[MW Forums]

The Electronic Frontier Foundation on Tuesday won the right to unseal court documents from Apple Computer. The documents show that Apple planned to subpoena the anonymous sources of two reporters from AppleInsider and PowerPage before conducting an investigation inside the company. more

[jmincey]

Just as I had expected all along. This shows bad faith by Apple and a great disrespect on its part for the law which it now so cynically seeks out as a remedy for what was a trifling matter to begin with. I hope an appeals court ultimately rules in favor of freedom of the press -- including the informal press. Apple has clearly not lived up to its obligations under the very law it now has the gall to invoke for help.

[Daren_Mitchell]

Go EFF!

[Frumius]

Down with corporate hand-holding!
And long-live (a kinder, gentler) Apple!

[time_bomb_W]

The thing is: why it's okay for people to get trade secret out to the public??? You can keep arguing freedom of press but the truth is this is just another form of abuse of freedom.

[Christiaan]

Go EFF! This team continually produces results. Bout time I sent them another cheque I think.

[jmincey]

"The thing is: why it's okay for people to get trade secret out to the public?"
1. It hasn't really been established that this was a bona fide trade secret which was disclosed. Not all company secrets are actual trade secrets under the law.
2. The tech journalists or web sites in question were not bound by any NDA or other contract with Apple.
3. The web sites involved in this case advertise themselves as the source of industry rumors and make no claim of factual reporting.
4. There is no indication that the web sites were informed (or were aware) that the information disclosed to them (1) constituted a bona fide trade secret or (2) was governed under an NDA or (3) was confidential at all.
5. Apple is obligated under the law first to exhaust all other recourse before seeking remedy in the courts under any trade secret statute -- and it did not do so.
While protections for trade secrets might be covered under individual state statutes here and there, and while commerce and economic vitality are important, freedom of the press has constitutional protection. If exceptions are to be made for this, it had damn well better be crucial to the democracy and the well being of the state -- on a par with (or exceeding) the importance of a free press itself.
Is the three-week preemption of an Apple product announcement (or, for that matter, the mere mention of a new serial audio interface to an existing and known product) a violation on a par with freedom of the press and freedom of speech?
Were any blueprints, schematics, formulas, design specs, source code, recipes, or prototypes given away or disclosed? Are we talking about a groundbreaking new technology or a whole new product category here -- the premature announcement of which could indeed negatively impinge on Apple's revenue picture?
Answer: No -- not by a long shot.
If journalists are forced to disclose their sources willy nilly, then soon their sources will dry up and likewise their ability to report information will dry up and our ability as citizens to be informed will be impaired. The founding fathers of the United States understood that a democratic government can thrive only so long as the citizens it serves are well informed.
Apple is free to go after anyone who violates its NDAs and it can even go after journalists who knowingly violate its trade secrets -- but this ability is not without limits and requirements, and it is clear (thanks to the EFF) that Apple has shown bad faith (and perhaps has lied outright) and has failed to meet these requirements. So even if a bona fide trade secret violation is involved in this case, Apple has not done its part nor complied with the law in this matter.

[SPOOF]

"4. There is no indication that the web sites were informed (or were aware) that the information disclosed to them (1) constituted a bona fide trade secret or (2) was governed under an NDA or (3) was confidential at all."
Both of these sites KNOW that all of the information that isn't publicly announced by Apple is NDA. This is why they accept over anonymous communication methods. You are completely wrong on this point.
That point is one of the pivotal points in the case. Willful misconduct is much worse than an accidental transgression they didn't know about, and it was continuous from these web sites.
I like to follow rumors too, but this was just stupid.
Oh, and it WAS also a new product category for Apple, who made no audio interface of their own at the time. This info could very well disrupt relations and product availability from third parties, and therefor COULD do damage to Apple, prior to them releasing the product.

[Christiaan]

"Oh, and it WAS also a new product category for Apple, who made no audio interface of their own at the time. This info could very well disrupt relations and product availability from third parties, and therefor COULD do damage to Apple, prior to them releasing the product."
Even if this were the case it is nothing, absolutely NOTHING, compared to the the damage that could be done to journalism and democracy. Profit is meant to be an ends to a means not an end in itself. We have all become slightly insane in our worship of profit above all else, including even a free society.

[jmincey]

"Both of these sites KNOW that all of the information that isn't publicly announced by Apple is NDA. ....That point is one of the pivotal points in the case."
It's not pivotal at all. The key question is whether the information disclosed rises to the threshold of trade secret under the law. Lots of secrets are not trade secrets as the law defines them. Lots of things are governed under an NDA which are not trade secrets.
An example of a trade secret which I and others have used frequently in this forum is the formula for Coke. If an employee discloses this information to a journalist and a journalist then publishes it, both parties would be in violation -- big time. In contrast, an announcement that Apple was planning to add a Firewire audio interface to an existing software product hardly meets that standard. There is no design spec or source code involved.

[SeaFox]

In reply to:

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Apple argued that the internal investigation itself was a trade secret and should be sealed from opposing counsel.

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This really reminds me of those cases you hear in the news where people are charged and arrested under provisions of the PATRIOT act and can't find out what their specific crimes are and are told they cannot tell anyone about the fact they're being investigated.
Apple doesn't want anyone to know about their trade secrets and doesn't think they should have to reveal whether they are actually following the law's provisions themselves.

[jmincey]

In reply to:

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Even if this were the case it is nothing, absolutely NOTHING, compared to the the damage that could be done to journalism and democracy. Profit is meant to be an ends to a means not an end in itself. We have all become slightly insane in our worship of profit above all else, including even a free society.

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Well said. I wholeheartedly agree. Trade secrets deserve some protection and the inventors of a technology deserve to be compensated for their work without being blindsided by others who played no part in the original creation of the technology. But these protections carry limits.
It's hard for Americans to digest this concept, but work and profit is not more important than citizenship, family, friendship, liberty, community, democracy, etc.

[Outdo13]

While Apple is hardly "pure" in this case, what is being conveniently ignored by those arguing in favor of the behavior of the various rumor sites is that it is illegal to induce another to break a valid contract. An NDA is a valid contract, and would be considered valid absent specific information to the contrary. The rumor sites knowingly try to get ("induce") Apple employees to break their valid contracts with Apple, the NDAs all of them sign, for undisclosed information. Money is not needed to constitute an inducement, the mere offer to publish would be enough. So, it is not as simple as is being argued here and these rumor site, also, are hardly "pure."

[jmincey]

"...what is being conveniently ignored by those arguing in favor of the behavior of the various rumor sites is that it is illegal to induce another to break a valid contract."
Yes, but what is inducement? If I announce on a web site that I will gladly pay a handsome sum to anyone willing to disclose private or secret information about a company, I think it's fair to say this would qualify as inducement under the law. But if I simply offer to answer phone calls from anyone who would care to share a hot tip or rumor with me, that's a different kettle of fish.
Also, if I persuade you (with convincing arguments) to violate a contract but I have no vested interest in the outcome of your actions and I take no action myself, this is not itself a violation (as I understand it). In other words, the act of publishing information must accompany an unlawful inducement of an act; the inducement itself (and in isolation) is not illegal. Again, this is according to my best understanding.