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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law, which gives journalists immunity from contempt of court proceedings where they are ordered to reveal sources or unpublished source material.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.

Comments on this entry are closed.

  • John

    Hi Ian,

    Thanks for providing a very good summary and context and steering people away from hysteria, and I agree with your conclusion about the lack of threat to freedom of speech.

    I’m all tired out of talking about this, but after stepping back and as I began to allude to in my last post yesterday on the other thread, I really think Apple doesn’t care that much about the details of the specific cases here (except of course when they have to defend it in the courtroom). My conclusion: They simply want to put a stop to people breaking NDAs because someone somewhere down the line will wind up leaking something very crucial to the company’s success. And they want the web sites to cooperate by not creating demand for people to break NDAs by having the web sites not indicate that the published info was insider info.

    So go ahead and speculate, draw you own pictures, and make up your own rumors based on trends. Just don’t say that you are looking at internal documents, or quote codenames tied to specifications, or publish exact copies of Apple NDAed photos or documents. When I think of all the times that Apple has sued or warned sites, one of these three things are present. (And in the Thurrott-winsupersite case, he said he was looking at internal documents and now it’s gone. He’s a real MS fanboy.)

    The analogy I have is with US military information. Oftentimes, as we (US) work with foreign nations like the UK, it is clear that they have information (usually they found it on the web) that has not been cleared for foreign release by the US Defense or State Department. They will bring up the document and start asking questions and advice. My US modus operandi is to discuss the technology and its possibilities in a generic way, and never acknowledge whether the document they are looking at is official policy or direction. In the same way, I think Apple would be satisfied if people just talked about possible future products and directions, including inside info if they have it, but just never indicate that they do.

    My last 2 cents. Although I don’t agree with you completely, thanks again for a stimulating and reasoned exchange of viewpoints.

  • some bub

    when you say “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.”

    You should probably add “of the things that I read” or “stuff that interests mac enthusiasts” because, you know, I really doubt it’s Google’s most traffic’d search or even the number blog topic on technorati or anything like that.

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