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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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June 05, 2005

Apple + Intel: Where's the Lawsuit Against C|Net?

Posted by Ernest Miller

Late Friday afternoon, C|Net News published an extremely valuable trade secret about Apple and Intel, days before Apple was scheduled to announce it (Apple to Ditch IBM, Switch to Intel Chips). So, where's the friggin' lawsuit against C|Net to find out who leaked? Where is the judge who is going to claim that what C|Net published was "stolen property"?

Will someone please explain to me the difference between what C|Net has done and what happened in Apple v. Does?

Comments (41) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression


COMMENTS

1. Kirk D. on June 6, 2005 06:59 AM writes...

Why don't we actually WAIT until the rumor is either confirmed or denied before we go spouting claims against Apple? Show a little restraint.

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2. Ernest Miller on June 6, 2005 07:08 AM writes...

Kirk,

C|Net, the Wall Street Journal and New York Times have all provided independent reporting on this. If it isn't true, then it is a deliberate misinformation campaign designed to make the press (and those they spoke to) look like idiots. This is highly unlikely.

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3. Chris H on June 6, 2005 07:11 AM writes...

I think the difference is that C|Net might just be wrong. Remember, Apple was upset because the blogs posted very specific technical details, NOT rumours. The C|Net article is also vague. Will it be x86, PPC, or something else? The article is pretty low on technical detail and specs, which is a huge difference...

The other possibility is that Apple intentional leaked this rumour to build interest in WWDC (I didn't think it was going to be a big deal; now I will be watching)

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4. Lon Baker on June 6, 2005 07:21 AM writes...

A strategic alliance between Intel and Apple is hardly a trade secret. It does not threaten patents, speed to market for competitors, or anything like what the "trade secrets" published by rumor sites have.

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5. Chris W on June 6, 2005 07:23 AM writes...

I don't want to be repetitive, so I suggest you consider what Chris H. has posted. if C|Net came out and said Intel will began producing x86 chips for the new 4.2Ghz Powerbooks, I imagine Apple would be all over them (justified or not). It seems as though you are stretching for a relation that doesn't exist here.

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6. MSP on June 6, 2005 07:32 AM writes...

Ugh. So, there is the already mentioned fact that it may not be true, but my guess is that it is.

I think that you point that you are making is that Apple isn't suing CNET because they are a company and it would make doing so harder, and since they are only suing smaller folks, they are somehow wrong for doing so because they are not consistent.

This is argument has one major fallacy, Apple isn't wrong, Apple is being hypocritical. Being a hypocrite doesn't make you wrong, it makes you inconsistent.

This is a common logical fallacy made by those who really wish they had some kind of moral high ground but don't, and end up grasping at straws. Since you go to Yale, you may want to swing by a logic 101 class.

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7. Ernest Miller on June 6, 2005 07:45 AM writes...

Chris H, Chris W and Lon, the rumors are specific enough to have independent economic value due to their secrecy. How much would Apple's software suppliers pay to have C|Net's report? They certainly would want to know, and if it kept their competitors in the dark, so much the better. The threshold for trade secrets is pretty darn low. Just the knowledge that you'll have to rewrite code for a new architecture is pretty darn critical.

MSP, where do I say Apple is wrong? I am pointing out their apparent hypocrisy. What is wrong with that? Where is your logic?


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8. PXLated on June 6, 2005 07:47 AM writes...

Funny, every time one of you "journalists" bring this up, it seems as if all the comments are against you. At least every thread I've followed on the subject. When are you going to give it up?

Permalink to Comment

9. floyd on June 6, 2005 07:48 AM writes...

The biggest difference might be that the rumor sites were using Apple employees (and, apparently, internal Apple documentation) as sources. The employee signed an agreement to not say anything to the press about their work... the documents are marked CONFIDENTIAL.

One would hope that CNet and WSJ are using good old fashion journalism to build a story on facts extracted in a not so illegal fashion, corroborated those facts (also not illegally), and then published their story (still not illegal here).

Permalink to Comment

10. Kirk D. on June 6, 2005 08:01 AM writes...

Ernest, if this rumor does turn out to be true, do you think that the Wall St. Journal signed any kind of trade secret or non-disclosure agreement with Apple? No. Did they the individuals who leaked info to Think Secret sign an NDA? Yes. Hence the lawsuit. Again, let's wait and see what Steve has to say before you go accusing them of anything.

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11. no way on June 6, 2005 08:05 AM writes...

It may be true that Apple has legal rights to protect it's products, however, the lawsuits go quite a long way toward attempting to weaken journalists right to keep confidential sources private. Add the attack on fan sites as 'not journalists' and the case looks unethical. And it is plain that a large company is rougher to attack, all those who would deny this are naieve at best. Fan sites help companies like Apple. Let's remember Apple beore the iPod.

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12. tu11ym0n on June 6, 2005 08:06 AM writes...

MSP, i think you are the one in desperate need of a logic 101 class. seriously dude, WTF?

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13. Ernest Miller on June 6, 2005 08:09 AM writes...

Floyd, C|Net spoke to sources. Presumably these sources have some sort of agreement not to talk about the deal, otherwise, they would be on the record. In any case, there is no evidence that C|Net knows anything other than what they obtained from "sources".

Kirk D., Did the WSJ sign a non-disclosure? Of course not. Neither did Think Secret.

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14. heet_myser on June 6, 2005 08:13 AM writes...

Isn't it still entirely possible that this "Apple switching to Intel" rumor *could* mean that Intel will take over production of the PPC? In which case...where's the big story, really? To echo the first post, why not wait and see what happens today before giving this really, really dead horse another beating?

And why is it that people who seem to function reasonably well otherwise just can't seem to grasp the very clear legal issue at hand in Apple v. ThinkSecret?

Permalink to Comment

15. MSP on June 6, 2005 08:17 AM writes...

Tapdance around it how you will but, you have have an implied premiss that somehow there is something wrong here. You also don't outright call them hypocrits, that is implied as well. Sorry, I am guessing we are on the same side when it comes to these lawsuits, but this post is just lame and proves nothing.

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16. Ernest Miller on June 6, 2005 08:26 AM writes...

heet_myser, if Intel is taking over PPC production, that information would still have independent economic value due to its secrecy, only to a different cast of characters.

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17. popeye on June 6, 2005 08:28 AM writes...

Maybe the papers are being drawn up as we speculate this matter or maybe not. As mentioned prior, the mainstream press has flooded the world with this news and maybe Stevie J wants it that way, lest you forget that WWDC is opening today... I think all of you may be missing that point.

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18. Johan Taznar on June 6, 2005 08:41 AM writes...

I think you're missing a few points:

1) We don't know if these are actually trade secrets yet, do we?

2) We don't know it the sources had actually signed an NDA or not, do we? They could have been people who overheard or saw something they weren't "supposed" to.

3) Apple usually takes more than a day to actually file a lawsuit. You don't know that Apple isn't trying to track down the sources of this information to determine if a lawsuit is warrented or not.

And let me reiterate 1). We don't even know if this is true yet.

Given that, IMO its a little early to be implying that Apple only goes after the little guy who can't fight back.

I hope by now you see there are some big differences. They've been pointed out to you by several people.

Permalink to Comment

19. popeye on June 6, 2005 08:46 AM writes...

Johan,

Very good points indeed.

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20. Jim Gaynor on June 6, 2005 08:47 AM writes...

C|net posts article on Friday. After close of business. (Rather nice of them, I thought, to report after the market closed).

WSJ reported on Saturday.

And you're wondering why Apple has filed a lawsuit on Monday, with WWDC opening up and a Steve Jobs keynote scheduled for 10am?

Look back at the timeline for the previous incident - your zeal to try to show Apple as hypocritical is causing you to jump the gun.

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21. Mike K. on June 6, 2005 08:50 AM writes...

The other thing to consider:

When a blogger is sued, they often immediately run to their site and post an "OMG! I've been sued!" message. Same goes for when they receive a cease & desist letter.

Companies on the other hand don't normally do this.

You never know what's going on in the background.

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22. Ernest Miller on June 6, 2005 08:51 AM writes...

Geez, you guys can't handle a bit of satire, can you? Of course I didn't expect Apple to have literally filed a lawsuit by Sunday evening when I posted this. However, it does raise the point and, hopefully, sometime this evening reporters can begin asking questions about this issue.

Permalink to Comment

23. popeye on June 6, 2005 08:56 AM writes...

fairly oblique satire...

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24. Mike Sullivan on June 6, 2005 09:14 AM writes...

Jeeze -- C|Net's report only hit at 5:00 FRIDAY AFTERNOON -- it's only MONDAY MORNING, and I think the Apple folks are a little busy right now with the WWDC kicking off in an hour -- give them some TIME! If they do file suit, it could be weeks -- as it was after the MacWorld rumors were published!

Mike

Permalink to Comment

25. Smear on June 6, 2005 09:19 AM writes...

Kirk D., Did the WSJ sign a non-disclosure? Of course not. Neither did Think Secret.

Under most state law, including California (i.e. when dealing with Apple), you don't have to have signed an NDA to be liable for knowingly printing trade secret information. Apple v. Think Secret is cut and dry, with none of the anti-blogger nonsense you keep pumping out. (For a lawyer, you sure are ignorant of the law.)

In an hour we'll all know that this rumor was bull, and it'll be pretty clear why Apple isn't suing the WSJ.

BTW, calling it "satire" after the fact is really, really, tacky. Why not face up to the fact that you're wrong instead of pretending it was all a joke?

Permalink to Comment

26. tom on June 6, 2005 09:23 AM writes...

Apple didn't sue the little blogs until they made their announcement. Before the announcement they didn't want to act to confirm or deny the validity of the information that was released. This questioning is at least one day premature.

Permalink to Comment

27. Ernest Miller on June 6, 2005 09:29 AM writes...

Smear,

What an appropriate name. Calling it a satire after the fact? Sheesh. Do you think I really believed that Apple should have had a lawsuit ready to go by Sunday night? Geez.

Permalink to Comment

28. g. on June 6, 2005 09:41 AM writes...

I am waiting to see the case against La Repubblica. They released just their "Apple might possibly who knows announce today about the Apple & Intel thing" article - 30 minutes before keynote. I don't get it. No patience? (LR article here)

Permalink to Comment

29. Jim McCoy on June 6, 2005 09:43 AM writes...

In addition to the various points regarding whether or not this falls under trade secret laws, one other point needs to be remembered here:

Apple has the right, but not the obligation, to sue leakers.

Apple may in fact be the party doing the leaking. The leaks do not diminish what Steve has to say by stealing attention, in fact they have whipped up a media frenzy that is more valuable than the leaked information. This new is making front page stories and has been doing so for the past two days. When Steve gets up on stage to confirm the "rumors" and outline the new plan he will get another two or three days of articles out of the announcement. By leaking early the Apple PR machine can also gauge the points that the market (developers and users) are objecting to and have probably already prepared the list of bullet points to fax out to journalists and tech writers to spin the story the way they want.

This sort of leaking is the kind a company like Apple pays for, not sues over.

Permalink to Comment

30. Macslut on June 6, 2005 09:54 AM writes...

-SpellingNazi-
It's spelled "CNET", no pipe character, no lowercase letters.
-EndSpellingNazi-

Apple sued ThinkSecret to find out the source of the information. Apple claimed to have proof as to:
1) ThinkSecret could've only obtained their information from someone who had violated a signed NDA.
2) Apple suffered damages as a result of the leaked information being published.

Apple also claimed that ThinkSecret actively solicits individuals to break NDAs and divulge information to them.

Perhaps Apple is not suing CNET because they do not believe, or believe they can convince the court, that the above criteria was met in this case.

That being said, I'm sure there's something to the idea that it's better to first set an example by going after a little guy who's less able to defend himself.

In terms of "right versus wrong", what good is an NDA, and how do you protect sensitive information if people are free to sell information to anyone with a working knowledge of HTML or blogging and have them be "protected" under the guise of it being "news".

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31. Ladd on June 6, 2005 09:57 AM writes...

I think the Apple folks are a little busy right now with the WWDC kicking off in an hour -- give them some TIME! If they do file suit, it could be weeks -- as it was after the MacWorld rumors were published!

Actually, the Apple lawsuit was filed a little less than one week after.

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32. Karl on June 6, 2005 11:15 AM writes...

LOL now he says he was just being "satirical." Sounds like another creative communist has dropped out of the copyfight.

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33. JSP on June 6, 2005 11:19 AM writes...

Yeah! it's exactly the same! (sarcasm)
one was a new product launch & this is a processor transition/roadmap. and you know what apple considers to be trade secrets? and you know the source for all these articles confirming the transition (industry executives?)?
i mean seriously, this is pretty stupid.

Permalink to Comment

34. popeye on June 6, 2005 11:24 AM writes...

No lawsuit needed, it's all fact. Sorry all youse lawyers.

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35. Mark Wubben on June 6, 2005 11:26 AM writes...

And it just got announced that they are indeed moving to x86.

---

10:30 x86 migration challenges:
1) OS X must run on X86: OS X has secretly been running.
EVERY RELEASE OF MAC OS X HAS BEEN COMPILED FOR POWERPC AND INTEL This has been going on for the last 5 years. Rich says “greatest Apple conspiracy of all times is true!”.
Steve says: Mac OS X is cross-processor by design.
STEVE’S KEYNOTE IS DELIVERED ON AN X86 MACHINE: GET INFO!
STEVE is showing us all iApps running in OS X on x86, it’s all screaming and kicking @ass. H264, movie previews. mind boggling!!!

10:26 transitions: here we go. i sense the x86 thing.
1) 68030 –> PowerPC.
2) OS 9 –> OS X
TODAY is time for 3rd transition … we want best computers. … YES IT’S TRUE:

3) POWERPC –> INTEL PROCESSORS.
For developers NOW. For our users next year.
Why? because we want to be making the best computers.
Steve acknowledges not delivering on G5.

Intel’s future roadmaps gives us 7 times power per watt over powerpc arch.

By June ‘06, first macs with intel x86 will start shipping. By June ‘07, entire line of Macs will be x86! This is a 2-year transition!

---

from: http://www.theappleblog.com/2005/06/06/wwdc-live-update-right-here/

Permalink to Comment

36. Peter on June 6, 2005 11:30 AM writes...

Well, all the "let's wait and see if it's true" Apple a**kissers need to find another way to apologize for the iCon.

Your point is well taken, Ernest. The whole NDA thing is a tactic, you fools. It was merely a way for Apple to try to scare the bejeezus out of the little guys, since suing them on other grounds would run afoul of the First Amendment.

I love Apple computers (since the original 128K) and wouldn't use a Windows machine if it were given to me. But Apple's approach to what are merely typical leaks is deplorable.

Written using a G4 iBook running OS 10.4.1

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37. Russell on June 6, 2005 11:50 AM writes...

That's because CNET is apple's bitch. I wonder how much Apple has paid CNET at times because they seem to find 400 different ways to write about iPods. Its rediculous.

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38. Dennis on June 6, 2005 12:02 PM writes...

All this talk assumes that CNet's and WSJ's sources were under an NDA. In his keynote today, Steve had a slide that read, "It's true." It seems likely, with the shocking nature of this announcement, that Apple leaked the information to give its developers time to adjust to the idea.

Permalink to Comment

39. Jerry Kindall on June 6, 2005 02:26 PM writes...

Yeah, in hindsight, the suit against the Does was clearly to discourage them (and the leakers inside Apple) from leaking the Intel news. I would expect the rumor suits to quietly go away now that their purpose has been served.

Permalink to Comment

40. sasha pantleg on June 7, 2005 09:35 PM writes...

If you get pulled over for speeding, ask the cop why he doesn't stop the car that just wizzed by at 100 mph. You'll get your answer, and of course your ticket.

I am not a lawyer, and I stopped reading the comments about 1/3 way through.

Permalink to Comment

41. Trenton Lipscomb on June 8, 2005 11:13 AM writes...

People sure a quick to want to see a lawsuit.

Apple only filed that lawsuit after Think Secret refused to cooperate. Think Secret was actively requesting apple employees send them secrets and other confidential bits of information.

I'm sure CNET will cooperate as far as their journalistic standards will allow, and I highly doubt Stephen Shankland actively solicited information from employees.

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