January 10, 2005 8:13 AM PST

Apple suit tests First Amendment

Apple Computer's lawsuit against a Web site that published details of forthcoming Mac products raises troubling First Amendment questions, media experts say.

In its court action last week, Apple sued not only the unnamed individuals who revealed Apple's inside information, but also those at Mac enthusiast site Think Secret who helped publish it.

"To me, it is very disturbing that Apple, or anybody frankly, would try to invoke trade secrets to go after a media publication or, for that matter, even a blog," said Paul Grabowicz, director of the New Media Program at the University of California at Berkeley's Graduate School of Journalism. "If they think somebody inside is leaking information, then they should be going after them directly."

However, some legal experts say the Mac maker may well have a case.

"I think there is potential liability," said Daniel Westman, a partner at law firm Shaw Pittman. "The trade secret statutes are very, very broadly written with the idea in mind that people who are maliciously intended could try to hide their action through intermediaries."

Apple and Think Secret representatives declined to comment for this article.

For Grabowicz, Apple's suit is part of a disturbing trend in which businesses and government are suing media outlets to uncover leaks. Even before this latest suit, Apple had already gotten a court to issue subpoenas to Think Secret and two other enthusiast sites seeking to force them to turn over information about their sources for reports on upcoming Apple products.

"The ones who are going to lose are the public," Grabowicz said. "They are either going to not have the information or the information they have is going to be orchestrated by the government and corporations."

Grabowicz said he wonders what the limits are in terms of what might be construed as a trade secret. "If a reporter does a story on a defective product based on leaked information, can they be sued?"

Westman said some deference is given to whistle-blowers who reveal inside information to expose wrongdoing or a public safety threat. However, he said it seems unlikely that the information Think Secret posted would get similar protection.

"It will be interesting to see this case and see if the First Amendment does provide protection, but I doubt it," Westman said from his office in McLean, Va.

Ultimately, Westman sees the case as a collision of two government aims--promoting innovation and protecting free speech. "You are talking about a clash between property rights and free-speech rights," he said. "There are limits to both."

In its case, Apple tries to characterize the action as one related to

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8 comments

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freedom of speech?
*** does this have to do with freedom of speech. freedom of speech to me has nothing to do with divulging company secrets
Posted by volterwd (466 comments )
Reply Link Flag
If all Corps nice to Apple Computer, Trade secret...
If all Corps are being nice to Apple Computer, Trade secret won't
be issued at the Apple Computer. Apple Computer surely will
share all of its trade secrets with corporations and developers.
Unfortunately, as matter of fact, they ALWAYS try to sell new
innovations from Apple. If they successfully steal Apple's
secrets, Apple's product would not be in the market anywhere. I
support Apple's decision to protect its trade secret against
corporations and developers.

Cool?
Posted by Thatsmel (1 comment )
Reply Link Flag
My Bet: Apple drops the suit
My bet is that this lawsuit is just a diversion to drive up speculation about this 'headless' PC. Apple is going to drop the suit after Steve Jobs makes his announcements. None of which will have anything to do with this non-existent 'headless' PC.
Posted by frankz00 (196 comments )
Reply Link Flag
Give me a break!
What would you think of the guy who comes out of the early
showing of "Psycho" and announces to those standing in line to
see the late showing, "Hey, everybody, Janet Leigh gets killed in
the shower and Norman Bates is his own Mom. Enjoy!"

Freedom of speech? Maybe, but it's the ******* thing to do.

What ThinkSecret divulged is what everyone is waiting for
tomorrow to hear. If Apple were using slaves in third-world
countries to assemble Macs or were misappropriating corporate
funds to crack ******, that's important for us to know and even
if it meant violating some secrecy rules. Blabbing Apple's
intentions a few days early is not at all equivalent. It's just the
******* thing to do.
Posted by macFanDave_09 (8 comments )
Reply Link Flag
always err on the side of free-speech rights
That should be the goal of any court. Too bad our system is so FUBARed at this point that nothing short of the Supreme Court would actually see it that way. Justice may be blind but it also is incredibly stupid.
Posted by Jonathan (832 comments )
Reply Link Flag
PR or self-defense?
The timing of the leaking of this story, in combination with musicians' claims that this particular product is nothing revolutionary, leads me to believe that the leak was intentional, to create more "buzz" just one week before the public release of the product. Jobs is a master at creating buzz.

However, if the leak really wasn't secretly authorized, Apple truly does have a serious problem. Because I do believe they ARE wizards of marketing, they must know that the negative publicity of suing the messengers, rather than attacking the leaks at their source, wouldn't be good for Apple. So I too believe that Apple will drop the suit.

What I'd be interested in seeing is whether they send another, and more effective, message to their employees by mass-firing the ones they suspect. Here, too, they may have lawsuits on their hands (firing without proof); but it would send shockwaves throughout the company as a warning that Apple takes its proprietary information seriously. The cost of those lawsuits would probably be far less than the cost of suing the bloggers; and it would probably end the leaks once and for all.
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