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Apple Pushes to Unmask Product Leaker 255

Posted by CowboyNeal
from the say-what-you-must dept.
Zack Wells writes "Should online journalists receive the same rights as traditional reporters? Apple claims they should not. Its lawyers say in court documents that Web scribes are not 'legitimate members of the press' when they reveal details about forthcoming products that the company would prefer to keep confidential. That argument has drawn stiff opposition from bloggers and traditional journalists. This is related to a case of an Apple news site, PowerPage.org, who leaked information about a FireWire audio interface for GarageBand that has been codenamed 'Asteroid.' The subpoena is on hold during the appeal. In the lawsuit, filed in late 2004, Apple is not suing the Mac news sites directly, but instead has focused on still-unnamed 'John Doe' defendants. The subpoena has been sent to Nfox.com, PowerPage's e-mail provider, which says it will comply if legally permitted."
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Apple Pushes to Unmask Product Leaker

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  • Apple gets so much attention, publicity & free defense from the bloggers.

    It would be stupid of them to alienate their biggest fanbase - but that's precisely what they're doing. Seems more like a personal vendetta then a business....
  • by ThePhilips (752041) on Friday April 21, 2006 @04:53AM (#15171600) Homepage Journal
    One thought came to my mind. In all, I can't imaging any other explanation why Apple would want to throw money on such litigations.

    Imaging scenario. Company X (Apple in the story) develops new cool product. Employee A leaks (for money or for fun) info about the product. Patent holding companies/competitors Alpha, Beta, Gamma, etc start patenting *everything* possibly related to the product. Product comes on market. Patents as usually get granted and competitors start sueing company X.

    What Apple (or any other company) can possibly do to avoid such situations???
  • by pimpimpim (811140) on Friday April 21, 2006 @04:53AM (#15171601)
    Thats the only correct answer to this, what are these apple people, stupid evil morons?

    Concerning the difference between an online and a paper-press journalist, you get the question, what is a journalist? The one who gets paid for it? Do you have to register somewhere? Freedom of speech should count for everyone equally anyway.

    From a practical point of view: Maybe bloggers that get troubles like this should subscribe to the journalist unions (or collective), just to have increased protection from the group.

  • by Yaztromo (655250) <`yaztromo' `at' `mac.com'> on Friday April 21, 2006 @04:56AM (#15171607) Homepage Journal

    This whole case still has me puzzled. Apple apparently was working on a product to provide a firewire break-out box for use with their GarageBand product. Someone inside Apple (or outside and on an NDA) leaked it to an Apple rumours website, which published it. Apple then fired off a lawsuit against John Doe, and decided to drag the website(s) in question to court to get them to reveal the identity of the source of the leak.

    All well and good, except one thing: where is the product? Whatever happened to this GarageBand break-out box? It has never materialized, and it's what -- a year-and-a-half later? You can't tell me that Apple suddenly decided to cancel this product just because news of it got leaked to the web. So far as I'm aware, it isn't like any of their competitors have such a product on the market, or that the leak has caused them any actual harm.

    It makes me wonder -- did this product ever really exist to begin with, or was this some sort of fake product "trap" to try to find the source of product leaks to rumour websites?

    Or is this product still in development, to be released at some later date?

    Something about all of this just doesn't strike me as right (besides the whole freedom of the press, and confidentiality of sources issues). It isn't as if this is the first Apple product to be leaked to the press. Perhaps this one was leaked well before Apple was ready to announce something? Does Apple think it knows who is leaking this information, but wants sufficient proof to fire them? Does "Asteroid" even exist (and it sounds like a useful product to me -- with GarageBand '06's new Podcast creation features, even I'm starting to think of interesting ways I can put something like this to use)?

    There is something more to this that Apple doesn't want us to know. I just can't quite pinpoint what is going on...

    Yaz.

  • by Anonymous Coward on Friday April 21, 2006 @05:00AM (#15171616)
    I think, perhaps unintentionally, they're laying new groundwork for the expansion of the 4th estate. It's pretty clear from the outright character assassination that was so common in print early on in our country's history that the founders intended the qualification for being a member of the press as having access to one. And look what technology and democracy has wrought, printing presses for all, distribution included. Any jackass with an opinion and a way to disseminate it is probably a member of the press. If Apple wants to keep secrets, perhaps they should hire people better at keeping them. Their other avenues for protecting their creations (patents, copyrights and trademarks) I presume they are already aware of. But when more onerous people with less benign intent come calling, we'll all have Apple to thank for the precedent.

    Hurt feelings will pass. But freedom found, see Roe V Wade, is tenacious weed once it has found purchase.
  • by pelorus (463100) on Friday April 21, 2006 @05:17AM (#15171650)
    Journalists should receive protections for when the information is in the public interest, which is different to whether certain (fanatic) members of the public are interested.

    Trade secrets leakage are probably NOT covered by first amendment freedom of speech. If the general public are protected by leakage, then yes. But if the only people this serves are self-interested, then should the laws designed to protect the public apply?
  • by elbrecht (211105) on Friday April 21, 2006 @05:21AM (#15171657)
    I think the point you are 'missing' is that of the two different roles involved - it took two people to raise this. One is the employee, who signed the contract with apple; he ore she therefore has to treat stuff as confidential. If those contracts were rendered moot, even security of government agency could not rely on having dealt out who wants to be loyal and who doesn't. Once Apple can legally (read: in court) prove who it was he well get fired, so what.

    The other thing is indeed if bloggers are journalists/press. Along with it come privileges and responsibility. I for one doubt the responsibility if you refer to the 'blogosphere'. The privilege of not disclosing sources is therefore fairly questionable and I think it is good if a court rules on that. However this turns out: I think the court should definitely explain this and how to put the responsibility onto bloggers to have them use press privileges - and what makes them fail the criteria and make them fall back on being just "free speech", for which you can not claim everything beyond personal views (and they should appear as such).

    Something to tell apart journalistic work (and responsibility) by whoever does it from the noise of the ranting link farms the blogosphere mostly is would be a great help. And the responsibility does indeed include to not publish whatever info you have if it greatly puts single persons or companies (etc.pp.) to an unfair disadvantage to others.
  • by Anonymous Coward on Friday April 21, 2006 @05:23AM (#15171663)
    "As much as bloggers like to be considered the new form of journalism they aren't, they are just people (often with overinflated ego's) who want to have their say."

    Just people who want to have their say, and you believe that a bad thing? You apparently don't believe they should have their say.

    You do realize, I hope, that eventually (probably not so long from now) all news media will be distributed primarily over computer networks?

    Do you understand the implication of this? How do you define "journalism"? Do you propose that freedom of the press should no longer exist once inking letters on flattened, processed dead trees is obsolete?
  • by jcr (53032) <jcr.mac@com> on Friday April 21, 2006 @05:30AM (#15171676) Journal
    wonder why Apple released BootCamp?

    No, I don't wonder. The reasons are many, and obvious.

    1) People were damaging their machines trying to follow the recipes on the web for booting XP; 2) the availability of Boot Camp removes one standard premise that coporate IT drones routinely use to veto Mac purchases; 3) Apple wanted to lower the sales barrier for individual buyers who have one or two Windows apps that they must run, for whatever reason: Virtual PC costs a couple hundred bucks, Boot Camp doesn't; 4) it provides a compelling sales advantage against the Dells and the HPs of the world, since they can't offer Mac OS.

    So, cram your stupid conspiracy theories back where they came from.

    -jcr
  • by jcr (53032) <jcr.mac@com> on Friday April 21, 2006 @05:32AM (#15171683) Journal
    Their other avenues for protecting their creations (patents, copyrights and trademarks) I presume they are already aware of.

    I see that you left out trade secret law, which is what this case is all about.

    -jcr
  • by Sycraft-fu (314770) on Friday April 21, 2006 @05:32AM (#15171684)
    Ok, hear me out on this. While I'm certianly one of the first to laugh at bloggers that seem to think they are real journalists and are the same as newspaper reporters, I do think they should be afforded the same protection. Why? Because we don't want the government deciding who is and isn't a member of the press. Press protections should be a function of what you are doing, not who you are. If you are reporting news (even if it's trivial news) you should be protected, even if you don't work for a paper. If you aren't, you shouldn't, even if you do.

    Take two cases:

    1) What we have here. A source leaks information from a company to a website (blog), who then publishes it. The website operator (blogger) did nothing wrong, they violated no law. The person leaking it broke an NDA, but that's not their concern. They should then be allowed to pretect their source because they are acting as a journalist, they are reporting the news to the public. Doesn't matter that their day job is clerk at Walmart, they are acting as a journalist in this case, thus should be protected.

    2) A person decides to leak some major secrets to a journalist for a major newspaper. However that journalist decides they don't want to publish them, but would rather to go a competitor and sell those secrets. It all gets found out and goes to court. Here, the journalist shoudl not be able to shield their source. Doesn't matter that they work as a journalist, they weren't acting as one. They were not reporting the information to the public, thus no protections.

    The protection should be in the act, not in who you are. Otherwise we are down a dangerous road to the government being able to decide who is a member of the press and who isn't. Publish something they (or their big donors) don't like? Oh look, all of a sudden your journalist license is revoked. You aren't allowed to protect your sources anymore and oh look, here's a subpoena for their names as well.

    We should give anyone who acts as a journalist the same protections as it relates to the reporting of informaton to the public.
  • by toadlife (301863) on Friday April 21, 2006 @05:37AM (#15171694) Journal
    "Virtual PC costs a couple hundred bucks, Boot Camp doesn't;"

    And unless Apple starts selling OEM compies of Windows with their machines, Apple users will be forced to pay full retail price for Windows, which is...a couple hundred bucks.
  • by jcr (53032) <jcr.mac@com> on Friday April 21, 2006 @05:41AM (#15171705) Journal
    You can't tell me that Apple suddenly decided to cancel this product just because news of it got leaked to the web.

    Let's see... A minor product like that, unlikely to ever generate even a whole percentange point of Apple's revenues? It's entirely possible that such a product got cancelled. It's even possible that anyone on that product team is now seeing their career at Apple stalled under a cloud of suspicion until the big mouthed asshole is identified and canned.

    If you were a manager at Apple, would you look to a team with known leaks for internal transfers? Would you take the chance on your own project ending up splashed all over the rumors sites?

    Make no mistake, this jerk didn't just violate his NDA (break his word), and violate the law, he also fucked over his colleagues.

    Whether bloggers are journalists is really beside the point here. Even if the asswipe had been talking to the Wall Street Journal, Apple should still be suing to find out his identity any way they can. As a shareholder, I expect no less.

    -jcr
  • by bitkari (195639) on Friday April 21, 2006 @05:45AM (#15171712) Homepage
    As much as bloggers like to be considered the new form of journalism they aren't, they are just people (often with overinflated ego's) who want to have their say.

    So what exactly is the difference between a 'blogger' and a 'journalist'?

    A journalist is merely a person that records information, usually for publication.

    Certainly, a typical blogger often writes more opinion than fact. However, the same can certainly be said for a great many 'real' journalists and contributing writers for many publications, both online and offline - none of whom would be raked over the coals by Apple for being given leaked trade secrets.

    Just because someone has the backing of a large media conglomerate, publishing house, or broadcaster, doesn't make them more of a journalist than a freelance writer with their own website.
  • I agree that the fact that I have a Live Journal does not grant me journalistic privledge, but at some point a blogger does have such privledge. Otherwise, you simply make an arbitrary distinction as to rights based on the medium on which the story is presented. If I print out the story, does the author have privledge?

    By your definition Kos (of Daily Kos fame) is not a journalist because he never was a "real journalist", assuming that means someone who publishes in a printed medium. Is that what you wish us to believe?
  • by gEvil (beta) (945888) on Friday April 21, 2006 @05:51AM (#15171724)
    *DING*DING*DING*DING*

    This gets right to the heart of the matter. So many of you seem to be saying that even if you've signed an NDA, you should be able to tell people about those trade secrets, so long as they promise to write about them. The point is that the entity writing about it needs to have a legitimate reason to be doing so. Informing a concerned public is a far cry from satiating rabid fanboys. And it seems that where exactly that line falls will be decided by the court.
  • by jcr (53032) <jcr.mac@com> on Friday April 21, 2006 @05:56AM (#15171734) Journal
    I can't imaging any other explanation why Apple would want to throw money on such litigations.

    Let me try to give you an idea of why product secrecy is so important to Apple.

    Remember the G4 iMac? Remember seeing it on the cover of Time?

    Apple got that cover story because 1) it was news, and 2) they were able to promise Time an exclusive on the story. You can't buy the cover of Time as an ad placemement, but if you could, it's probably worth about a hundred million bucks.

    Apple has come a long way from the days when you could find out everything that was happening there just by having lunch in any restaurant within ten miles of the campus. Apple can't just let this go, because letting it go is a lousy thing to do to all the Apple employees who do honor their agreements and STFU about upcoming products.

    -jcr

  • by jcr (53032) <jcr.mac@com> on Friday April 21, 2006 @05:58AM (#15171739) Journal
    Exactly. We're not talking about whistle-blowing, we're talking about some jerk trying to look like a big shot to the bloger he's feeding info to.

    -jcr
  • by grimwell (141031) on Friday April 21, 2006 @06:10AM (#15171767)
    Journalists should receive protections for when the information is in the public interest, which is different to whether certain (fanatic) members of the public are interested.

    Why just "journalists"? Why not extend that protection to anyone who might have some information that is in the public interest?

    Hint: Whistleblower laws

    Trade secrets leakage are probably NOT covered by first amendment freedom of speech. If the general public are protected by leakage, then yes. But if the only people this serves are self-interested, then should the laws designed to protect the public apply

    Really? A trade secret is more important than the Right of Free Speech? Really?

    Try this on for size..... The general public is protected by the leakage or the leakage is in the general public's interest because the ability to leak re-affirms the general public's Right of Free Speech.

    Granting non-living entities rights&priviledges that superceed my rights is a bad&dangerous thing to do.
  • What spooks me is (Score:1, Insightful)

    by uncle_sum_ (968879) on Friday April 21, 2006 @06:15AM (#15171780)
    this quote:

    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 Macintosh news sites) are doing nothing more than feeding the public's insatiable desire for information," Kleinberg wrote at the time.

    so now the caveat to freedom of the press is: print what you like, so long as what you print is evidence of a health, safety or welfare hazard affecting all, or a government employee who reveals mismanagement.

  • by mkiwi (585287) on Friday April 21, 2006 @06:22AM (#15171796)
    I have a method, not exactly scientific, but very practica, to tell whether someone is a journalist or not.

    If someone is able to obtain a press pass to an event by company A, company A considers them a journalist.

    Further, if a blogger can get a press pass at MacWorld or WWDC, more power to them- they are journalists.

    Otherwise, they are not, and they don't have a company behind them to protect them from lawsuits.


    $0.02

  • Remember the G4 iMac? Remember seeing it on the cover of Time?

    For those of you who don't remember - you can see the cover (with steve jobs looking quite sexy, iMac in background) here [time.com] (I kid, I kid, real cover here) [time.com]

    Apple got that cover story because 1) it was news, and 2) they were able to promise Time an exclusive on the story. You can't buy the cover of Time as an ad placemement, but if you could, it's probably worth about a hundred million bucks.

    No - Apple got the cover story because the iMac looked damn sexy - it was different from the vast majority of PCs that came before it.

    If you really think Apple would stop getting this sort of publicity if their was pre leaks (with photoshopped mockup pics), then consider the car industry (the car/computer analogy never gets old).

    When any high end car maker announces a new/cool model, it will make the front pages of all the car mags, in spite of the fact that the specs, look of the body, etc etc have all been known for months if not years. Why? Because they look cool - and the product launch is the first time the public knows for sure that this is what the product will be.

    Apple will continue to get Time covers as long as it continues to make good looking products. It is nonsensical to suggest that these leaks will cost Apple hundreds of millions of dollars worth of publicity.
  • by way2trivial (601132) on Friday April 21, 2006 @06:24AM (#15171808) Homepage Journal
    One individual, buying a cd-key from a dell owner, no one will come after you- but the grander market here, the one that the GP post is referring to- is the large, corporate, lawyer controlled, and sometimes silly- business market.. where 1000 pcs on 1000 desks can get a licensing lawsuit going.. and if they try to purchase 1000 xp cd keys from dell linux users, that lawsuit is smoking depending on which court you live near.
    http://en.wikipedia.org/wiki/First_sale_doctrine [wikipedia.org]

    esp the section that reads in part
    The acts specifically excluded:

    A computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or
  • by AMindLost (967567) on Friday April 21, 2006 @06:25AM (#15171809) Homepage
    I agree, although I also find it difficult to characterise bloggers and online 'fan' page writers as journalists. The logic is sound that someone providing information of public interest should have protection as they are acting in the capacity of a journalist. Out of curiosity, is a gossip columnist in a newspaper classed as a journalist? If so the argument that online publishers are not must surely be weakened?
  • by Anonymous Coward on Friday April 21, 2006 @06:51AM (#15171863)
    The first part of your idea is one thing, but the last part worries me. Specifically "Otherwise, they are not, and they don't have a company behind them to protect them from lawsuits."

    That certainly runs right down a slippery slope where big money, and ONLY big money, controls the news. I know most distribution is done by huge media conglomerates now, but keep going that way and you run the risk of the entire news spectrum being filtered through the veil of money and government collusion.

  • by Bravoc (771258) on Friday April 21, 2006 @07:05AM (#15171929) Journal
    Because we don't want the government deciding who is and isn't a member of the press.

    Bingo! Exactly! Yes! You took the words right our of my ...er fingers.

    THANK YOU!
  • by Ironsides (739422) on Friday April 21, 2006 @07:43AM (#15172099) Homepage Journal
    Granting non-living entities rights&priviledges that superceed my rights is a bad&dangerous thing to do.

    Who said anything about a non-living entity? NDAs can be between two people. A trade secret can be owned by an individual as well. The same trade secret laws would still apply.

    As for superceeding your rights. "The right of the people to be secure in their persons, houses, papers, and effects" and it's implicit granting of privacy doesn't superseed your right to free speech. You can still say what you want, just that you may have to suffer the consequences for spying on people.

    All it is doing is giving a non-living entity that is made up of living entities a few of the same rights and privlidges an individual has.
  • by tomcres (925786) on Friday April 21, 2006 @07:45AM (#15172113)
    Mind you, that's still illegal. First sale does not apply here. The license for OEM versions of Windows explicitly ties it to the hardware it was purchased with. If you replace your Dell with something else, you need to get another copy of Windows. Your license only was valid for the Dell computer the OEM Windows was bundled with.
  • by corellon13 (922091) on Friday April 21, 2006 @08:06AM (#15172281)
    "Something about all of this just doesn't strike me as right (besides the whole freedom of the press, and confidentiality of sources issues)"

    Is is just me or does this situation seem more like corporate espionage than leaking a news story? Freedom of the press is critical to have a truely free society, but what news story did this break? What was it with this story that the people needed to know in order to maintain a free and informed society? I may be off base, but it just seems to me that the people involved in this (not Apple) are hiding behind a law that I think doesn't apply to them.
  • by everphilski (877346) on Friday April 21, 2006 @08:18AM (#15172375) Journal
    The difference *I* see is that the supposed anonymity of a blogger - working from their home behind the front of whatever service they use , using whatever handle they choose - allows them to lash out irrationally. Journalists on the other hand are tied to their real name and to a paycheck. They can hide sources but they can't hide who they are and who they represent. There is a missing layer of credibility in the blog system, and yes there are journalists who lose their credibility but generally when they do they also lose their paycheck and their post.
  • by ivan256 (17499) * on Friday April 21, 2006 @08:36AM (#15172512)
    The real problem here is that real journalists shouldn't have a lot of the rights that real journalists have... If they didn't, among other great things, we wouldn't neet to worry about the distinction.

    If a journalist (blogger or otherwise) won't reveal the name a of a law breaking source, the journalist should be heald accountable in proxy. Combine that with the appropriate laws to protect whistle blowers, and we won't need a double standard to distinguish journalists from regular people. We'd also get the added benefit that journalists would no longer be able to make shit up and then say they used an anonymous source.

    What is the point of slander, trade secret, or classification laws if they can be circumvented just by telling a journalist instead of some randome Joe?
  • by LMariachi (86077) on Friday April 21, 2006 @08:46AM (#15172630) Journal
    First of all, without the ability to track down the source of a trade secret leak, trade secret law has exactly zero teeth. Anyone can violate it with impunity simply by anonymously releasing the information to a third party for publication instead of putting it on their own website. (The "journalist/citizen blogger" distinction is a red herring, utterly irrelevant.) If you want to argue that there should be no such thing as trade secret protection, go ahead and argue that, but this position that "trade secrets should be protected but not in any way that's actually enforceable" is untenably absurd.

    Secondly: Third parties outside the employer-employee NDA do indeed have a legal obligation, namely to not entice said employees to violate the law. Whether O'Grady actually engaged in such enticement, directly or indirectly, is for a court to decide, but there is no question that such enticement is itself illegal.

  • by 99BottlesOfBeerInMyF (813746) on Friday April 21, 2006 @09:36AM (#15173196)

    Ok, hear me out on this. While I'm certianly[sic] one of the first to laugh at bloggers that seem to think they are real journalists and are the same as newspaper reporters, I do think they should be afforded the same protection.

    Well, you're in luck. The law clearly defines anyone who writes for a public audience as a member of the press with the same protections as a writer for the NY Times. In fact, I suspect this whole article is a rather sensationalist spin. The actual arguments are never given, only, "Web scribes are not 'legitimate members of the press' when they reveal details about forthcoming products..."

    Who is a "legitimate member of the press in legalese? Any person who is writing for the public and is not breaking the law. Since this person was breaking the law, they are not legitimate.

    Press protections should be a function of what you are doing, not who you are.

    The law agrees with you, 95% (exceptions are a few weird state laws).

    What we have here. A source leaks information from a company to a website (blog), who then publishes it. The website operator (blogger) did nothing wrong, they violated no law.

    Here is where you are mistaken. It is against the law for a journalist to publish information they know or should reasonably suspect are trade secrets. Veteran rumor site operators who have been sued for this numerous times, are making a profit, and are getting information from people who claim to be Apple employees, fall pretty assuredly in this category.

    They should then be allowed to pretect their source because they are acting as a journalist, they are reporting the news to the public.

    The only special protection journalists have that would protect them from prosecution for publishing said trade secrets are whistle-blower laws. These are similar in most states, but basically say that if you break the law in the process of publishing a story that fits certain criteria, then you are sheltered from prosecution. The catch is, the criteria for that story is that is must reveal a public health concern, government corruption, or other information of vital, overriding public interest. Do you think the specs for a new Apple device of any sort fit this criteria?

    We should give anyone who acts as a journalist the same protections as it relates to the reporting of informaton to the public.

    Federal law agrees with you, and almost all state laws do as well. The problem is, professional journalists are not allowed to reveal this information any more than bloggers are.

    I'm actually pretty impressed with Apple's handling of all of these issues. They've done everything right and avoided all the sleazy actions I complain about for a number of other companies (i.e. RIAA, MS). They filed their lawsuit against the actual leaker, not some blogger. They did not try to shut down or threaten the blogger with a lawsuit by threatening extortionate amounts of damages. They did not try to get the blogger's site shut down via the DMCA. They did not threaten the blogger's ISP and demand records. They properly filed a John Doe lawsuit (the proper but harder target) instead of filing suit against the blogger (which they would almost certainly win).

    I'm actually somewhat undecided on the issue of trade secrets in general, but given that they exist and Apple has to do business and compete in this environment, they seem to be doing the right thing. They are actually using the legal system the way it is supposed to be used to legitimately defend their rights under the law, not to bully or intimidate those with fewer resources. It figures that some other journalist would try to spin this the other way to be more sensationalist.

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