard grad doing something pro bono? Call me jaded, but that just doesn't seem possible to me 😀

 

[Longey Nowze]

hmmmm

Remember a while there was a Fox news reported planted with some troops over at Iraq? he supposedly gave out secrets and plans about what the troops were planing? he got into trouble? isn't this the same thing but with out the bloodshed?

or what if I'm a reporter that found out the the gov is going to bomb country X on the 15th and on the 14th I published this with how and where they are going to do it... it's not my fault STOP CALLING MY A SPY OR TRATOR! it's the idiot who told me about it why didn't he keep his mouth shut? I was just being a good reporter first amendment! I can't tell you who it is!

I see it as being something like this... and I think Apple only wants to know the names of the sources who broke the NDAs and I think they have the right to ask! you don't want people who can't keep their mouths shut do you?

 

[gwangung]

While I don't think this case will be dismissed, and I do believe TS/dePlume has some level of culpability, I don't know all the details and agree with those who say we should let the courts handle it.

But that wasn't what I found interesting about this item. I was immediately struck by the fact that this Harvard student wasn't immediately represented, pro bono, by a Harvard Law graduate.

Draw your own conclusions. It just seemed significant to me.

Um, ever been in law school? At an Ivy League?

Not sure they have time to scratch their own butt, let alone take on a a pro bono case (Not that this case would fall into something you'd WANT a law student to take pro bono.....)

 

[angelneo]

I had just skimped through the thread so i am not sure if someone had made this point.

I agreed that if Nick obtained his information illegally then he would be in trouble and the fact that nothing has been proven yet. but how about the fact that he knew he had obtained trade secrets and even though it may have been given by someone willingly, he knew that they had violated their NDA and he knew that this information had nothing to do with public welfare and he published the information knowingly that the person who give it to him has violated their NDA.

Its just like this forum, if someone post anything about warez, obtaining pirated materials even though the information is given freely or "illegally", the mod would wastedland/delete their post. This is because that they knew that it is illegal to pirate materials and that the source is illegal in the first place. Nick knew as well that they had violated their NDA. Yet he did nothing against it and aid them in publishing the information. What's the difference? Well, he can act dumb and pretend that he didnt know that they have violated their nda.... but come on, he's from havard (if i remembered correctly)

I'm guessing this would be different if the information involved is important to the public welfare or other parties' survival.

I'm not siding with anyone just asking out of interest if this point is valid

 

[angelneo]

Remember a while there was a Fox news reported planted with some troops over at Iraq? he supposedly gave out secrets and plans about what the troops were planing? he got into trouble? isn't this the same thing but with out the bloodshed?

or what if I'm a reporter that found out the the gov is going to bomb country X on the 15th and on the 14th I published this with how and where they are going to do it... it's not my fault STOP CALLING MY A SPY OR TRATOR! it's the idiot who told me about it why didn't he keep his mouth shut? I was just being a good reporter first amendment! I can't tell you who it is!

In the first place, shouldn't reporters should have their ethics? if the reporter give information knowing that it endangered national security, isn't that unethical? I mean it is worse in this case as it might cost the lifes of your fellow americans.

 

[absolut_mac]

To quote DaveC again...

never, ever sue poor people -- they have nothing to lose and you have nothing to gain.

IMHO as I mentioned in another thread on this subject, this is a lose, lose situation for Apple.

The only question is how much they lose before Steve has the good sense to reign in that bloated oversized ego of his and bring this stupidity to an end.

Yes Steve, go and nail that Apple traitor who is selling you out by spilling the beans on your *closely guarded secrets*. But no Steve, this is not the right way to go about doing it.

Time to sit back and enjoy the entertainment regardless of whether it's short and sweet, or a long and messy affair 🙄

 

[Rod Rod]

Read on because I do not see MacRumors, MacOSRumors, or AppleInsider in the same light as Think Secret:

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


I started this petition because of the petition for Apple to drop the lawsuit against Nick Ciarelli.

<snip>

One of your main conclusions is that ThinkSecret's publishing of rumors hurts Apple stock. As this is contrary to empirical evidence, what are you left with?

As petition signatory #38 states, "I think apple should pursue those that broke their NDA's not Nick dePlume. I am an apple shareholder. I have seen apple's ahres skyrocket this past year. the rumors help. haven't you heard the old addage, buy on rumor. sell on fact. nick's work helps apple."

As petition signatory #75 states, "Because a web based petition created by a smeghead apple sycophant in South Carolina is really going to motivate Apple Inc. to persecute a young adult for exposing their panties."

Further, understand that this ALL hurts Apple's relations with developers. I doubt seriously if I would want to be involved with Apple if I had something they wanted or wanted me to cooperate with them on. It's too much drama.

You've got nothing to worry about. Apple won't be knocking your door.

This lawsuit helps Apple's relations with developers. The message the lawsuit sends, and the one point on which both supporters and detractors of the lawsuit agree, is that Apple takes NDAs very seriously. In other words, the message is, "don't violate your NDA."

 

[SeanMcg]

Um, ever been in law school? At an Ivy League?

Not sure they have time to scratch their own butt, let alone take on a a pro bono case (Not that this case would fall into something you'd WANT a law student to take pro bono.....)

I said

...wasn't immediately represented, pro bono, by a Harvard Law graduate.

You're absolutely right about the demands on a law student. If The Paper Chase is anywhere near true, then no law student would have the time. And you are also right that you wouldn't want a law student taking this case.

But one would think, after the article in The Crimson, which I'm sure some Alumni get, that a Harvard Law graduate would have the time, money, and (according to Harvard grads at least 😉 ) the talent to do this.

 

[ASP272]

ThinkSecret has nothing to worry about. This is no Metallica vs. Napster case. ThinkSecret is a journalistic venue and on that grounds would not be liable for freedom of press - in releasing information others breached contract to disclose - especially since ThinkSecret would not have known the disclosed information was a trade secrect for sure (hence the "rumor site" classification). As I and many others have stated, Apple should just accept these rumor leaks as free publicity around the world. If they had kept their mouth shut noone would have even known the rumors were true. After the information is released to the public they should then pursue an internal investigation into those which leaked the information.

 

[Longey Nowze]

Ethics!

In the first place, shouldn't reporters should have their ethics? if the reporter give information knowing that it endangered national security, isn't that unethical? I mean it is worse in this case as it might cost the lifes of your fellow americans.

Exactly! ETHICS! dePlume knew they were giving out secrets and he knew that they had access to secret info and I assume he's smart enough to know that they are under NDAs he could've been smart and been a little more vague about it... what are they people under NDAs getting out of telling him all this info?! are they getting paid? what is he getting out of it? I were in the same situation I wouldn't give out trade secrets not for free!

 

[fixyourthinking]

More on the "Save Nick, Sue Nick" petitions

One of your main conclusions is that ThinkSecret's publishing of rumors hurts Apple stock. As this is contrary to empirical evidence, what are you left with?

As petition signatory #38 states, "I think apple should pursue those that broke their NDA's not Nick dePlume. I am an apple shareholder. I have seen apple's ahres skyrocket this past year. the rumors help. haven't you heard the old addage, buy on rumor. sell on fact. nick's work helps apple."

As petition signatory #75 states, "Because a web based petition created by a smeghead apple sycophant in South Carolina is really going to motivate Apple Inc. to persecute a young adult for exposing their panties."


You've got nothing to worry about. Apple won't be knocking your door.

This lawsuit helps Apple's relations with developers. The message the lawsuit sends, and the one point on which both supporters and detractors of the lawsuit agree, is that Apple takes NDAs very seriously. In other words, the message is, "don't violate your NDA."

Stock data FOR THIS QUARTER is skewed due to iPod holiday sales. Look at the stock and the inventory problems Apple has just before expos. Why do you think Apple is TRYING VERY HARD to get away from expo only announcements? Because - if they had continued, the rumor sites would continue to steal any thunder that Apple had at all. Also, Apple is in a unique position in the computer industry right now - where anything they do can ride the success of the iPod. Other companies are literally falling ALL OVER rumor sites trying to find out anything they can - it's nothing short of corporate espionage.

As for the dozen or so fake signatures that are on the petition; there are literally hundreds on the "save nick petition" that are fake. Steve Ballmer and Bill Gates signed it too with similar hate messages.

I knew when I created it - that it was somewhat flamebait. But the "save nick" petition is the most ridiculous thing I have seen come out of this debate. (what does his being a college student and being 19 have anything to do with the issue; for instance?)

It may NOT be right for Apple to pursue this from a PR perspective, but business is not about PR and it's not about bottom lines. It's all about integrity and responsibility. Any business that has those two characteristics will be a success no matter what market revelation.

Shame on Think Secret and shame on any one who agrees what they have done is ethically or legally appropriate. And certainly; shame on Think Secret for making Apple customers even discuss this issue to begin with.

Many who consider Think Secret in the clear, aren't considering the points that I have brought up in this forum or others. It bothers me that Think Secret became a lot more accurate just as Elite Computers and Macadam declared "WAR ON APPLE". It bothers me that Think Secret has initimate knowledge of this reseller lawsuit. It bothers me that Think Secret mixes obviously true stories like this, partially true stories like the MacMini, and completely inaccurate rumors like iPod Mini's with 2GB & stripes and starting at $99. It bothers me that they are unlike ANY OTHER rumor site that seems to report gossip. Instead Think Secret quotes sources as "deep with inside Apple" They also solicit for rumors via a phone number. You HAVE to know that anyone who gives such information is under NDA.

Macrumors sometimes bases rumors on reader submissions of patents and FCC approvals - I see nothing wrong with that. Macrumors also aggregates rumors - I see nothing wrong with that. Macrumors watches other website changes - such as Cassidy & Greene's Soundjam becoming iTunes or the recent iWork hand changes. Macrumors sometimes makes guesses based on release dates and refresh periods - again - I see nothing wrong with that.

As Mac lovers - we are all being taken advantage of because we are so interested in Apple that we cease to have any respect to their right to privacy and corporate integrity.

Before you make statements like Apple not being interested in things I have, you might want to meet me face to face - A) So I could spit in your face B) so you know who I truly am.

 

[gwangung]

ThinkSecret has nothing to worry about. This is no Metallica vs. Napster case. ThinkSecret is a journalistic venue and on that grounds would not be liable for freedom of press - in releasing information others breached contract to disclose - especially since ThinkSecret would not have known the disclosed information was a trade secrect for sure (hence the "rumor site" classification). As I and many others have stated, Apple should just accept these rumor leaks as free publicity around the world. If they had kept their mouth shut noone would have even known the rumors were true. After the information is released to the public they should then pursue an internal investigation into those which leaked the information.

*sigh*

Again, trade secrets.

This is NOT a slam dunk for Think Secret. And there are well defined limits to "freedom of the press"--one of those is in trade secrets.

Remains to be seen if the law agrees, but if it's held that trade secrets were involved, then Apple WILL win.

 

[wdlove]

A Harvard grad doing something pro bono? Call me jaded, but that just doesn't seem possible to me 😀

Even being a Harvard Law Grad, he has to start his career some where. Taking a high profile case will get him noticed and open many doors in the future.

 

[gwangung]

Even being a Harvard Law Grad, he has to start his career some where. Taking a high profile case will get him noticed and open many doors in the future.

So, why should he take this case, then? 😛

Think this is just small potatoes; not big and splashy enough for someone who wants to make a name for themselves just out of law school....

 

[fixyourthinking]

who's paying his bill

who is paying his bill?

or is it pro bono?

Most likely the lawyer will try to do this for notariety. That said, his choice of lawyer was very poor because it's the same lawyer that defends downhillbattle.org who runs these two websites

http://www.downhillbattle.org/itunes/

http://itunesperipod.com/

And downhillbattle.org also ran a bogus contest to collect pepsi caps during last year's super bowl promotion.

This same lawyer defends the illegal file sharing siteslike SuperNova.

[ Note: I do not think ALL p2p is illegal ]

As for whether he could afford it or not and whether Nick Ciarelli is playing to our heartstrings. How many Harvard kids do you know come from poor families? (there are some I know)

Also, this message was found in a Google search, typed by "Nick Deplume" himself in 2000 - so either he's lying here or he making pretty good money.

"Think Secret has since transformed from a small fan-style website to a viable and profitable business, and the dePlume Organization LLC was founded around it, managing the sales and marketing end of the site. Our staff has grown from a single webmaster (myself) at the beginning to several regulars...

 

[wdlove]

So, why should he take this case, then? 😛

Think this is just small potatoes; not big and splashy enough for someone who wants to make a name for themselves just out of law school....

He wants to build a reputation. Winning against a company like Apple would certainly put him on the map.

I too wonder if Nick comes from a wealthy family or just got lucky.