Plugging Leaks

Wednesday, 5 January 2005

As reported today by Ina Fried at CNet, Apple is suing Think Secret, specifically citing their articles on the headless iMac and the iWork office suite. It’s interesting that they’d file suit now, all but confirming that at least some aspects of both stories are true. Why not wait to file suit next week, after the Macworld Expo Keynote?

One explanation that occurs to me is that while these rumors may well be true, perhaps one — or both — is not yet ready to be announced next week. In which case Apple was going to file suit against Think Secret prior to unveiling the actual products anyway, and thus saw no need to wait until after the Expo.

I don’t quite believe this, however. Think Secret’s “$499 headless iMac” rumor has created such an enormous stir — it even made its way onto CNN.com — that Apple is surely aware that by filing this suit now, pre-Expo, it is going to add fuel to the fire.

Even more curious is the question of what legal standing Apple has to bring a suit against Think Secret. Apple’s legal department’s usual move against rumor sites is to send cease-and-desist letters. E.g. when a rumor site publishes screenshots of unreleased Apple software, Apple’s lawyers send a friendly cease-and-desist letter: take down these images, and we’ll call it even.

These cease-and-desist letters are such a regular occurrence that they’ve turned into an unofficial gauge of accuracy — if a rumor is posted with screenshots of unreleased Apple software, and the site does not receive a letter from Apple Legal, then the images are widely regarded as fakes; conversely, a cease-and-desist (“Screenshots removed at the request of Apple Legal”) is regarded as confirmation that the images were legitimate.

This, however, is not a friendly cease-and-desist. No remove the stories and all is forgiven easy out this time. According to Fried’s report:

Apple seeks an injunction stopping further disclosure of trade secrets as well as unspecified damages from dePlume and those who aided in the publishing. It also seeks damages from the unnamed individuals who breached Apple’s confidentiality agreement.

The point being, Apple is not merely asking Think Secret to remove screenshots, or even the stories themselves, from its web site. Apple is taking Think Secret to court.

(More specifically, Fried reports that “The suit is filed against site owner The dePlume Organization, as well as its owner who uses the pseudonym Nick dePlume, whose real identity Apple has not determined.” Which I find slightly curious, in that I thought it was widely known in Mac insider circles that dePlume is Nick Ciarelli, whose identity as Nick dePlume was hinted at by byline changes at eWeek. While working at eWeek, “Nick dePlume” shared several eWeek bylines with Matthew Rothenberg on Mac rumor-related stories; starting in 2003, similar stories were bylined “Nick Ciarelli and Matthew Rothenberg”.)

But on what grounds can Apple sue? The idea with screenshots is that the images are Apple’s property, and they can’t be published without Apple’s permission. But in the reports cited by Apple, Think Secret hasn’t even published any screenshots. All that they’ve published is information about Apple products — none of which Apple can claim as its property in the same way that it can with screenshots or photographs.

Whoever leaked these rumors to Think Secret certainly broke a non-disclosure agreement with Apple, but Think Secret isn’t bound by legal arrangements between Apple and its employees and contractors. If you break an NDA to supply me with information, I’m not bound by the terms of the agreement you signed.

Recall July 2000, when Ric Ford at MacInTouch published rumors regarding upcoming Apple products set to be announced at that summer’s Macworld Expo in New York. Apple Legal sent Ford a cease-and-desist, demanding he remove the information from MacInTouch. Ford complied, but he published Apple Legal’s nastygram (despite the letter’s unenforceable claim of being “NOT FOR POSTING OR REDISTRIBUTION”), along with a cogent response from his own attorney, Sydelle Pittas. Pittas makes clear that Apple had no case against Ford, and that Ford complied with their request solely because he didn’t want to incur the legal cost of fighting it:

Regarding your stated concerns: First, it appears that the information published by MacInTouch has been available to and published by others. For that reason among others, we disagree that the four items to which you refer are “trade secrets.” Second, if, as you claim, a confidentiality agreement was breached in the dissemination of the information Apple finds objectionable, it certainly was not an agreement as to which my client was a party.

Third, my client owes Apple no duty to refrain from publishing information which Apple objects to, whether “in good faith” or not. Nor does my client owe Apple a duty to refrain from posting notices received from Apple’s legal department, regardless of the statement added to your e-mail directing that it not be posted or reproduced. Contrary to the positions you have taken regarding each of the previous points, my client’s Freedom of Speech rights protect its good faith publication of newsworthy information about Apple, including the fact that Apple’s legal department has objected to that information.

Fourth, you have no right to state your concerns to third parties with whom my client does business. Your having sent a copy of your message to my client’s internet service provider can have only one purpose, and that is to interfere with the advantageous business relationship between my client and its i.s.p. It was a willful and knowing attempt to harm my client, whose livelihood depends on the hosting of its web site by its i.s.p. Kindly inform the i.s.p. that you have withdrawn your concerns, and then cease and desist from any further such communications.

Despite the foregoing four points, my client has decided — this time — to remove the four items Apple has found objectionable from its web site. Why? For one reason and one reason only: to avoid further costs of legal representation. Accordingly, this matter is now terminated. Apple should think again, however, before engaging in a similar course of action in the event it “objects” to a future internet posting. Even a little guy eventually might decide there is no choice but to take up a slingshot.

What Apple Wants

This suit is not about stemming the rampant speculation regarding these specific rumors in the remaining days before the Expo. Cat’s out of the bag, the train has left the station, don’t cry over spilled milk, etc.

Apple wants two things here. First, they want the identities of Think Secret’s sources. In a nut, I think Apple’s legal strategy here is as follows:

  • The information published by Think Secret constitutes trade secrets, and such information was known only to individuals who are legally obligated not to reveal it to others.

  • Apple is accusing Think Secret of having broken the law in order to obtain information regarding these secrets.

The easiest way for Think Secret to defend itself would be to respond that it didn’t break the law, it was their sources who broke the law. This has the advantage of being true (other than in the unlikely scenario that Think Secret staff members somehow obtained this information directly from Apple, while under NDA). The disadvantage, however, is that while they would likely win, fighting Apple in court could prove incredibly costly.

So dePlume is left with two choices: fight in court, or cough up the names of the sources. It’s possible Apple would continue to pursue legal action against Think Secret even if dePlume revealed the sources, but I think that’s unlikely. Once given the names, Apple will surely terminate the leakers’ employment (if they’re Apple employees or contractors), and/or pursue further legal action against them. But Apple can’t take action against the leakers until they know who they are, and the only way they can identify them is through Think Secret. Hence, the suit against Think Secret.

Which leads to the second thing Apple wants: to discourage future leaks. They’ll do this by pursuing legal recourse against the leakers in public view, making it clear that loose lips sink careers.

Shutting down individual rumor sites won’t do Apple any good; dozens of new ones would replace them. But by making harsh examples out of whoever leaked these rumors, Apple stands a good chance of discouraging other would-be leakers from unsealing their lips in the future.

And if Think Secret coughs up their sources without a fight, you can be sure that such cowardly disregard for confidentiality will be widely publicized. I’ve never understood what motivates someone to risk their job to supply rumor sites with upcoming product info, but you’d have to be an outright moron to do so if you knew that Think Secret will reveal your name to Apple upon request of their attorneys.

Apple doesn’t need to shut Think Secret down; they just need to make it known that Think Secret is unwilling to protect sources’ confidentiality.

You may disagree with Apple’s vigorous pursuit of leakers, but this is not a case of big bad Apple putting the screws to a little guy. Fried’s report at CNet makes it clear that Apple Legal has warned Think Secret (and, one presumes, other rumor mongers) repeatedly in the past few years:

In this week’s suit, Apple notes the lengths it has gone to in trying to stop the leaks through Think Secret. The suit notes a number of letters that its lawyers have sent in recent years to Think Secret warning that the site’s postings contain confidential trade secrets. In the letters, Apple demanded that the site remove all information on the products and that it provide “all information regarding the person or persons who supplied the trade secrets.” Apple said the site’s owners have ignored its demands.

If Think Secret wasn’t prepared for this, it’s because they’re foolish, not because they weren’t fairly warned.