Rothenberg on Think Secret

Posted on March 9, 2005 by Ian Betteridge

In a posting on his blog entitled Is Apple Worth It? Mac journalism veteren Matthew Rothenberg comments on the Think Secret case. As a former MacWEEK’er, Matthew has a very good insight into the relationship between Apple and the media, and into what makes a good story. As he puts it:

No one has ever accused Apple of being too mouthy about its forthcoming products, and no one has ever provided me with a shred of evidence that advance word from Mac sites has reduced Apple sales by a single unit. Nor do I accept the canard that these reports comprise “trade secrets” by any reasonable definition of the phrase. Source code is a trade secret. A report that Apple will release a low-cost Mac the next week is not a trade secret.

This isn’t about the reasonable protection of intellectual property, to which Apple has every right. This is about Apple’s corporate mania for marketing control, which sadly gives the lie to the very corporate image it tries to market.

The definition of what is and is not a trade secret is the key element of the Think Secret case, if you ignore the absurd idea that Think Secret is not engaged in journalism, which is a nonsense of the highest order. If trade secrets means any information about future products, no matter how vague, then every trade magazine and news paper in the world might as well pack up shop and go home. It would open journalists like Mary Jo Foley, who I listened to in an interview this morning talking about Microsoft’s plans to run Linux on Windows, to a law suit every day of the week. It would shift the balance too far in the favour of corporations, and away from items that are of legitimate public interest.

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  • John

    You’re overstating the case. Has Apple sued all the others, like the Mac Night Owl, that have pleaded with Apple for a low-cost headless Mac and discussed the possibilities and price ad nauseam over the prior 2 years? No. So it’s not “no matter how vague.” I don’t see this curtailing personal expression in the least, as long as you aren’t taking something that is an NDA and publishing it. In this instance, those sites had specific info from people who broke NDAs (and Apple knows it), and they published it.

    There are many ways to put out speculative information in trade magazines that don’t come close to revealing specific info that have been NDAed. They discuss technology and trends, and the likelihood of possible products and services without resorting to any trade secrets. So I think you’re blowing this way out of proportion and being used by Think Secret. (I’m sure you think I’m being used by Apple.)

    By the way, did Foley have a date (month/year) for the Linux for Windows release?

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

    First of all, the NDA issue is irrelevant here: whether an NDA is broken or not, something can be a trade secret and thus protected under UTSA. And there’s nothing illegal about taking something that’s under NDA and publishing it, as you long as you’re not under NDA yourself.

    You’re right that there are many ways for trade magazines to put out info – and trade magazines have a long tradition of putting out exactly the kinds of reports that Think Secret has specialised in.

    No, I don’t think you’re being used by Apple – and I’m certainly not being used by Think Secret, although I do know Nick.

    MJ didn’t have a date for that release, but has dated items in the past – check through http://www.microsoft-watch.com for details…

  • Chris

    I think that you’re missing one part of this story. Nick pretty much published the final specs for the Mini! And every day counts before you show your hand to the competition, as we’ve already seen Intel demonstrate its own mini concept this past week.

  • John

    From the USTA: “Misappropriation ” means: (i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his position, knew or had reason to know that it was a trade secret ad that knowledge of it had been acquired by accident or mistake.”

    So, it is illegal to take something under NDA (a trade secret) and publish it even though you are not under NDA yourself, if you had reason to believe it was acquired under improper means. I believe this is why generally companies only warn the first time around.

    I agree that NDAs is not the point of this suit. It only relates in that NDAs are a reasonable effort to maintain the secrecy of the info (this is the second part of what it means to be a trade secret).

    Where I disagree with you is that trade magazines do not put out reports like some (not all) of those at Think Secret. The rumor columns in IT magazines are very vague. (Maybe the rumor columns in auto magazines have much more detail but I think those are planted by the mfrs themselves.) I do read Microsoft-Watch and have yet to see something as specific as Think Secret’s report on the Mac mini with as large as a two-week lead time. Note Apple has not sued over a day-early or two-day-early release.

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

    We’ve seen Intel demonstrate an empty box this week, nothing more – and the handful of days between Nick’s publication and Apple’s announcement will have made no difference to the competition’s ability to come up with a response.

    No PC maker has yet come up with something as good technologically as the Cube, which was released five years ago. If they can’t match Apple in five years, I doubt they can do it in a few days.

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

    John says: “So, it is illegal to take something under NDA (a trade secret) and publish it even though you are not under NDA yourself, if you had reason to believe it was acquired under improper means.”

    Which of course is why you don’t ask if someone is under NDA if they reveal anything to you. Yes, I’m being sticky about this – but that’s the way you have to work as a trade journalist. And, as you allude to, an NDA doesn’t indicate a trade secret, and not all all trade secrets are even covered by NDAs.

    As for vagueness, it depends where you read. Many times MacWEEK wrote pretty much exact specs of new Apple machines. Where the rumours were more vague, it went into MacTheKnife instead. For an example of a very specific site, take a look at Paul Thurrott’s Windows SupeSite – http://www.winsupersite.com/ – and especially that big, fat list of forthcoming products and reports on them at the right.

  • cappucino

    “A report that Apple will release a low-cost Mac the next week is not a trade secret.” — Matthew Rothenberg

    And Apple did not sue Think Secret for publishing the release date of a low-cost Mac. It is amazing how people are using so much inaccurate information to justify their point of view. Think Secret publishes more than just intelligent guesses based on an analysis from the news. How can one describe accurately components of the next PowerMacs of iPods? Furthermore, how can you make a guess about Asteroid?

    Understandably, journalists especially with a blog presence is biased toward anything that remotely threatens their ideals, but saying that bloggers are journalists is stretching it close to the breaking point.

    _Some_ bloggers _are_ journalists. But _not all_ bloggers are journalists.

    Journalism concerns with news and opinion that is based on truth. And there is ethic in journalism. Encouraging people to break their NDA, a legally binding contract, is not one of them. It’s one thing to protect whistleblowers who break news to expose a serious crime, it’s another thing to protect the sources whose very action is breaking a law.

    You want to be considered a journalist? Then act like one. That includes paying close attention to ethics.

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

    Cappucino, I don’t follow your argument – probably because you’re conflating two entirely seperate cases. Apple has not sued Think Secret over releasing so-called trade secrets concerning Asteroid. Apple has supoenad Think Secret for source material concerning an attempt to track down who broke an NDA over Asteroid. And, as Nick Ciarelli says in his court submission in the other case, Think Secret did no original reporting on Asteroid anyway, and thus has no NDA’d materials.

    Putting your email address up is not encouraging anyone to break an NDA. Nor is requesting information about future products (this has been established in other, similar cases). Nor is providing for anonymous tips, although you almost never get any usable information like that anyway.

  • John

    Thurrott’s list includes everything that MS has already shown on its own public roadmaps/announcements. Because it is a market-dominating monopoly, MS works through vaporware to freeze its customers from switching.

    He doesn’t have detail beyond what you can find on MS’ own blogs (msdn) for all the stuff through Longhorn. And given Longhorn’s shiftiness, I can’t see that anything he writes for the products after that are worth anything.

  • Omar Rahman

    If Asteroid is a product that is still early in its developement and represents a new genre of computing equipment this trade secret could indeed be very valuable and to me this whole issue seems to revolve around this point and this point alone.

    The free speech issues are important in a wider socio-political context. In the end free speech will be maintained, the UTSA will be upheld, and blogging will experience a nice little growing pain. In fact, In the long run this debate is extremely healty for blogging; perhaps it could lead to a bloggers guild with a uniform code of ethics similar to that which ‘normal’ journalists _should_ adhere to.

    My prediction of the final result: Apple plugs a leak at a high PR cost and blogging gets legitimized and held resonsible by being scruntinized in court.

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

    John, check out Thurrott’s coverage of Office 12.

    Omar, I’d agree with you – but from the coverage, I’d say there’s nothing new about Asteroid. What’s more, Think Secret did no original reporting on it.

  • John

    Hi Ian, I did check out the Office 12 earlier today and found the future vision part somewhat detailed and possibly close to a trade secret since it implied it came from internal MS documents. But the description of updates to some of the Office pieces just seemed like natural evolution – fix bugs, extend to more functions, etc.

    But I went to check again to quote specific words for this post and it’s gone, at the request of Microsoft. I think you “outed” Paul! (I swear that I did not report him to Microsoft!)

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

    John – you’re right, I can’t find it either! Time to investigate…

  • steve

    Seems like there’s only one post that matters above, and that’s the quote from the USTA which plainly says it is illegal.

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

    Steve, it plainly says no such thing: Think Secret reported none of the things cited.

  • Joel

    i should probably point out if no one else has (maybe I missed it), that Rothenberg has penned stories with Nick Ciarelli in the past. There’s arguably a conflict of interest right there.