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Is Apple Right to Sue ThinkSecret? |
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 By now you've probably heard about how Apple is suing the guy behind ThinkSecret, Nick Ciarelli, a.k.a. Nick Deplume, for divulging trade secrets. Well now he has a pro bono defense attorney - EFF.org's very own Terry Gross, as detailed by ThinkSecret here.
Well, I was hoping to spark some conversation about this whole topic. Is Apple right to sue over this? I mean on one hand they have to protect themselves and their trade secrets, but on the other hand, isn't that against free speech? After all, he merely reported news from people that told him things. If an informant was under a non-disclosure agreement, shouldn't that person be the one getting sued?
Granted, I don't know much about legal issues, but it seems to me that ThinkSecret should just be forced to reveal who it's informants are, and Apple can take them on individually.
Maybe I'm missing something here. |
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January 21 2005, 3:12 PM EDT, by
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Comments:
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| dab2 |
1/21/05, 6:18 PM EDT |
I don't think that Apple will have a case against Nick. In order for this kind of case to be successful, the plaintiff has to demonstrate damages. Simply put, there were no damages to Apple Computer Inc.
The early leak of the Mac Mini specifications was only regarded as a rumor and Apple then released the specifications themselves only two weeks later. The computer itself is based on an already existing machine, the iBook G4, and represented no major technological breakthrough. Competitors were unlikely to take the specifications seriously and even if they did, the two-week lead-time could not and did not afford them the time to beat Apple to market with a similar, competing product.
Having said this, I do think that Apple needs to both work with the Mac Web on sharing juicy tidbits while plugging up their corporate leaks so that true trade secrets that could cause damage do not slip through the cracks. We as Mac enthusiasts need to recognize that the leak of certain information can lead to the ruin of a company and then act accordingly when reporting or sharing information.
I do wish the best for Nick and hope that he and Apple can find common ground. Apple could loose an important voice by alienating Nick and others who are affected by this case.
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| Nathan Ziarek |
1/22/05, 8:53 AM EDT |
dab - are you a lawyer/law student? The reason I ask is that the people suing TS are lawyers, and so I would tend to trust their judgment as far as "win-abilty" goes. Plus, Apple is a PR heavy company; if it wasn't worth it, I don't think they'd do it.
That said, I think Nick is being sued for coercing information out of informants under an NDA, not for simply publishing the information that they gave him. If it was only the latter, I don't there would be any case, instead he may have been subpoenaed to reveal the names of the leaks.
Now, I don't know how you coerce information out of people and then blame them, but apparently that has some precedent and is a valid legal complaint.
As for proving damages, I wonder if that is actually true. While it may not give a competitive advantage with only a two week window for competitors to jump on it, it definitely builds up comsumer interest across the board (how many times are these rumors mentioned in Business Week or C|Net?) and can affect the stock price of Apple. When the keynote actually happens, depending on the actual unveiling, that will then again affect the stock price. Even Steve mentioned - "our stock is down...well the keynote isn't over yet." A publicly traded company has more to worry about than innovation and product releases. Not properly protecting their shareholders is a crime - a serios crime - in and of itself.
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| dab2 |
1/22/05, 10:56 AM EDT |
Nathan,
No, I am not a lawyer or a current law student, but I have studied law and have a better then average understanding of the legal system. Trade secret laws are of particular interest to some lawyers because unlike many areas of the law, trade secret laws in generally consist of three federal laws that may or may not have state equivalents and numerous case laws or presidents built one case at a time. Many lawyers will take suits like this on in order to create a new president, reinforce a similar case, or to challenge an earlier ruling. Sometimes lawyers will even take on such a case in order to build a name or reestablish themselves.
This case is not frivolous. I do not question Apples legitimate need to find out how information is getting out about secret projects and I as a Apple stoke holder most certainly understand the possible consequences of an information leak to a publicly traded company. On the other hand, Apples lawyers had no idea that they were suing a nineteen-year-old college student when the filed suit against a six year old web site; they most certainly thought that there might be real money behind the site for bribes or maybe even a current Apple employee. Apples real goal would appear to be to find out how Nick got his information but this will be tough because of the long-standing president of reporter protecting their information sources.
Nicks lawyer has undoubtedly taken this case because the presidents that this suit is based on did not involve a college student who can not even afford a lawyer to defend himself and the major president involved the sharing of the actual source code for an encryption process being “reported� on a web site for so-called hackers as apposed to a story about unconfirmed specifications for a computer which has no new technologies, just a great low price, on a web site known as a “rumor� site. Apples case has just gotten very difficult.
Once again I want to say that I truly hope that Apple and Nick can settle, and that Nick will not harbor any ill will toward this company that he has loved for so long. Nick has done an amazing job maintaining a very professional site while he was at an age when most of us were just horny and angry with our parents all of the time.
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| Nathan Ziarek |
1/23/05, 1:41 AM EDT |
dab -
I am also by absolutely no means a lawyer, and I have no real knowledge of law (aside from some copyright law owing to my advertising background). If Apple is just trying to "shake down" Nick into giving up his sources, can't they subpoenae him to testify and give up the information? Or is that considered "suing"?
I am only curious because it seems like Apple is going after someone that is only publishing what they hear, which seems to me would be pretty baseless. I would guess that the truth of the matter is that they believe TS and Nick have done something more sinister than publish a rumor. If it is just the publishing, why not take down macRumors and Apple Insider and AppleX, etc, etc?
Thanks for your insight.
Nate
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| cAtraXx |
1/23/05, 9:20 AM EDT |
I honestly think it's overkill. Same happened to a little developers group that was sued by Blizzard Entertainment for creating a gpl game system called "Freecraft". There were like 200 people playing this game and in the end it was good advertisement for Blizzard, but they sued them nonetheless.
Same happens now with Apple. Sure, among hardcore Macists ThinkSecret is a popular site, but then again how many people really read it ? And another point: Does Apple lose sales through this ? I think not, because it's mostly the good news that ThinkSecret shows: A new Powermac, A new iPod. And everybody that reads the site and is a Mac fan starts saving up so he can buy the latest Apple hardware. Ok, so it's not everybody, but i'm sure some will. Apple is of course afraid that their ideas will be stolen before they are able to produce them themselves, but that is in my opinion a low risk.
But we also have to see that Apple always tries to keep things secret, maybe because they want to double the effect once they reveal their latest products or to provide some kind of sales rush, i don't know. Fact is that they want their secrets to remain secret (no, really ?!) and so i think it is very well their right to sue them.
I, however, wouldn't do that.
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| Chris |
1/24/05, 5:38 AM EDT |
I wouldn't just 'tell Apple who the person is' so that Apple can take them on. That's a surefire way to sinking Think Secret. No one would want to tell them anything else because they'd be scared TS would turn them over too. No way, fight on TS!
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| nhmacusr |
1/24/05, 10:57 AM EDT |
For insightful coverage on this issue go to:
http://www.macjournals.com/mdj/
I am not going to judge weather Apple has a case or not, as I am not a law expert. What I will say, is that they 'think' they have a case, or they wouldn't have taken the action they did.
I think there is more to this than meets the eye.
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| ken |
1/24/05, 12:23 PM EDT |
As I understand it, a company needs to defend certain rights like trade secrets, patents and copyrights or they effectively loose those rights. In that vein the lawsuit is appropriate.
As for going after a 19 year old "broke" student - would people feel the same if the same if the defendant was a 45 year old millionaire? Doubt it.
In the end I think Apple is looking for the people who broke their NDAs and as soon as they find out these people will no longer be granted that privilege. the people who broke the NDAs certainly did not have Apple's interest at heart and I have no sympathy if they are out of there.
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| dab2 |
1/24/05, 1:23 PM EDT |
Ken – I agree with you; I am sure that Apple is looking for the NDA breakers not the websites that published the information. Unfortunately, the first step of the process is a potential PR nightmare!
Nathan – fun exchange! Thanks for getting me to rethink and expand on my earlier thoughts.
Chris – I think you are striking on the core reason why Nick’s lawyer took the case. A good First Amendment case, complete with the question of a reporter’s right to protect their sources (a.k.a. livelihood), is just too juicy to let slip by! The constant revisiting of this legal question has kept generations of lawyers well employed.
nhmacusr – Great first page but I don’t have subscription and could not see more.
cAtraXx – It may sound like overkill but law suit are the only action Apple can legally take to ensure their rights. If they hire private investigators and tried to find the leaks covertly, they would get in tons of trouble, and the NDA breakers would probably get away with it.
Jonahan - Great topic and thank you for putting out so many articles in such a short period of time! Keep up the good work.
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| cAtraXx |
1/24/05, 2:15 PM EDT |
That wasn't really what i said. I essentially said that they might cut their own flesh with it, because it's also advertisement for them, while this now is bad news.
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| nhmacusr |
1/24/05, 2:28 PM EDT |
dab2,
Sign up for a free trial subscription. It is well worth it.
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| dab2 |
1/24/05, 5:15 PM EDT |
nhmacusr - Okay, I'll check it out. Thanks for the recommendation.
cAtraXx - Sorry, I did not mean to miss understand your intention. I usually enjoy your comments and did not mean to be offensive to you in any way.
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| cAtraXx |
1/25/05, 8:06 AM EDT |
No offense taken at all, dab2 !
I just wanted to clear it up. Sorry if i sounded rude.
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