John Gruber writes on the differences between Think Secret and the New York Times, in On the Credibility of The New York Times. One passage sticks out:
Markoff quotes analysts and unnamed individuals “close to the company”, but offers no genuine inside information from Apple employees. Now, obviously, one reason for that is that he was wrong — Apple was not on the cusp of releasing an iPhone in 2002. But even if Apple had gone on to release an iPhone soon after Markoff’s report, it wouldn’t have been grounds for Apple to sue The Times. Speculation is not a violation of trade secret law.
Ignore the fact that Markoff was wrong, for a second, and suppose that he was right. Who were those “sources close to the company”? Almost certainly, they were third parties – developers, hardware makers, or major customers – who had been briefed about the putative product under NDA. Markoff, of course, would have spoken to these people and asked them if they knew anything. At no point would he have asked them to break an NDA – in fact, as standard procedure, he wouldn’t have even asked if they were under NDA.
However, he would certainly have known that the information published would have been a trade secret under the restrictive definition that the court has applied. He would also have been guilty of soliciting for trade secrets simply by asking if someone knew anything about a new Apple product. He would certainly have offered the source anonymity – again, an inducement under the rules the court in the recent case has laid out. Clearly, John G is wrong on this one: Apple would have had grounds to sue.
Now, what was that difference between the NYT and Think Secret again? In this case, there is none. Of course, the real difference is simply that Apple wants to keep on the right side of the NYT, because it values positive coverage from the paper.