If The New York Times Jumped Off a Bridge

Apple’s offensive against The dePlume Organization — a.k.a. Nick Ciarelli, publisher of Think Secret — is being waged solely in court. Not surprisingly, the company’s executives and attorneys are mum in public. Think Secret, however, is waging a publicity campaign to generate support and to spin the media coverage in its favor.

One aspect of this is the oft-repeated idea that Apple’s lawsuit against Think Secret is a mere bullying tactic — that they filed suit merely to intimidate Ciarelli so that he’d stop pubishing confidential material and/or cough up the names of his sources. The idea being that Apple didn’t really have a case, but that Ciarelli wouldn’t have the resources or inclination to fight.

I was guilty of this myself when I first wrote about the case back in January:

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.

My initial armchair legal analysis was way off-base, however. It’s true that Think Secret isn’t bound by non-disclosure agreements between Apple and its employees, but that’s not the grounds of Apple’s suit. Apple’s suit against Think Secret is based on trade secret law, and I think they have a very strong case indeed. I’ll write more about this later, but if you want a head start, you can peruse the California Civil Code’s Uniform Trade Secrets Act.

What’s taken hold in the mainstream coverage of the case to date, however, is the bullying angle — that Apple is picking on Think Secret because they’re small, and that they wouldn’t be doing this had the same secrets been published by a big-name, deep-pocketed publication. Those making this argument almost invariably invoke The New York Times to illustrate their point.

And in fact, Think Secret makes this argument themselves in a statement issued on their web site last week and in their court filings:

“Apple’s lawsuit is a affront to the First Amendment, and an attempt to use Apple’s economic power to intimidate small journalists,” Think Secret says in the court filings. “If a publication such as the New York Times had published such information, it would be called good journalism; Apple never would have considered a lawsuit.”

Most people seem to be taking this assertion at face value, but why? This is a bogus argument, on several levels.

First and foremost, not only didn’t The New York Times publish such information, they wouldn’t. The Times doesn’t print unsubstantiated or dubiously-sourced gossipy conjecture on unannounced or unreleased products. That’s why they’re The New York Times. It’s a non-sensical comparison.

For as much as Think Secret has gotten right (and the whole reason for the lawsuit is that they’ve accurately reported certain of Apple’s unannounced products), they still publish information that’s flat-out wrong. E.g. on 18 February 2005, Think Secret “senior editor” Ryan Katz wrote:

Highly reliable sources have confirmed that the next iPod mini will gain a full-color active-matrix TFT screen while the form factor will remain largely unchanged. The color screen will be able to display colors clearly and brightly regardless of ambient lighting, even outdoors in direct sunlight. The new screen will be about the same size as the current iPod mini display and will sport a 176 × 132 resolution.

Five days later, Apple released new iPod Minis with the same grayscale displays as the previous Minis. Rather than print a retraction or correction, however, Think Secret instead published a follow-up wherein Katz insisted the report of color-screen iPod Minis was correct, but that they simply aren’t shipping until later this year:

Some of the announcements — but not all — were in line with what Think Secret had previously reported. One of the pitfalls of insider information is that reality occasionally ends up contradicting what even reliable sources expect. Such was the case with the recent story Think Secret ran regarding the iPod mini revision delivering a color screen with it.

While Wednesday’s iPod announcement saw the introduction of 6GB iPod minis, as anticipated by Think Secret, the color screen was omitted from this revision. Sources say a color screen iPod mini with the specifications originally disclosed by Think Secret will still come to market in 2005, possibly in the fourth quarter when 8GB and 10GB 1-inch drives begin shipping (and find their way into an iPod update prior to the holiday season).

Most publications, including The New York Times, would consider a report that “contradicts with reality” to be, you know, an error, and thus in need of correction. At Think Secret, it’s good enough that “some” of what they published was “in line with” reality. Just because the article was titled “iPod Mini Moves to Color Screen With Pending Update” doesn’t mean they were wrong, apparently.

Or as the über-reliable MDJ offered in issue 2005.02.28:

It’s a nice gig to get leaked information, publish it, learn it’s completely wrong, and then defend both the information and the source while dodging responsibility for the hideous inaccuracies. It’s a minor miracle the site didn’t accuse Apple of removing the color screens at the last minute to trample Nick Ciarelli’s First Amendment rights — but who knows what the next court filings will bring?

Contrary to Think Secret’s statement-as-fact that Apple never would have even “considered” filing suit against The New York Times, I think in fact the opposite is true. If The New York Times, or any other deep-pocketed mainstream publication, had published the same information, obtained in the same way, Apple might have been more likely to file suit than they were against Think Secret. I no longer believe Apple’s suit is an intimidation tactic — I think their lawyers believe they have a winning case. If it had been The Times rather than Think Secret, they’d still have the same case, plus they’d avoid the negative publicity engendered by the David-v.-Goliath aspect. A lawsuit against The New York Times would be seen as Apple picking on someone its own size.

As stated previously, an analogy to The Times is moot, because The Times has never published such information. But when you hear someone claim that if they did, Apple wouldn’t sue them, don’t believe it.