Once and Future Lawsuits
Several days ago I saw that ThinkSecret was able to get counsel, and once again my love for the Electronic Frontier Foundation was reaffirmed, which I'll go into in a moment. That faith may not be reaffirmed for everyone, but I know a few people in the EFF, and I honestly don't think they'd marshal resources behind something that wasn't worthwhile.
There are reasons why they're protecting PowerPage and AppleInsider, and reasons why they've marshalled their resources to get attention brought to the Think Secret case so they had a better chance of getting counsel. For those in that camp my inbox has been primarily divided into several veins... my views on them might not be 'popular', and might surely be influenced by my frame of reference, but that's why they're my views and not dogma.
- I hate the rumor sites, they are parasites. If people get their hopes up because of a rumor and then are disappointed at MacWorld, it hurts Apple...
This is an absolutely fascinating discussion that's worthwhile to mull over. A friend, who primarily lives in the Windows world, once said to me "You know, for such a small company, Apple sure does make a lot of noise", and the man had a good point. Apple has setup much of their business model around 'hype bombs', which is a direct tradeoff to how other large tech companies do things.
We could argue about hype, and when it helps or hurts all day. While it's an interesting and valid discussion, it doesn't seem particularly relevant to whether or not the lawsuit is kosher, or even whether it's a good idea. The more orchestrated a plan is, the higher the chances of something tripping it up. It doesn't mean that it was inherently wrong that it was tripped up, just that it wasn't favorable to Apple. That just isn't how I calculate my barometer.
- This is mostly about Apple wanting to get the names of the sources behind the leak, and this is how they have to do it... Apple has a right to defend their intellectual property...
Apple has every right to file the lawsuit, but it doesn't mean it's not an intimidation tactic, and doesn't mean it's just kind of icky. It's sort of the way Trade Secret stuff works. The ones who gave up the information were surely in the wrong by doing so, but those taking it and running with it, while it might hurt Apple, are generally protected.
If you hadn't noticed, probably hundreds of media outlets were reporting on the rumors of a cheap and headless G4 iMac, because once the cat is out of the bag, the cat is out of the bag. Apple isn't suing them, even though they were basically working off the exact same information that Think Secret posted...
- These guys aren't journalists, they run a website, one that dishes out rumors at that...
Funny, I have a magazine sitting here whose entire back page is devoted to rumors about the tech industry. Everything from pending layoffs to upcoming products, and there have been rumor columns in Mac magazines going back years and years. Funnily enough, that magazine also has a website where you can get the exact same information.
However, what if that magazine just had the website? Would it still be press? This is basically the crux of those questions. These lawsuits have been struck down under the first amendment before, but of course much of it depends on how you want to define 'press'. These are interesting times for these questions, not the least of which is that Mac magazines aren't exactly in large supply anymore.
If you are getting your Mac news, chances are it's from a website. These websites certainly in many ways act as press. They take press releases, and report them, and sometimes build stories around them. Many weblogs are basically online diaries, but many have ventured into op-ed territory and grass-roots publishing.
The funny thing about first amendment issues is that people try to be selective with something that, when you try to be selective, starts to get inherently dangerous and engenders what is called "The Chilling Effect". The Chilling Effect starts to come into play when someone has a right to do something, but chooses not to, or at least has to consider not to, because of what the consequences might be. You've been intimidated mentally into stifling yourself, and your rights.
- I've heard of that Nick guy, or saw a forum post once, and he's a jerk, so I don't really care what happens...
I don't know him, and have never talked to him, but really don't care if he's a jerk or the nicest guy in the world, or what he does on his weekends. In other cases I would, but not this one.
Again, the problem with the first amendment is that while you may love Apple and hate ThinkSecret, rumor sites, or even anti-Mac sites in general, is that it's very important that you protect what they are saying so that what you do care about is also protected.
There's a reason why the EFF has gotten involved to the extent that they have, and it's not just altruistic: if they didn't, this could set an amazingly dangerous precedent and cause a Chilling Effect through the Mac web, let alone the web in general. Many, many Mac websites are watching this closely because of the immediate affect it could have on them.
- This is different from those magazines because they have a link on their site saying "God dirt?", where they are specifically 'inducing' people to hand over confidential knowledge...
Apple's suit specifically mentions "Did you hear something you weren't supposed to? We appreciate your insider news and gossip". Oddly enough, the industry rumors column I'm reading right now has an email address asking for 'tips'. If you're going to break it out into those semantics, well... these things exist in all industries. The only difference is that Apple has gotten it into their head to start suing.
- Damnit! Apple has a right to protect their intellectual property!
Of course they do, and Apple actually has a right to file any lawsuit they want, no matter how frivolous, and even if it's just an intimidation tactic to get what they might really be after. However, you can love Apple, and love their products, and not be down with their current behavior.
And really, when it comes down to it, when it comes to a large corporation smacking small timers with big civil lawsuits... guilt or innocence often doesn't really matter, and the large corporations are aware of this.
Over the last few weeks, an old favorite book, "The Once and Future King" by T.H. White, has been popping up in my head more and more. I personally think it should be required reading, but if you've never had the fortune, it's about the legend of King Arthur. It follows the legends of him as a boy, with the sword in the stone, all the way up through the tragedies that befall him later in life. Unknowingly sleeping with your half-sister could really through you for a loop...
Anyways, the passage that has specifically been on my mind, and that had such a large affect on my brain as a kid, was where Arthur and Merlin are talking about the changes he'd brought about to Britain at the time. If we go back, you can remember when the idea of free will just really didn't exist. If something happened, it meant that God actually wanted it to happen for his own specific reasons. Consequently, the world was ruled by the idea of 'Might makes right', or Forte Mayne..
If you had a disagreement with someone, you challenged them, and whoever won the fight was obviously correct in the dispute. If the other person had been correct, obviously The Divine would have stepped in and caused him to win. Of course, it didn't take long for people to be able to proffer up their own 'champions' to fight for their cause. Whoever had the biggest, nastiest, best champion to fight had a habit of always winning... which basically came down to whoever had the most gold.
If someone accused you of something, whether it was right or wrong, if you didn't back down they'd just declare an injustice and God would decide. Basically this meant going up against the other person in combat, but if the person had enough gold... there you'd be standing up against the scariest mofo the person could pay to be there in his stead. Assuming, of course, that you didn't have the coins to pay for your own to stand in your stead. Chilling Effect indeed.
Arthur's plan was to change all of this, and to move from the rule of Forte Mayne, or force of strength, to the rule of law. Everyone would have to abide by the rule of law, including the King himself, which meant we started to have the idea of equality. While these are legends, and parables, at some point the world did have to go through this type of fundamental shift, and it was huge.
In the passages that have been on my mind, Arthur is despondent and melancholy, and Merlin is confused as to why Arthur would be so when he was starting to see the fruits of his labor come together. Society was starting to transition away from 'Might makes right' and towards the rule of law, which was in itself a huge accomplishment. How on earth could Arthur be depressed?
Arthur's answer, and I'm paraphrasing, went like so: "We've traded a system where those with the most gold could afford the best fighters in combat, to one where those with the most gold can afford the best talkers". No longer was physical might, and one's knowledge of fighting of the greatest importance, but rather one's knowledge of the ins and outs of how the courts worked, and how to put those to use by their clients. A mercenary of a different sort for a new age.
Lawyers are people, and have lives, and families, and they certainly aren't bad people. All of us, depending upon our profession, are hired guns in our own sort of way. What separates a mercenary from a Knight in this context is that a Knight fights for a cause, which brings us back to the Electronic Frontier Foundation. For all intents and purposes, the EFF is like the ACLU (American Civil Liberties Union) translated into the digital age.
Their charter is to protect your civil rights as we move into a new, digital world. This isn't as easy as it sounds. Over 80% of their funding comes from donations and individuals, and they've represented all kinds of cases that have benefited us. Everyone from those goofy Jib Jab parodies, to trying to stop corporations from misusing trade secret laws, P2P, ISPs having to arbitrarily hand over information to companies like the RIAA... even the Patriot Act. Seriously, check them out.
In the same way that an individual would be just wholly screwed if thrown in front of a paid mercenary, individuals are just as screwed when thrown in front of a group of lawyers. Regardless of guilt or innocence. Without someone like fighting for a cause willing to step in, rather than the largest purse, those individuals would have little to no recourse whatsoever. This is why the EFF exists, and why they're worth supporting.
Corporations are highly aware of this situation. Larger companies have spilled tips about Apple's possible upcoming products and directions before... oddly enough, they don't have a habit of getting sued. In some cases they had pictures of the products on the stands before they were announced. They run with stories with anonymous sources, including Apple employees. Apple could sue them, but those corporations in turn have their own champions to deal with it.
This is why the EFF is so important. I know that ThinkSecret wouldn't have gotten representation without the publicity and the connections that the EFF was able to bring to bear towards their case, and I know they're representing PowerPage and AppleInsider for a reason. It's not about whether or not you like Think Secret, or whether or not you think the community around the rumors is good or bad.
Everyone always thinks this sort of thing couldn't affect them. They're too small to be on anyone's radar, or they're just a little blog. Blogs are starting to get sued. At this point it's literally becoming automated, and it's not uncommon for someone to get DMCA warnings, or even demands for settlement generated by software searching out filenames and IPs, and then after it's investigated it's found to be an error. Unfortunately, whether it's an error or not is usually irrelevant.
I know someone this happened to, and I also remember the case of the woman handed a letter by the RIAA with a settlement demand for infringement using Kaaza, and it turned out she had a Mac... for which Kaaza didn't even exist. If you have a website or a blog, the repercussions of this lawsuit could very well whip around towards you one day. The Chilling Effect is real, as is legal intimidation and bullying to get what you're after.
Very soon we're all probably going to have to take out litigation insurance to do anything on the web, in the same way that we have to take out car insurance to do anything on the road.
Posted by drunkenbatmanJanuary 20, 2005, at 09:21 PM
Comments (20)
Posted by: Twist at January 20, 2005 11:09 PM
I am personally very glad that the EFF exists. I just wish they had the funds required to really protect our rights but I fear that in the political system we currently have they are basically fighting a losing battle. Until they can afford to counter the likes of the RIAA and MPAA when it comes to lobbying support from politicians they are going to have one very hard job. I wish I could help out but I would be lucky if I could get together $50 right now.
Posted by: Shiner at January 21, 2005 12:29 AM
There are lots of ways you can support the EFF! You can volunteer to do things at their site, one of my roommates does. I have yet to make up my mind about some of these lawsuits, I am still waiting for more information to come out. The link you gave said they are trying to have it thrown out of court under 1st amendment so that could be the end of it.
As for websites being press, Apple gives them access to Expos and so do other places. I also remember a big deal being made of bloggers gettingn press passes at the election conventions.
Posted by: at January 21, 2005 12:58 AM
i want to take this seriously, but those google ads are too ironic... eh i need a drink
Posted by: Jon H at January 21, 2005 01:47 AM
While "might makes right" is one saying, another is "with great power comes great responsibility".
Maybe rumor sites are just too much power for immature kids to handle?
While tech magazines with rumor columns do have more money than college kids with websites, the magazines' rumor column writers also have editors to ask for advice, and the editors have legal advisors to ask for advice, which likely guides their decisions of when to publish a rumor, how much detail to give, how to frame it, etc.
Perhaps it's not just the magazines' money, but also the way they go about handling and printing the rumors?
Rumor sites run by kids, on the other hand, are too eager to show off their shiny new toys to give the issue this kind of consideration.
Posted by: Jon H at January 21, 2005 01:50 AM
Bill Harris U. writes: "The battle of corporations versus citizens has been underway for some time now. "
Well, in the case of Think Secret, it's a case of two businesses, not a corporation versus a citizen. Think Secret is Nick's business, and he publishes rumors to make a buck.
Posted by: Nathan Hale at January 21, 2005 03:01 AM
Jon H, you are being pedantic and elitist. That is what the Internet is about. Everything you said is about elitism or favoring Apple, not breaking the law. If it is shown that TS was paying these individuals to give them information or was blackmailing them into giving them tips I will change my tune. Your point that he was making a buck seems silly again in the face of the 1st amendment.
That said, in catching up to these recent posts I have been struck by how quickly someone can get themselves into a world of trouble now from when I was younger. I am a switcher (fiance is a Mac user) of almost a year and typing this on my 12 inch Powerbook so I do not know some of the history behind some people liking rumour sites and some not. I did not think anything of them except to enjoy them they seemed to be part of the culture. I find the whole story fascinating and am keeping an open mind.
Posted by: at January 21, 2005 03:23 AM
Why are you writing this shit?
Posted by: other nathan at January 21, 2005 03:50 AM
I also keep hearing: "Damnit! Apple has a right to protect their intellectual property!"
Thinksecret only posted rumors about form factor and general technical specs, not pirated software or secret production methods. The information posted doesn't qualify as either intellectual property or trade secrets.
I love Apple products, but Steve Jobs can be a real benevolent-hippie-tyrant jerk.
Posted by: MCSU @ philmug at January 21, 2005 04:10 AM
Remember when ATi released the info before MW 2000 and Jobs had a tantrum? ATi was supposed to give a presentation at the keynote and Jobs yanked that. Then they removed the preproduction ATi boards from the powermacs on the floor and would not offer the radeon as an option to consumers.
All of this was done to punish ATi for leaking that there would be 3 new computers introduced at Macworld and ATi would be powering them. Apple can be very vindictive when they choose to be.
Posted by: Amanda Boyden at January 21, 2005 05:59 AM
Let me say I am not a lawyer and I don't pretend to fully understand this situation. I also feel ignorant at not knowing about the Electronic Frontier Foundation before this.
Since I first heard about this case I have wondered why a company making over six billion dollars per year has a "business model" that can be so damaged by one teenager? It seems dangerous, but I have not heard it discussed.
My mother gene has gone off about the "Tiger Kids" (can that happen at 30?) and I hope they come through the process OK. I do understand what they did was wrong and some punishment is warranted but I still fail to see what the real damages to Apple have been because it is so early for 10.4. I suppose some developers may have downloaded the seed instead of paying Apple five hundred dollars and that makes sense.
Hundreds of thousands of dollars would seem punitive. Does anyone know the worst that can happen to those involved in these lawsuits?
Posted by: at January 21, 2005 06:07 AM
The information posted doesn't qualify as either intellectual property or trade secrets.
But the description of Asteroid (see PowerPage and AppleInsider) was very detailed, though.
Posted by: Dave at January 21, 2005 10:30 AM
Four comments - and the fourth may be the most pertinent.
(1) ThinkSecret was the FIRST site to post the rumors about the Mac Mini. Their post contained many details, from the codename to the config. Other sites picked up that post and only reposted it - some crediting ThinkSecret, some not. This is why Apple chose them over the others.
(2) Again, their post contained details. Oddly enough, they were very accurate compared to the real product. Details of not just the US$499 config, but the US$599 too. Go figure. Makes one wonder just who their inside source was - and what kinds of NDAs him/her/they broke. Like it or not - Apple is legally in the right for wanting to know those sources.
(3) Ever look at ThinkSecret's main page? They've toned it down, but they still operate barely inside of legal bounds. I consider them to be the most credible of the Mac rumor sites, but they still are exactly that - a rumor site. One that advertises/requests info in ways that make it easy for people to break their NDAs.
(4) My understading of trade secret laws are not professional. My understanding of California trade secret laws is even less. But you haven't addressed something in this very long ramble defending ThinkSecret: What would be the precident if Apple did NOT file a lawsuit? If two years from now someone completely breaks their NDA on another product that truly does cause harm to Apple's operating concerns, have they forfeited any recourse to bring an action against them?
Look, this whole thing is just business as usual. Apple needs to file the suit. ThinkSecret needs to defend themself. In most any other trade secret lawsuit it would likely get settled out of court. But in this scenario you have two other things preventing it - so far. The defendant is 19 years old, and he runs a site where the publicity he's getting for not settling benefits him greatly.
All told my reaction is.... move along people, there's not much new to see here.
Posted by: Jon H at January 21, 2005 01:42 PM
Other nathan writes: "I love Apple products, but Steve Jobs can be a real benevolent-hippie-tyrant jerk."
So can Richard Stallman, of the Free Software Foundation. And GNU definitely doesn't like it when someone violates the conditions of their licenses.
Amanda Boyden writes: "Since I first heard about this case I have wondered why a company making over six billion dollars per year has a "business model" that can be so damaged by one teenager? It seems dangerous, but I have not heard it discussed."
Imagine a teenager with access to military secrets, posting them on the web.
It's not the *teenager* that causes the damage, it's the global distribution of the information. If the teenager were still limited to blabbing with a few friends at lunch, nobody would care if he had news about new Apple products.
Could a teenager post something that could bring down a government? Sure. Matt Drudge was 32 when he broke the Monica Lewinsky story, but it certainly could have been broken by someone much younger.
Posted by: Jonathan Miller at January 21, 2005 02:25 PM
(2) Again, their post contained details. Oddly enough, they were very accurate compared to the real product. Details of not just the US$499 config, but the US$599 too. Go figure. Makes one wonder just who their inside source was - and what kinds of NDAs him/her/they broke. Like it or not - Apple is legally in the right for wanting to know those sources.
Have to disagree on the word legally. Does Apple want to know who those sources are? Yes. Can Apple do bad things to those people if they find out? Yes. Does Apple have a legal right to get them from someone else? Probably not due to the 1st amendment. History has been littered with these cases and Apple does not have the greatest case.
Posted by: pat g at January 21, 2005 02:39 PM
i haven't really cared either way these suits can go on for years or more. that it has gotten so much attention so far is fascinating. but if the apple fanatics want to apologize for apple on this issue they really need to go back to the drawing board on this issue. military secrets? you are really reaching here. from what I can see apple wants something TS has and has made a legal gambit to see if they can pressure them into it. i'd like to hear more from the eff on their reasoning for supporting them too.
Posted by: Rich at January 21, 2005 04:40 PM
Here's the real problem with almost all the arguments about this suit. Apparently there are a only a few people who actually know what the 1st Amendment says. So, as a card-carrying member of the ACLU, here it is:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
The operative clause here is, "Congress shall make no law..."
The only legitimate question here is whether laws, allowing a corporation or person to sue a corporation or person in the press in order to compel them to reveal their source, are constitutional. The relevant law in this case is the California law protecting trade secrets. Given that there already are restrictions on the press (and there are.. most famously, perhaps - Janet Jackson), the courts have obviously come to the conclusion that certain restrictions do not abrogate the "freedom of the press." Whether they will decide that this California law does unfairly restrict press freedoms is obviously a question that can be debated.
*Then*, if you do come to the conclusion that the California law is unconstitutional, you also have to make the determination whether Think Secret is a legitimate member of the "press," and therefore has special protection from the trade secrets law (which protections would *not* apply to you and me, unless you consider this post a sort of journalism). Whether bloggers (and certainly whether *all* bloggers) constitute the "press" will, presumably, be one of the debates not just for Macaddicts, but one everyone has over the next few years.
From what I understand, Think Secret is almost certainly in breach of the California law they were sued under. Think Secret's attorney has stated that, "The Supreme Court has said that a journalist cannot be held liable for publishing information that the journalist obtained lawfully." However, Apple's suit claims that the means which were used were in breach of the California law (that is, the employees broke a NDA they had signed with Apple with regard to trade secrets, and Think Secret induced them to do so). Under California law, you can not induce someone into breaking the trade secrets law. We can argue about what inducements Think Secret offered, but it's clear that employees, who kept themselves anonymous, knew they were doing something illegal. I would have to say that they were probably induced to break the law, in some form. Apple, therefore, is legally right, as it stands today.
It would essentially require an appeal to either the State Supreme Court or the U.S. to overturn the basis of the law under which Apple is suing, which would, frankly, endanger a significant source of income to the California economy (software and hardware development — consider what might happen if all NDAs were ruled unconstitutional, as long as you speak to the "press"). Whether you think that's fair is an entirely different matter. Whether it's good business for Apple is also surely debatable. Obviously, someone at Apple decided it was worth it.
There's a lot to debate about what's going on between Apple and the bloggers. However, there's an awful lot of the debate that has nothing to do with reality or the law. Hope this helps.
Posted by: at January 21, 2005 04:58 PM
This all just seems so stupid. What I want to know is why Apple is doing all of this now right before an Expo after years of not doing much. I don't care at all about this law suit shit and just want to see more pictures of the mini.
Posted by: Jon H at January 21, 2005 09:25 PM
pat g writes: "military secrets? you are really reaching here."
My point was not to equate the Mac Mini leak to a leak of military secrets.
I was addressing the silly idea that a young person's act is somehow made harmless by virtue of their age. The "oh, it's just some enthusiastic kid, playing online" thing.
My point was that some immature kid with a website could do quite a bit of damage by just throwing something on his webpage. It would be just as damaging as if it were posted by a 50-year old. So why should the kid get a break?
There are plenty of people in the military today who are the same age as these kids involved in these legal cases. 18, 19, 20, 21, 22. They have access to information that could be posted just as easily as Nick Ciarelli posted his info about the Mac. Luckily, the young people in the military seem to be far more mature than the pampered youths whose biggest concern is getting an early peek at something from Apple.
I was giving a worst-case scenario, where lives *could* be endangered. Of course Apple leaks are not remotely close to that degree of severity.
The point is that the age of the poster is rather irrelevant. The damage (whether real, or a perceived blow to marketing efforts) is caused by the widespread distribution of information. Posting to the internet is a real form of significant power, which we underestimate, but totalitarian states like China understand very well.
Some immature people just aren't ready for that kind of power, and they get themselves in trouble.
Posted by: gg at January 21, 2005 10:23 PM
Good food for thought in general, but I find this more interesting when I forget about the lawsuits you are obviously trying to tie it into. The larger legal system is a nightmare for individuals and intellectual property laws are fucked up. Point taken.
I'd just like to say for those reading this that while the guy with the utility belt has some following, his views are just his views and do not represent everyone and may not even be right. No one knows the entire story and this may be what Apple has to do.
Very soon we're all probably going to have to take out litigation insurance to do anything on the web, in the same way that we have to take out car insurance to do anything on the road.
Nothing new here. The battle of corporations versus citizens has been underway for some time now. Some time ago corporations were given the rights of citizens. Soon all citizens will have to incorporate to be given the rights of corporations. Slippery slopes.