Of Apple, Think Secret and Non-Disclosure Agreements

Along with many other people, I’m on the Apple Developer Center Seed list, which means that I get to see preview and pre-release editions of future OS updates (e.g., Mac OS X 10.4, aka Tiger). But things on the list are different now that Apple has come out and sued Think Secret over pre-release leaks (learn more at MacSlash or Daring Fireball). Instead of the cheery one line “don’t forget that this is confidential stuff” on the ADC Seed Update newsletter, there’s now a new disclaimer in town…

In its all-cap glory:

THE PRE-RELEASE SOFTWARE IDENTIFIED BELOW IS APPLE CONFIDENTIAL
INFORMATION. YOUR UNAUTHORIZED DISTRIBUTION OF THE PRE-RELEASE
SOFTWARE OR DISCLOSURE OF INFORMATION RELATING TO THE PRE-RELEASE
SOFTWARE (INCLUDING THE POSTING OF SCREEN SHOTS) MAY SUBJECT YOU
TO BOTH CIVIL AND CRIMINAL LIABILITY AND RESULT IN IMMEDIATE
TERMINATION OF YOUR ADC MEMBERSHIP.

I think Apple’s absolutely right in its stance and that while it’s fun to guess and read about industry rumors, companies need to keep their plans and strategic direction confidential because company growth is built on differentiation and it’s darn presumptuous of others outside of the firm to think they have a better sense of product marketing and announcement timing. Or just want to make a buck off violating non-disclosures…

Some people just don’t get it. Ian Betteridge, for example, says that Think Secret’s done Apple a favor by helping garner publicity during the week of the Consumer Electronics Show. Sorry, but it’s Apple’s decision when to publicize its new products.

My colleague Dan Gilmore misses the mark here too, when he says that if whomever leaked the news had done so to a large media conglomerate like The New York Times, “Apple wouldn’t be suing them”. As a journalist, Dan, you should know better: real publications don’t publish rumors. They substantiate them and they also call the company in question for a response too, so to compare the personal website Think Secret to the bastion of journalistic integrity The New York Times (on a good day, at least) still doesn’t explain away the fact that Nick DePlume at Think Secret was wrong to publish the rumors.

A few more quick hits: John Handelaar on his Weblog says that this lawsuit “is exactly and precisely a case of Apple putting the screws to the little guy”, conveniently forgetting that Think Secret was wrong in publishing these rumors knowing that they were violating Apple trade secrets. It’s not about big or little, it’s about corporate ethics and confidentiality. Canadian Paul Denton meanwhile says that Apple’s being “remarkably heavy-handed”, without adding that perhaps DePlume was being a bit too light-headed when he published this material. Is the big guy always wrong in the blogosphere?? Denton says that people like to “engage in baseless wish-fulfillment rumourmongering” and he’s right. But that’s not what this case is about, is it?

Over at the Forbes Web site, Lisa DiCarlo is saying that Apple’s “biting the hand that feeds it” with the lawsuit. Her claim is that sources leak details of forthcoming products in the tech industry all the time, and that the community gives Apple untold free — and mostly positive –publicity and buzz about upcoming products and strategies. But you’re sidestepping the point of the lawsuit: It’s Apple’s corporate strategy, it’s Apple’s product announcement and it’s Apple’s corporate privacy that’s been violated by Think Secret willfully publishing known NDA information. The rationalization that “it’s done all the time” is the weakest excuse I can imagine for Apple letting this slide. I mean, people cheat on their taxes all the time too, Ms. DiCarlo, so are you saying that when someone’s caught they shouldn’t get in trouble?

So I say to the rumor sites: “keep it clean, folks” and make sure that you only talk about rumors that are “in the public eye” or are things you’d like to see happen, products you’d like to see Apple sell, not the results of dumpster diving, violating non-disclosure agreements, or disgruntled employees sending you “the scoop”.

17 comments on “Of Apple, Think Secret and Non-Disclosure Agreements

  1. Of Apple, Think Secret and Non-Disclosure Agreements

    Along with many other people, I’m on the Apple Developer Center Seed list, which means that I get to see preview and pre-release editions of future OS updates (e.g., Mac OS X 10.4, aka Tiger). But things on the list are different now that Apple has com…

  2. I don’t have time to fully engage on this topic, so pardon the hit and run comment, but I think you’ve overlooked one major point in your otherwise quite well written article.
    The point is that, just like the NY Times, or the Lindsborg News-Record for that matter, Think Secret is free to publish (most) any info they obtain by legitimate means. So, if one of the authors/editors did not violate the confidentiality agreement, then the beef isn’t with TS, but rather with the individual(s) who shared inappropriately.

  3. I don’t agree with you, Mike. Freedom of the press doesn’t mean that the press isn’t culpable for what it publishes if it doesn’t check the facts and ensure that the story is true. I guarantee that if you call the San Jose Mercury News and say “hey! I have it on good authority that Intel’s declaring bankruptcy after the close of trading today” they’re not going to just run with the story, and if they did, they’d be in pretty hot water.
    I believe that it’s the responsibility of any publisher to ensure that the information they publish is accurate, not in violation of any secrecy or privacy laws, and legitimate. I can’t see how Think Secret *isn’t* responsible for the information on its site, actually.

  4. I don’t think that’s true, Mike, though I don’t know a lot about the Pentagon Papers. Here’s why I think it’s different: materials produced by the government or under the aegis of government funding have a different copyright and different protections. Plus, aren’t we talking about the Freedom of Information Act anyway, which doesn’t apply to private or publicly traded companies anyway?

  5. The FOIA did not exists at the time of the publication of the Pentagon Papers. Under your rules they would not have seen the light of day.
    I believe that Apple’s suit, if resited will be found to be baseless, the publisher does have a first amendment right to publish the material. The Publisher is not bound by the NDA, which it never signed, so Apple has no contractual basis on which to sue the publisher.
    However by picking a little guy, instead of say, Ziff-Davis Publishing, they are pulling the same stunt Lotus did when they sued VP Software over the “Lotus Clone” interface, pickng a small target that cannot defend itself to get a precedent.
    Apple’s lawusit is nothing more than a SLAPP suit, and should be treated like that. (A Strategic Lawsuite Agains Public Participation). Yes Apple has a right to control how and to whom it disseminates information about it’s products. It does NOT have a right to control how third parties without a contractual relationship with Apple do with the infrmation they get about Apple. Apple’s remedy for violations of the NDA are spelled out in that pargraph you quoted, removal of the offender from the NDA, and suing the person who violated the NDA, someone who has not signed the NDA cannot be bound to it. The NDA is a contract between two parties.
    I rather doubt Apple would be suing were the remarks favorable, but when the remarks are unfavourable, coporations are quick to clog up the court system with well finanaced spurious suits to shut up critics.
    Tell me, if I get information about corporate wrong doing from a whistle blower, about and Enron type scandal, do I have to confirm that with thier PR office before publishing too? After all it’s thier coprorate image, and thier right to control it, right? Corporate image and goodwill is in fact the majr value of most companies, far exceeding thier capital assets.
    Allowing the corporatins to squelch public discussion of material that inconveniences, embarases or is otherwise critical a corporation is not in the public’s best interest. I truly hope that Think Secret was sued in a state that has a SLAPP back law and that Apple gets burned on this.
    Greg

  6. De la rumeur et des (pauvres) pommes

    De la rumeur contre le secret industriel, de la liberté d’expression du petit pot de terre contre les intérêts du gros pot de fer capitaliste, que sais-je encore, la blogosphère n’a pas manqué encore de faire jouer sa caisse de…

  7. Thanks for your note, Greg, but you’re shifting the discussion in a way that makes it hard for us to talk about this specific lawsuit. Whistle-blowing has NOTHING to do with Think Secret and Apple Computer. There’s no malfeasance on the part of Apple like there ostensibly was with the Pentagon Papers situation. It’s not a lawsuit against “public participation” because it’s an Apple trade secret that’s been violated and the only party that’s hurt by that is Apple. There is no “public” in this situation.
    If they were secretly reverse engineering Windows XP (God help us! 🙂 ) and someone from inside Apple violated employee confidentiality to reveal this, showing that there was malice aforethought, that’d be different, but your position appears to be “information wants to be free” even if it’s proprietary, confidential information.
    In terms of why Apple’s suing Think Secret instead of a larger entity, I think that’s easy to identify: a site like Think Secret HAS no purpose other than rumor-mongering and trying to scoop the industry. Unto itself that’s not a bad thing – though I don’t personally read any of the rumor sites – but when what’s obviously a trade secret that is protected under NDA is offered to them, they (Think Secret) should be smarter than to just blithely publish it and say “hey, we didn’t have the NDA, it’s not our violation”.
    Finally, look at what you’ve said here. Think Secret violating an Apple trade secret has NOTHING to do with “squelching public discussion of material that inconveniences, embarrasses or is otherwise critical of a corporation”. We’re talking about Apple’s plans to release of a new computer, nothing more, nothing less.

  8. And speaking of visits to the twilight zone, now Steve Safran on his Weblog is saying that all weblog authors should boycott Apple because of its desire to enforce its intellectual property laws. Read about it here: http://www.lostremote.com/archives/003460.html
    I gotta say that this is completely wrong-headed thinking in my view, because this isn’t about Think Secret or any other site having the “freedom of the First Amendment” (and what an oft-cited and misunderstood part of the Constitution it is!) it’s about being culpable for information crimes, for being able to say that something is not for the public eye and having it stay private.
    Come on, Steve, “they got the information the old fashioned way, they used sources”? Can you say violation of confidentiality? First off, I don’t believe that I have the same protection under the law that Woodward and Bernstein do at the Washington Post, but that’s not even the point. The point is that if you come to me with information that I know is secret or confidential and there’s no compelling moral or ethical reason for me to take the risk of publishing it, I’m going to throw it in the trashcan.
    It’s not about a bunch of whiny bloggers stomping their feet saying “first amendment! first amendment!” it’s about accepting the responsibility and expectations of journalistic integrity and professionalism that come with independent writers utilizing a new publishing venue for their own gain.

  9. Well, I DO believe you have the same protection as Woodward, Bernstein, and the rest of us. Sources sworn to secrecy leak the information all the time. (See: White House.) It’s not a reporter’s job to say “Hey – show me the paperwork that says it’s OK for you to tell me that.” Lost Remote is all about ethics and integrity. And the fact that blogging is a “new publishing venue” lessens not one bit its value as a news form.
    Good news organizations don’t print rumors. But the printing of a rumor is not itself a crime. “Freedom of Speech” is not limited to information varified by three sources.
    Car mags are full of “spy pictures” of not-yet-released cars being taken out for a spin. Would you ban that practice?
    “A compelling moral or ethical reason to take the risk of publishing?” How about journalism?

  10. How Think Secret ruined Apple’s surprise party

    A few days ago, I shared my thoughts about Apple, Think Secret and Non-Disclosure Agreements, in which I basically said that rumor sites were cool, but rumor sites that were using known confidential information or news that was obviously shared with t…

  11. I understand that an Apple fanboy or a zealot may want to protect Apple corporation, but people’s interest is far more important than Apple’s interests. Not only you are wrong about NY Times publishing rumours, they can, but you are also wrong what does freedom of speech means. Apple can go after people like you, who happen to be binded by those rules, but not people who report news to us.
    I think this is one of the important reasons why Apple is so doomed, because gradually it had diminished its value to nothing more than a small company surrounded by zealots and fanboys who even attack freedom of speech.

  12. Jing, thanks for stopping by and sharing your thoughts. I don’t think that your belittling “fanboy or zealot” helps the discourse, but I understand your point. No, for me, this isn’t about Apple at all, it’s about confidentiality and professional ethics. If some unknown company had an employee or contractor leaking secrets to me, I wouldn’t post them publicly, even if I didn’t like the company. Again, it has nothing to do with the fact that I’m a fan of Apple’s product line, and I really don’t see how free speech comes into play here either, honestly.
    Is Apple doomed? Does it matter when we’re talking about corporate confidentiality and the consequences of abetting in the violation of that confidentiality?

  13. So, if I happen to publish my musings about a possible Apple product (note I’m not using the word rumor) and they just HAPPEN to be right, does that give Apple the right to sue me?
    Will guessing right become a crime?
    I’ve read a lot about this and the issue will come down to PROOF that the blogger in question ‘actively solicited’ the employees to break their NDAs. If that can be shown, the law is on Apple’s side. However, proof is subject to reasonable doubt… ah… tis a slippery slope indeed.
    I think the jury selection will be fascinating, who wants to bet that the Apple lawyers will go for non-tech-literates while the defense does the opposite?
    A precedent will be set here – and not necessarily a good one.
    Cheers!

  14. Douglas, you raise an interesting point, of course, because there’s no “black and white” in this situation. If you have something on your site saying “hey! tell me all your secrets” and then you get messages from people inside Apple saying “next week we’re going to …” then I think you’re on the wrong side of the fence if you publish that information. If you just take a shot in the dark and say “hmmm…. We’re going to have a paper-think iMac you can hang on the wall, completely wireless, AND we’re going to have a … micro iPod with no display for under $100”, then that’s a different situation.

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