上周五的裁决法官James PKleinberg in Apple’s lawsuit against 25 unknown “Does” (as in “John Doe”) is both readable and cogentIt also augurs poorly for Think Secret, Apple Insider, and PowerPage.

If you’re interested in these proceedings, I highly recommend you read the ruling yourself我做了一个183 KB PDF version of the rulingavailable for download — it was produced from the Word document hosted by CNet, and so is much better than the PDFEFF主办, which was apparently scanned in from a fax.

But however interesting, the most important thing to note about this ruling is that it covers只是一个狭窄的问题— whether or not Apple can subpoena Nfox, the email provider of PowerPageFor all we know at this point, Nfox doesn’t evenarchived email or logs that would identify the source of the leaked information.

But while this ruling applies only to this narrow issue, the reasons why Apple won bode well for the company in the separate case of Apple v认为秘密。


P5, the legal definition of “trade secret”, from the California civil and penal code:

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

  1. Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
  2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Apple’s executives believe the company profits by keeping its product plans secret until the company is ready to announce them. Apple’s product secrecy is largely an attempt to maximize publicity在正确的时间— namely, the moment when the products are available for order.

The rumor sites argue, and will continue to argue, that they provide Apple with “free publicity”While true, such publicity is insignificant from Apple’s perspectiveThe type of publicity Apple seeks is, say, the cover of Time magazine — which they got for the announcement of the iMac G4 at Macworld Expo in January 2002If the iMac G4 had leaked through the rumor sites prior to its announcement, it’s almost certain Time would not have put it on the cover这是使它cover-worthy的排他性和惊喜。

Think Secret and the others are likely to argue that Apple’s unannounced product plans are not trade secrets, but I don’t think they’re going to win that argument.


These statutes reflect this state’s strong commitment to the protection of proprietary business information看到Integral Dev. CorpvWeissenbach(2002)99 Cal应用4th 576, Magnecomp Corp. v雅典娜有限公司(1989)209大卡应用3 d 526The statutes also support the compelling interest of disclosure which may, in the proper civil case, outweigh First Amendment rights如上所述下文, the United States and California Supreme Courts have underscored that trade secret laws apply to everyone regardless of their status, title or chosen professionThe California Legislature has not carved out any exception to these statutes for journalists, bloggers or anyone else.

For these reasons the Court has carefully reviewed the showing made by Apple to date先生的帖子O’Grady contained an exact copy of a detailed drawing of “Asteroid” created by AppleThe drawing was taken from a confidential set of slides clearly labeled “Apple Need-to-Know Confidential.” In addition, technical specifications were copied verbatim from the confidential slide set and posted on the online site这些帖子先生O’Grady were spread over three days, November 19, 22 and 23, 2004The Court is convinced by Apple’s presentation, including the materials produced在相机that this action has passed the thresholds necessary for discovery to proceed.

So, yes, there’s a First Amendment argument that these sites have the right to publish this information, and to keep their sources confidential — but these rights are outweighed by California’s trade secret statutes and established case law.

权利不是绝对的Recall Justice Oliver Wendell Holmes: “The right to swing my fist ends where the other man’s nose begins.” What the court is saying here, more or less, is that the right to publish information about Apple ends where their trade secrets begin.

This is the aspect of these cases that has the potential to truly matterThere is definitely a case to be made that trade secret statutes should超过第一修正案的权利Getting trade secret laws ruled unconstitutional would make for, needless to say, a landmark case.

UCLA Law School professor Eugene Volokh argues just this point — that the First Amendment protects third parties (i.ethose who have not signed confidentiality agreements, such as journalists) from trade secret liability — in his paper, “Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You”。

在p7, under the section “Journalists and Privilege”, the court writes:

Much of movants’ papers and argument is a recitation of the obvious: the terms and importance of the First Amendment and the value of free speech which this Court recognizes.

This is the judge’s way of saying that the movants are making a very broad argument, and pretty much have nothing.

页8-9, on journalists’ “privilege” to keep their sources confidential:

Similarly the claim of “privilege” is overstated in this context. Reporters and their sources do not have a license to violate criminal laws such as Penal Code §499c[…] Counsel for the moving parties admitted this during argument.

Movants声称他们是记者They make this claim because they seek the protection of the privilege against revealing their sources of informationDefining what is a “journalist” has become more complicated as the variety of media has expandedBut even if the movants are journalists, this is not the equivalent of a free pass记者的特权并不是绝对的For example, journalists cannot refuse to disclose information when it relates to a crime最高法院Branzburg声明:

The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection408年美国在691年。

P11, on the issue of whether the public interest would be served by allowing these sites the right to publish Apple’s trade secrets:

[…]先生O’Grady is far from alone: the public has had, and continues to have a profound interest in gossip about Apple. Therefore it is not surprising that hundreds of thousands of “hits” on a website about Apple have and will happen但是一个interested public不是一样的吗公共利益

At the hearing the Court specifically asked what public interest was served by publishing private, proprietary product information that was ostensibly stolen and turned over to those with no business reason for getting itMovants’ response was to again reiterate the self-evident interest of the public in Apple, rather than justifying why citizens have a right to know the private and secret information of a business entity, be it Apple, H-P, a law firm, a newspaper, Coca-Cola, a restaurant, or anyone elseUnlike the whistleblower who discloses a health, safety, or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, the movants are doing nothing more than feeding the public’s insatiable desire for information.

In other words, and contrary to the beliefs of some DF readers, there is no inherent “right” for the public to know what Apple, or any other private enterprise, is up to behind closed doorsJust because you have a desire to know doesn’t mean you have a right to know.


Indeed, a careful review of movants’ opening and reply papers and the hearing transcript reveals that movants never adequately dealt with the issue of the intersection of trade secrets and journalistic privilegeMovants’ opening brief does not mention the UTSA or Penal Code § 499cThe reply brief states, “This motion does not implicate the issue of whether Apple’s trade secret was protected speech; …” Movants’ Opening Brief, at 7: 4-5When skilled lawyers largely ignore an essential issue that the Court specifically inquires about, it sends a message they have little to say on the subjectAnd if, as movants argue, trade secrets are always at risk — a “sieve”, quotingKewanee石油v毫微米, (1974) 416 U.Sat 489-9010 — how does one explain the explicit statutory language of the UTSA and Penal Code?

In other words, the question the court was most interested in was how the movants justified their actions with regard to California’s civil and penal trade secret laws; but the movants’ opening brief didn’t even broach the subject.

The rumor sites, the EFF, and their attorneys apparently want to argue these cases solely in terms of the First AmendmentBut Apple sees this as a matter of trade secret law, and with this ruling, the court agrees with Apple.