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Apple apologists: Suppose it was Microsoft?

Matthew’s column over at his Mac Enterprise blog makes one point which some of the more virulent "Apple is always right!" folks around the web should remember: journalists who cover other companies are always astonished at Apple’s mania for trade secrecy.

What’s more, it’s worth remembering that what goes for Apple also goes for any other company. Should Apple end up winning the two cases it’s involved in, it sets a precedent which will stifle legtimate coverage of other companies – and that may in fact sometimes be to Apple’s detriment.

Consider the following example. Suppose you’re a reporter, covering
Microsoft. Microsoft claims that it will be releasing a huge operating
system upgrade in Summer 2005, one which will revolutionise the world.
Corporations begin to plan around this, and some decide that, rather
than buy Macs now, they’ll wait for Microsoft’s UberOS.

You are contacted by a source, through an anonymous email link you
have on your website, who tells you that Microsoft is going to miss the
launch date, probably by months. He explains technical details of a
particular feature in order to show why MS is having problems. Through
other sources, you’re able to corroborate what he’s saying, so you know
it’s correct.

Now the question is, do you write the story? Should Apple win both its cases,
the answer would have to be "No", because you’re relying on illegally obtained
trade secrets, and on a source which has clearly
broken an NDA.

Of course, I’m not just pulling this scenario out of a hat: it’s similar to the case of Longhorn, Microsoft’s UberOS which has been pushed back continually since its initial announcement. Thanks largely to the diligent work of reporters like Mary Jo Foley, customers were able to find out that Microsoft’s product plans weren’t all they were cracked up to be – and yet should Apple win both its cases, Microsoft would have every right to sue journalists, demanding both their sources and damages.

Remember, there’s no public interest defence in a case like this: Microsoft isn’t breaking the law by announcing a ship date and missing it. If that ship date slips, it’s under no obligation to reveal it, and, in fact, many around the web have argued that shipping dates – such as the date Apple will ship Tiger – are trade secrets too.

Although there are some corporate rights zealots who would argue that even in a case like this, Microsoft would have the right to conceal its "secrets", I suspect that the majority of the Mac fans who have been rooting for Apple wouldn’t. That’s because a lot of the passion in their argument comes not from an examination of the overall consequences of Apple winning these cases, but from a belief that Apple is somehow special: a unique company, for whom special rules should apply. That’s not the case: the weapons that Apple uses today against journalists could be used tomorrow by Microsoft, Ford, and every other corporate entity. Perhaps it’s time some of the Apple fans took a wider view.

Comments on this entry are closed.

  • Christiaan Briggs

    Couldn’t have said it better myself.

  • shaitan

    Not the same situation at all. MS by pre-announcing Longhorn and an approximate ship date has put up a public expection. It therefore becomes public interest to know that it has slipped as some have based their futures upon this expection. One cannot say this for the “Asteroid” and Mac mini product as there was no indication of these products. There is no “roadmap” of future products from Apple. Their compeitive advanage comes from surprise and the inherent delight that often comes from that surprise. Microsoft depends on the “roadmap” as a weapon to be wielded against competitors via the FUD effect. Becomes of past misuse of annoucements, it is public interest, when MS “slips”.

  • http://technovia.typepad.com Ian Betteridge

    Shaitan, again, there’s no public interest. Public interest isn’t the same as “interest from the public”. It’s not even the same as having the public having a financial interest: After all, if I’m intending to buy a new Mac I have a profound financial interest in not buying a model just before Apple releases a new one. That doesn’t mean I have a right to read Apple’s trade secrets – at least according to the Apple cheerleaders who are criticising news sites for providing exactly that information.

    Incidentally, in his judgment, the judge gave examples of what he believed “public interest” means: “Unlike the whistleblower who discloses a health, safety, or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, the movants are doing nothing more than feeding the public’s insatiable desire for information.” The Microsoft case I outline above doesn’t fit in those categories, either.

  • bickerstaff

    Hmm. I thought that the judge ruled that the bloggers have to give up the names of their sources, not that they have to stop blogging or that they’re not necessarily journalists. Apple sued them not to stop their blogs but for them to cough up the sources’ names. That’s when they ran for cover under the journalism act or something.

    On the other hand, if you get anonymous tips, then there are no names to give up, and Apple can rant and rave all it wants and it still won’t get anything out of it. The way I understand it, the trade secrets law is different from the journalism act in California. But then again, I’m an engineer, not a lawyer, so I might be misunderstanding what’s going on.

  • http://technovia.typepad.com Ian Betteridge

    bickerstaff, you’re right that the case just decided was solely about giving up the names of sources. But the main reason that the so-called “journalist shield” didn’t apply was because O’Grady etc printed what Apple claimed (and the judge agreed) were trade secrets. I’m merely trying to show that Apple fanatics wouldn’t be quite so keen on the law being used if it were anyone other than Apple.

  • bickerstaff

    Has anyone else besides Apple done the same thing? If not, that reduces your entire point to pure speculation that is not supported by fact. I think your basis is purely on the Mac advocates’ dislike of Microsoft.

    I don’t see any reason to conclude that if Microsoft does the same thing, we’d be all over MS. You went from “if you were contacted anonymously” to “Mac fans wouldn’t like MS doing it.” It doesn’t connect. It’s not even the same case. In your MS scenario, it’s an anonymous tip. In Apple’s case, they’re pretty sure that the bloggers know their sources and are well aware of the NDAs, hence the amazing accuracy of the reporting.

    I’m not defending Apple here. Like everyone else, I went from one extreme to the other in trying to figure out where I stand with respect to this case. At this point, I happen to agree with the judge. If anything, they might want to rewrite the trade secrets law to make sure everyone understands what falls under “trade secrets.” At this point, though, the law is well applied in this case. In other words, there is no place for ad hominems.

  • http://technovia.typepad.com Ian Betteridge

    bickerstaff: Yes, other companies have attempted to do this in the past, although to my knowledge none in the computer business. The connection is pretty obvious, though: in both cases, there would be reason to suspect that someone had broken an NDA. In fact, I’ve had people in other comments on here say that *any* trade secret that leaks must have been leaked by someone under NDA. What’s more, if you look at the scenario again, I specifically state that the person leaking gives technical details, which it’s illegal to pass on or print even if neither the reporter nor the source is breaking an NDA. Such is the nature of the UTSA, I’m afraid.

    Incidentally, you’re completely right that the a clearer definition of trade secrets is requred. At the moment, it’s far, far too wide.

  • Robert

    Talk about FUD…

    “a belief that Apple is somehow special: a unique company, for whom special rules should apply. That’s not the case: the weapons that Apple uses today against journalists could be used tomorrow by Microsoft, Ford, and every other corporate entity. Perhaps it’s time some of the Apple fans took a wider view.”

    Have you actually been to any Mac related sites lately? Not one of them is defending Apple in this situation. Implying otherwise is simply reinforcing the “us vs. them” mentality of both the PC and Mac camps.

  • http://technovia.typepad.com Ian Betteridge

    Robert, have you read the comments on the Mac sites lately? Probably 90% of the Mac users commenting are saying some variation of “go Apple! Throw the book at them!” The Mac sites themselves aren’t cheerleading for Apple because they all recognise that Apple has overstepped the mark and, if it ultimately wins both cases, there will be a chilling effect on the whole of technology journalism.

  • John

    As I wrote on the other thread, I don’t believe its that easy to prove that published information came from protected information. There is an initial burden-of-proof on the accuser, and altho IANAL, I don’t think the courts have set a low bar. We will certainly know more when Apple shows their proof in the Think Secret case for the iWork and Mac mini leaks.

    Now with regard to MS, I was about to comment to you that Thurrott’s mention of Office 12 internal documents was on the edge. If he had not complied with MS request to pull it and MS had sued him, I would’ve been torn, as Thurrott is worse than MS for the Apple fan. :)

    Seriously, if MS had the same type of Asteroid-level proof that Apple has offered up, I would support their lawsuit. I want Apple to beat MS fair and square, so all the courts need to do is to ensure that MS plays by the rules, including of course, rules on monopolies. (For history, I supported MS against Netscape in terms of bundling IE for free since Netscape was free, but was against MS for their tactics to force box-makers not to include Netscape, and against MS for stealing IP from small companies under the pretext of partnering.)

  • jbelkin

    Here’s my take – is it really journalism if someone tells you something and you print it? Journalism should be about verifying if the information is correct. I do not know if thaose websites actually attempted to vett the information or just ran with it. If indeed they just ran with it – that’s not really journalism and the bigger question is whether it was really a trade secret? In some cases, an endangerment to public safety or public harm might require bridging that ethical gap – if you learned a comapny that made toasters that caught fire, you have a reasonable right to report that … but to induce someone to violate a NDA just to be first to report on some new hardware or software? Much shakier ground.

    Yes, I am a Mac user and yes, Apple is overly secretive but financially it makes sense – years ago, Apple was a sieve and if people knew the new faster chip of something was coming, people would stop buying – so not only would Apple lose 3 months of sales but if in the ensuing 2 months, another pretty reliable rumor came up that another faster version was coming out in another 4 months, people would just wait for that one – so instead of selling something today, there were people who would wait out two upgrades since “it was just coming out,” now – not so much. You can guess when an upgrade might be happening by the specific trade show or by the OS on the Apple store but that’s just a guess.

    And whether it’s MS or Apple, a company sets policies for their employees – if you don’t agree – don’t work for them – like the blogger who was fired by MS for photographing Macs on their loading dock … yes, it’s sad he lost his job but if it’s company policy you don’t photograph anything, that’s company policy …

  • transgeek

    Ummm…

    Nick at Think Secret is not a reporter or a blogger! However, I can understand why people like you continue to ascribe him such lofty attributes. It serves a larger and perhaps worthwhile agenda. Yet the fact is, Nick is now and always has been merely a purveyor of gossip and rumor for his own personal profit.This time he went too far and here’s why.

    I believe if indeed the “asteroid” product had been released days after his post, Apple would have left him alone, as it usually does. However, this time he released critical information well in advance of product release or even it’s completion. This upset the delicate balance between rumor websites and Apple.

    In a world where a Korean or Chinese company can bring a product to market in a matter of weeks,Apple was indeed harmed by Nick’s release of that information.He’s been doing this for many years and he knows what the rules are. He went too far.

    While I’m sure he’s just plain giddy about all the support he’s getting and his new identity as a reporter/blogger, he’s a smart guy and he knows it’s all hooeey! His 15 minutes are almost up.

    This case does raise important issues, but only on the margins. That’s why the judge will fashion a very narrow opinion.In order for the larger Constitutional issues to be fully flushed out, a better case with a more credible respondent and on point facts will have to come along. It will, but until then, this case is esentially “first instance” and it’s understandable why EFF is pushing hard.

    I don’t know what a blogger is or isn’t but it seems to me that it’s time for reflection in the blogasphere. Because to argue that anyone with an IP address posting text is a blogger/reporter/journalist ain’t gonna fly.So this community better start creating standards & codes of conduct for itself, before someone else does.

  • tombeck

    I’m not aware that Microsoft “continually pushed back the release date for Longhorn”. That was the media. Microsoft kept saying “we’ll release it when it’s ready”. The media thought “oh it must come in 2005″. then it thought “oh it must come in 2006″. etc.

  • http://technovia.typepad.com Ian Betteridge

    Transgeek: I should, of course, put in every posting a big caveat – which is that I know Nick reasonably well, and know how he works. Trust me on this – by any rational standard, he’s a real reporter. But that’s by and by in the Asteroid case – which, I note from reading the court papers, no longer involves Think Secret at all (Nick has stated in a sworn submission in the other case that he TS did “no original reporting” in on Asteroid – hence no sources to reveal).

    Tombeck: While Microsoft never publicly announced a release date for Longhorn, don’t assume that it never had one – I don’t think you could manage a major project that *really* went with a “when it’s ready” ship date :)

  • transgeek

    Thanks for clarifying your relationship with him.I have no expertise in matters of journalism, so I’ll take your word for it that he works in a manner consistant with being a reporter. But that’s hard to see from the outside.

    I’ve read his site since he first started, as most Mac fans have. But I think the world has changed a great deal since the old days of the Mac rumor mill and there is now real potential for Apple, it’s shareholders & customers to be harmed.And I think that ought to be a consideration for a reporter.

    While I still support the outcome so far in these legal matters, I have never supported Apple’s stategy. Had I been in the room I would have advised Steve to just suck it up and live with it.Because it was obvious at the onset that these cases could turn a net swimming in postive Apple buzz into a net swimming with negative buzz and it just ain’t worth it.

  • Jim Harner

    Apple;s software and hardware is top of the line, but I do not support Apple in this case. However, I do understand why they are suing. I often delay Apple purchases for my department based on rumor site blogs. No one likes to buy a soon to be announced end-of-life product.

  • Biffy

    Come back & tell us when you are wrong.

  • http://blogs.linux.ie/stuff/ Mark

    Who’s libel if someone breaks an NDA and someone else tells the world about it?

    Talk of “corporate rights zealots”, is all well and good but does a person have a right to know who hasn’t honoured a contract both parties have signed in good faith?

    Take Apple out of the equation, you have a business who believe they are materially harmed by an employee or number of employees who continuously break legal contracts which they signed in good faith. So is it okay for journalists to be shielded under the law, but not anyone in business?

    Is Steve Jobs still a paranoid freak and as big a dork as he’s always been?

    -Yes.

    Should a company or individual have the ability to find out who is breaking a legal contract?

    -Yes.

    Do so called “IT Journalists” (A phrase which always makes me laugh when you look at the sewer your chosen profession has become over the last 20 years. More like the ass kissing/bitchy fashion press than journalism.), have the legal right to walk on water and ice skate across the legal rights of other parties?

    -No.

    Take out the “Apple emotion” argument, and it’s about a company putting the wood to a bunch of for profit ventures who benefit from, and are shielding, employees who put their jobs in jeopardy just to give someone else the skinny on colour screen iPod minis and other products which might not even materialise.

    That’s not journalism, that’s finding out what colour next seasons sling back Jimmy Choos might be. It’s fluff, and it might be a trade secret should the court say it is.

    The problem you guys are having with all this is that it looks like the law is on the company’s side, and a lot of the lazy shortcuts “IT journalists” have been taking for years now might just be illegal.

    Afraid of having to go get the news instead of having it drop into your inbox? I’d imagine a lot of the people who are “shocked” & “outraged” are just that.

  • http://technovia.typepad.com Ian Betteridge

    “Biffy” says “Come back & tell us when you are wrong.”

    Well hey, I kind of thought this was my blog and I’d say what I liked on it :)

  • http://technovia.typepad.com Ian Betteridge

    Mark says “Talk of “corporate rights zealots”, is all well and good but does a person have a right to know who hasn’t honoured a contract both parties have signed in good faith?”

    Of course they do. However, this has to be balanced with a journalists right to protect sources, something which you need overriding rules for. The question is two fold: What counts as a trade secret, and who decides.

    Now in the O’Grady case, Jason may have overstepped the line. Doing a trace-over copy of a schematic and lifting word-for-word from a Apple PowerPoint presentation (and shouldn’t they be using Keynote anyway?) isn’t something that, as a professional journalist, I’d do.

    However, in the Think Secret case, Nick Ciarelli gave a description of a future Apple product which, in my opinion, doesn’t amount to a trade secret – but which DOES amount to a standard report in a trade journal, of the type that thousands of companies haven’t chosen to go to court over. Ironically, it’s Ciarelli, not O’Grady, that’s being accused of a trade secrets violation for something that has far less impact.

    As for the ass-kissing/bitchiness of the IT press… yes, I’d agree with you that a lot of it’s like that. But that kind of makes my point for me. THAT’S the easy way to be an IT journalist – not the way that Nick does it. Nick gets zero co-operation from Apple (although actually that’s not a rarity – I get zero co-operation from Apple too) and has to work to get his stories. What’s more, they don’t “drop into his inbox” – if you read the submissions in the case, you’ll find that NONE of the sources for any of the stories in dispute came that way. In fact, I’d really suggest you read the documents in the case.

    In ten years as an IT journalist, I’ve never got a single tip that came via email from someone I didn’t know that was even worth following up. Like Nick, most of my stories come the old fashioned way – from talking to people, face to face or on the phone.