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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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January 10, 2005

EFF to Apple: Back Off

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Macworld kicks off tomorrow, but a behind-the-scenes drama has already begun to unfold. Over the past few weeks, Apple has been sending legal threats to the publishers of the Mac-centric weblogs AppleInsider and PowerPage for posting details about a new Apple product code-named "Asteroid." Apple has even obtained a court order to served subpoenas asking subpoena for the identities of the people who leaked the information. Today, EFF announced that it's representing the publishers to defend their right to keep their sources secret:

"Bloggers break the news, just like journalists do. They must be able to promise confidentiality in order to maintain the free flow of information," said EFF Staff
Attorney Kurt Opsahl. "Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society."

"I am very disappointed by Apple's behavior and its new policy of issuing legal threats to its best customers," added Jason O'Grady, publisher of PowerPage. "Is corporate paranoia really more important than the First Amendment?"

AppleInsider and PowerPage aren't alone; Apple has also targeted Think Secret and three people who allegedly posted a developer build of MacOS 10.4 via Bit Torrent.

It will be interesting to see what the resolution of each of these conflicts will reveal about the nature of speech on the Internet today. There are critical differences in the circumstances of each "case." Where will the courts draw the line between breaking the news and breaking the law?

Comments (6) + TrackBacks (0) | Category: Speech


1. annon on January 10, 2005 7:42 PM writes...

this isn't about free speech or first ammendment rights

this is about people who have signed NDA's breaking that agreement and leaking trade secrets, this is about people that know that Apple requires its employees to sign NDA's as part of their employement contract and those people breaking that agreement

this is about honesty and integrity

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2. karl on January 10, 2005 7:50 PM writes...

What does any of this have to do with free speech? Apple isn't sueing anyone to shut their mouths, since you can't sue people to take away their rights. Apple is sueing people that are breaking laws and disemenating trade secrets.

Thinksecret is usually a den of outlandish theories about up and coming products and upgrades. None of that is illegal, anyone that has been a longtime mac user can do the same.

The reason they are getting sued is because they had knowledge that could only have come from someone that is under a legal obligation NOT to disclose it. The closest thing would be a reporter whose source is a whistleblower, they have a legitimate story that the public is entitled to know about since it involves a company actively breaking the law. But here we don't have that, we have people working hard to make interesting products and having said product details stolen and released to all before completion.

If they had even made teh rumors ambiguous they would have no problems, but they made a perfect sketch of the final product, gave details of size, weight, components, building materials, and capabilities. This gives competitors information about up and coming products before they hit the market, and thus an oppurtunity to usurp Apple's leadership in a new market.

In short, this isn't freedom of speech and I simply don't see how people continue to attempt to twist the situation to seem so. If I had stolen unreleased music from an artist there would be no question that was wrong, why is this so different?

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3. NordicMan on January 10, 2005 8:20 PM writes...

I am for the protection of the first amendment, we seem to be losing many of the protections that our founding fathers/brothers achieved for us.

Yet, how is it that the first amendment has been abridged by Apple's lawsuit? ThinkSecret purportedly is paying people to break nondisclosure agreements. Are they? There is some room for a possibly valid argument that it is the same as poaching trade secrets. The former poster points out that taking unpublished music is stealing.

I agree that Apple's first issue is with those who broke the agreement. And, if someone goes to a writer, then the writer has put forth information that they received. But what if they pay for secrets to be revealed?

Anyway, I hope that ThinkSecret and the PowerPage and the other pages hold with the Mac, it is a good platform, and I hope that they are not much pinched.

This all really brings more attention to Apple's products, hopefully it will fade quietly, now that MacWorld begins tomorrow.

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4. Ace Fury on January 10, 2005 9:08 PM writes...

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
So NDAs are illegal under the First Amendment? Interesting. If ThinkSecret had a case the ACLU would be all over Apple. The very act of sueing someone isn't a violation of any Amendment, in fact being able to sue is right we all have - winning is another story all together.

Permalink to Comment

5. t rex on January 10, 2005 9:34 PM writes...

I really have mixed feelings on this. While I'm a firm believer in the First Amendment, the issue here seems to be trade secrets and NDAs, not free speech. Apple seems to be within their rights to sue on these counts, but at the cost of potentially alienating some of their most hardcore fans. Apparently they are willing to take that risk.

Apple has a long history of not tolerating leaks, and takes extreme measures to ensure the secrecy of new products. While their reasoning is sometimes a bit mystifying, it is literally their business, not the fan base's, to make decisions concerning the release of information.

A reporter's right to protection under the First Amendment should be extended in cases where the reporting provides information critical to the well-being of the public-at-large, as in the case of political muckraking or corporate malfeasance/misconduct. To the contrary, unless it can be proven that (as it has been suggested by WIRED and others) Apple conspired to leak the information in question, the argument for protection is weak at best, and likely would not stand in court.

On the other hand, Apple is getting a HUGE amount of free publicity out of the current situation. Any advantage Apple gains as a result of these leaks could be argued in court as exploiting "bad" press, even if it was unintentional. But in order to gain this advantage the "rumors" would have to be 100% true, because if the rumors are false, the letdown could have a disastrous effect on their stock price and reputation.

As much as I love the Mac sites being sued, it's tough to find fault in Apple's desire to quash rumors.

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6. Rad Geek on January 24, 2005 2:43 PM writes...

Five comments on NDAs, and none of them at all are to the point.

The reason that Apple's legal brickbats are problematic from a free speech standpoint is not that the First Amendment somehow prohibits contractual NDAs. It doesn't. But the publishers of ThinkSecret, AppleInsider, and PowerPage never signed an NDA with Apple. They never made any agreement with Apple that they wouldn't leak any information that comes into their grubby little hands, and they're under no legally enforceable obligation whatsoever not to do so.

Apple has every right to pursue legal action against people who have breached their contract, but they have no right at all to use legal force against people who never agreed to Apple's terms in the first place. The legal maneuvering is nothing more than high-powered bullying to try to force innocent third parties to give up their sources when they aren't under any legal obligation to do so. Copyfight is exactly right to frame this as an issue of corporate bullies attacking protected speech.

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