Real Kato Blog: Apple Watch: Apple Lawsuits and the Mac Web

There's been a lot of chatter on the Mac Web, about Apple's lawsuit to find out who's responsible for leaking confidential product information. I made the mistake of leaving my web address on some comments, so now I'd better go ahead and write my amicus curiae brief too.

For those of you not following the story, here's some background.

There are a number of web sites that are dedicated towards rumor and speculation about upcoming Apple products. Among these are sites with not-so-subtle names like Think Secret, Mac OS Rumors, and Apple Insider. Recently, Apple has filed a couple of lawsuits. One was against Think Secret for revealing the details of the Mac Mini and the iWork suite in advance of the products' release. The other was against Think Secret, Apple Insider, and O'Grady's PowerPage for leaking information about a yet-to-be-released music interface product, code-named "Asteroid".

Some people are pretty upset at Apple for these lawsuits.

Think Secret turns out to be a web site run by a 19-year-old college kid, Nicholas Ciarelli. I think the fact that he's just one guy, and the fact that he's just a kid, has made people more sympathetic. Sheesh, just imagine if he were a girl too. (Say, there's an idea... if I start up my own Mac rumor site, I'll make sure I get a cute fifteen-year-old girl to front it for me.)

There are essentially three kinds of people who are getting upset: Apple fans who are addicted to getting the latest dish about upcoming products, free-speech and free-press advocates, and the blogging community (who sees Ciarelli as one of their own). Now, I happen to fall into all three of those categories, but my opinion is that Apple is legally and ethically in the right here. Now, I Am Not A Lawyer, so I'm on shaky ground here... but I know of at least three lawyers who read my site, so I'd love for them to comment. (Hint hint. Note that the lawyer-speak in my article abstract was specifically designed to attract their attention.)

The crux of Apple's argument is that Think Secret actively solicited confidential information, in direct violation of California's Uniform Trade Secrets Act. The site makes no bones about that, as evidenced by their prominent advertisement:

Apple then alleges publishing these secrets caused "irreparable harm". That argument is a little shakier, but it's reasonable to say that Apple depends on innovation to maintain a competitive advantage, and that leaking information about unannounced products might harm Apple by tipping off its competitors. And, I think it's reasonable to say that sales of an existing product might suffer if it were known that the introduction of a new product was imminent.

So now let's get to the hubbub.

Some Apple fans are pretty peeved at what they perceive as corporate bullying. This includes Apple co-founder Steve Wozniak, who donated a thousand dollars to Ciarelli's defense. People are calling Apple "stupid" for turning on "their biggest fans". I take issue with that a little... I mean, if you are personally profiting (via advertising dollars) from something that causes damage to Apple's business, then are you really a friend of Apple? I mean, with friends like that...

I'll have to say, I enjoy reading the rumors and getting the dish. I even go so far as to spread the rumors by commenting about them on this site. But by the time I get my information, it's no longer secret. If I thought I were the only one who knew about some new product, and that I had obtained the information illegally, I don't think I would tempt law, fate, and karma by spreading that information.

Moreover, if I were Apple, I'd really want to find out who was the source of the leaks, and a lawsuit is pretty much their only recourse here. Is it "bullying"? What other options are available? Bribery? And it's not like the lawsuit should have been a surprise to Ciarelli; Apple's lawyers have been sending him cease-and-desist notices for quite a while.

The second group of people who are upset are the free-speech and free-press advocates. Look, anyone who knows me will tell you that I am a staunch defender of the First Amendment. But the First Amendment doesn't guarantee people the right to say and write anything they want. As Apple notes in its lawsuit: "By this action, Apple does not seek to discourage communication protected by the free-speech guarantees of the United States and California constitutions. These constitutionally protected freedoms, however, do not extend to defendants' unlawful practice of misappropriating and disseminating trade secrets acquired through the deliberate violation of known duties of confidentiality."

In other words, the rights guaranteed by the First Amendment end when they begin to trample on the rights of others. Libel and slander are illegal. Courts issue gag orders in certain cases. And more importantly, courts have, in the past, issued subpoenas for journalists to reveal their sources, when it is in the public interest. Remember the famous case of the leaked identity of the CIA agent? The First Amendment is not supposed to be a shield for illegal activity. If it were so broadly applied, then any law regarding trade secrets, copyrighted materials, and national security would be unconstitutional as well. Hey, you want to reprint the entire text of someone else's novel on your web site? Is that "freedom of press"? You want to tell Iran how to make a nuclear bomb? Is that "freedom of speech"?.

The third group of people to get upset are bloggers. The argument seems to be that bloggers are not getting the same protection as other journalists, and there's a double-standard at work. Some people have even started to speculate about a Vast Conspiracy by the mainstream media to quash the upstart blogging community.

Bah. Apple would just as soon sue USA Today if they ran a similar article, so I don't see where there's a double standard. Of course, the USA Today wouldn't quite be so cavalier about flouting the law. A responsible journalist would be much more careful about the kinds of things he writes. Do we bloggers really want to be held up to the same standards? Most of us bloggers are admittedly gonzo, and we make no secret of the fact that we are unreliable news sources. Personally, I like it that way. I don't want to be thought of as a "journalist". There's an excellent article that talks about that here.

And anyway: Think Secret is hardly what I would call a "blog". There isn't nearly enough talk about pooping for it to qualify as a blog.

So that's just my opinion. I may be wrong, and that's okay because this isn't really an amicus curiae brief and I don't have to be 100% correct. I'm not hurting anyone. That's what blogging is about, people.

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