Why the Think Secret case is being overplayed, by everyone

The issue of Think Secret’s multiple legal tussles with Apple Computer has probably caused more interest – and more confusion – than anything surfacing on the web in the past few weeks. There’s a lot of conflating of issues, cases, people and reports, and some of the comments – on both sides of the argument – are bordering on hysteria. So I thought that it was worth clarifying the issues and points involved.

For a start, it’s important to totally seperate the two cases where Apple is legally tangling with Think Secret. In one case, Apple is attempting to subpoena TS, AppleInsider, and PowerPage to reveal their sources for stories about Asteroid, a supposed audio breakout box that Apple is producing (ironically, by filing the subpoenas Apple has effectively confirmed the stories were correct).

In this case, all three sites are attempting to gain the protection of California’s so-called “journalist shield” law, which gives journalists immunity from contempt of court proceedings where they are ordered to reveal sources or unpublished source material.

The key thing here isn’t that the stories printed were about Apple trade secrets: in order to get a subpoena, all Apple has to show is that it’s likely that someone, somewhere, is likely to have broken an NDA, and that it wants to determine who the leaker was. What matters in this case is whether the sites are covered by the journalist shield law. There is clear precedent that, even cases where the information was gained illegally, the journalist shield applies and, if the sites are held to be journalists, they can’t be forced to reveal sources. The only exception to this is if Apple were accusing the sites themselves of acting illegally, which would make them a party to a case, and thus forfitting their rights under the shield law. Apple is not making that accusation, and has not brought any case concerning Asteroid against any site. Hence Apple’s concentration in its submissions in showing that the sites were “not engaged in legitimate journalism”.

My opinion on this is that it’s quite clearly nonsense. There’s little difference in style or method between a Think Secret story and one which could be published in a hundred trade magazines around the world. I’ve had occasion to work with Nick Ciarelli in the past (I’m a journalist with 10 year experience covering the Mac market) and, despite his tender years, he’s a real, good journalist. But which ever way you slice it, the ONLY issue in this case is if the sites are journalistic in nature or not.

The second case is more complex. Apple is accusing Think Secret along of violating its trade secrets rights with stories about iSync 1.1 (dating back to 2003), iWork and the Mac mini. Here, there are three issues:

1. Whether the reports are protected under the First amendment.
2. Whether the stories did, in fact, reveal trade secrets.
3. Whether in fact what Apple is claiming are trade secrets actually are, in fact, covered by the law.

I’m inclined to agree that there’s no First Amendment issue here. While the stories are of public interest, and could be arguing to be in the public interest, it’s at best relative minor and is probably outweighed by Apple’s right to keep secret its projects before release.

However, the other two issues have more merit. Think Secret did not, as has been claimed a lot around the web, give all the details of the Mac mini. In fact, its report was wrong on a number of key points, and vague about the design of the box. It didn’t give the name, there was no drawing of the product, and it would have been extremely difficult for any competitor to produce a “spoiler” product based on the report. The same is true for the other reports. I’d argue that the reports were actually vague enough to fall outside the notion of revealing trade secrets, and instead fall into the long-standing practice in trade journalism of informed speculative pieces.

This raises point number three: where the facts revealed actually covered by trade secrets law? Trade secrets law was intended to prevent economic damage to companies caused by the premature release of information, either by allowing competitors to produce “me too” products (or use FUD) or by dissuading consumers from buying the previous model. Clearly, the details in the Think Secret stories were too vague to allow competitors to create spoiler products. Had you made a machine based on the description in the Think Secret piece on the Mac mini, for example, you’d have ended up with something more like a Mac LC than a Mac mini.

So that rules out that aspect of economic damage. What about the sales factor? Well, the Think Secret report on the Mac mini appeared about two weeks before the keynote itself – hardly a vast amount of time. What’s more, few people buy in the couple of weeks before a Macworld, for the very good reason that it’s almost certain something new will come out. The kind of people who do buy aren’t the kind that read Think Secret. What’s more, Think Secret wasn’t the first site to report that a very low-cost Mac was likely to appear at Macworld: the cat, really, was out of the bag long before that, in vague reports and murmerings.

Scoble is right when he says that trade journalism is necessarily adversarial. The aim of a good trade journalist is to find out everything that’s going on in his industry, whether that’s a trade secret or not. Like most kinds of journalist, trade journo’s are gossips: we’re highly social people.

But what matters is what you do with that information. Personally, I don’t think that Think Secret’s stories overstepped the mark, because they were actually fairly generic and vague. Those who are talking of this as a threat to freedom of speech are wrong: at worst, it will reaffirm that you can’t print trade secrets, and that not everyone is a journalist. However, those who are talking about Apple’s absolute right to crack down on anyone who even mentions a new product are equally wrong. Some things simply aren’t trade secrets: and I’d say that nothing in Think Secret’s original reports is actually in that category.