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Think Secret & Apple Settle Suit; Think Secret to Cease Publishing
by , 1:40 AM EST, December 20th, 2007
Think Secret announced early on Thursday that the site had settled a long-standing lawsuit with Apple, Inc. The settlement announced by Think Secret contains two publicly revealed elements: The first is that the site will cease publishing, and the second is that the site did not reveal its sources for the story over which Apple was suing. Other terms of the settlement have not been revealed.
Apple sued Think Secret for misappropriating trade secrets for a story posted on December 28, 2004 pre-announcing what was to be called the Mac mini. The article has been removed from Think Secret's site, but is still available via the Wayback machine at Archive.org. While the suit dropped out of the limelight after a year or so of legal maneuverings and lots of very bad publicity for Apple, it was an ongoing case until this announcement.
After a brief stint at a different domain, Think Secret was officially launched on May 3, 1999 by Nick dePlume (a.k.a. Nick Ciarelli) at the tender young age of 13. When he was sued, he was still a teenager, aged 19, attending Harvard, a fact that added to Apple's image of being a bully for pursuing the case. Until that time, few realized that the one of the most highly regarded "Mac rumor sites" on the Internet was published by such a young person.
As a site that often published information about unannounced Apple products, Think Secret was not highly regarded by the executives of Apple, even though those advanced stories often helped to build excitement about Apple's Macworld keynotes from Steve Jobs.
This excitement came from both the Mac community and the mainstream press, and the latter began to increasingly cite and source Think Secret -- as well as AppleInsider and other rumor sites -- in their own coverage of Apple, particularly after the lawsuit from Apple raised Think Secret's profile.
At the time of this writing (the middle of the night in the US), no one from Apple or The dePlume Organization was available for comment. We hope to have more for you as the day develops.
Observer Comments
Thu Dec 20, 2007 4:07 am Subject: Uh... why do we need to know more?
I have always been rather ambivilent about this case. Think Secret engaged in some marginally ethical behavior that I wasn't really comfortable with. On the other hand Apple while within its rights, handled it in a rather clumsy fashion and came off as a bit of a bully.
For all concerned it's a good thing this is over and can fade into history. I hope both sides learned from the incident.
Thu Dec 20, 2007 12:31 pm Subject: We'll hear from Nick again
Thu Dec 20, 2007 2:36 pm Subject: Re: Apple Drones
QuoteAnonymous wrote:
You apple drones don't get it. Apple is the only company worse than Micro$oft and yet you continue to support them. When are you fanboys going to wake up and realize you are supporting a tyrannical organization, who will lie, cheat, misrepresent, and sue anyone who gets in their way? Apple products are garbage, including Macs, OSX, iPods, and iToonz!
Yeah. Whatever, dude.
I agree with the sentiment that while Apple could have handled the situation better, they were well within their rights - and duties to their shareholders - to address the problem of company secrets being published on a blog site. They are also within the bounds of propriety in pursuing the individuals who leaked those secrets to the publisher of the blog site, hence the law suit. The suit was not about what Ciarelli published, but rather who he got his info from.
Nick Ciarelli was in the wrong, and he knew he was in the wrong when he published his blog. It does not matter if bloggers are considered a part of professional journalism or not. The ideal of keeping sources secret as a protected right does not now nor has it ever extended to the right to use that shield when breaking the law. In the case of Apple, civil law was broken when the information released was the obvious result of one or more people violating one or more NDAs.
Thu Dec 20, 2007 7:49 pm Subject: Re: Totally unfair treatment
QuoteAnonymous wrote:
does Microsoft penalize sites when they mention hinted features in IE8?
Hinted features is very different from information essentially stolen from the company (through violation of the NDA) and published. Anybody can speculate. People under NDAs have different rules applied, because they signed a legally binding document. That is why it is called a Non-Disclosure Agreement. They agreed, in a legally binding document (a contract between them and the company) to NOT DISCLOSE information regarding whatever they signed the agreement for.
QuoteDoes Ford sue sites when they publish pictures of yet-to-be-released vehicles which are photographed during test drives in all their shrouded (they *do* literally shroud them!) glory?
No, because the photographs are legally obtained from off the premises. The wonders of long lenses. Ford knows they cannot do anything about that, which is why they shroud them. Taking a picture inside the design facility and publishing those, however, would be in violation of the companies policies (I would bet), and the violator can/would be fired ( if it is an employee), or sued (if it is not). Often, when you enter a facility like that, you sign NDAs for that very reason.
QuoteRumor sites are free advertizing! Apple is not only shutting down free PR but it's tarnishing its own image with this behavior. At the moment, I'm ashamed of Apple for this. Tsk-tsk!
Apple isn't shutting down rumor sites on a whim. They are going after those that are soliciting for information (not just rumors) and publishing it. Macrumors,MacOSrumors and others are still around. If they publish things that are obviously in violation of an NDA, then they run the risk of being sued. That's business.
I don't particularly like it either (after all, everybody loves getting early "insider" information), but I can't really blame Apple for trying to protect their product designs and info. Every company does (or should do) it. If they don't, they are remiss in their responsibilities to their shareholders.
QuoteI think you're overstepping. Nick did not STEAL confidential info, he simply left an open invitation on his website for Apple insiders to contact him with news of upcoming product releases. Apple was using him to get at those employees and/or contractors who violated their NDA, and he wouldn't give up names on grounds of journalism. And let's be clear on another thing: Thinksecret.com was not a blog - it was a news site, PERIOD. Big difference between the two.Guest wrote:
Third, just because any idiot can publish a blog does not confirm upon them the right to steal confidential information.
Of course, the right to free speech loses its traction when it comes to blabbing about sensitive corporate materials, but all the same if Apple were really that much of a corporate thug that a lot of people seem to have a perception of, they'd be going after many other rumor and blog sites, such as the Fake Steve Jobs blog, or AppleInsider.com. Thinksecret's downfall was that it was too accurate with info that isn't publicly available.
Thu Dec 20, 2007 10:01 pm Subject: So, why is ThinkSecret giving up?
Quotexmattingly wrote:
I think you're overstepping. Nick did not STEAL confidential info, he simply left an open invitation on his website for Apple insiders to contact him with news of upcoming product releases. Apple was using him to get at those employees and/or contractors who violated their NDA, and he wouldn't give up names on grounds of journalism.
That seems to be an accurate synopsis of the issue. Therefore, because Apple really had no grounds to sue someone like Nick who was NOT violating any NDA that he had ever made with Apple when he published information given to him by people who were violating THEIR NDAs with Apple, what I'm wondering is, "Why is ThinkSecret giving up? Was Nick just tired of it all, or did Apple make him a rich offer?"
QuoteThe grounds of their lawsuit was more or less being a party to a person(s) who violated legal contracts. Or in other words, their stance is "just having someone tell you secrets doesn't give you in inherent right to tell the world those secrets, under the umbrella of journalistic freedoms." To that extent, I think Apple does have some precedence I they can prove that the release of confidential info can harm their business.BurmaYank wrote:
Therefore, because Apple really had no grounds to sue someone like Nick who was NOT violating any NDA that he had ever made with Apple when he published information given to him by people who were violating THEIR NDAs with Apple, what I'm wondering is, "Why is ThinkSecret giving up? Was Nick just tired of it all, or did Apple make him a rich offer?"
It's hard to say what the terms of the settlement were. One thing's for sure though, Apple's legal team would have dragged Nick dePlume over the coals had they gone to trial.
Fri Dec 21, 2007 8:32 am Subject: Apple seems to have no grounds to sue Nick
Quotexmattingly wrote:QuoteBurmaYank wrote:
... Apple really had no grounds to sue someone like Nick who was NOT violating any NDA that he had ever made with Apple when he published information given to him by people who were violating THEIR NDAs with Apple,
The grounds of their lawsuit was more or less being a party to a person(s) who violated legal contracts...
I don't see how that could be valid grounds. It seems to me that if one has no contract with Apple, Apple cannot (reasonably/successfully) sue one for violating someone else's contract - that's not illegal even in California, surely.
QuoteOr in other words, their stance is "just having someone tell you secrets doesn't give you in inherent right to tell the world those secrets, under the umbrella of journalistic freedoms." To that extent, I think Apple does have some precedence I they can prove that the release of confidential info can harm their business.
If Nick had resided & published in California, where there is a tough "Trade Secrets" law which may or may not legitimately trump a journalist's "privilege" (we have yet to see that decided), then he WOULD be subject to suits under that law, and Apple would then need, as you indicated, to "... prove that the release of confidential info can harm their business." But if Nick instead resided and published in the other states where there are no such laws (as I understand is the case in most other states), then on what basis could Apple sue him there? I don't see any grounds for Apple to legitimately sue him outside of California's "Trade Secrets" law.
People still seem to be missing the central intent of the lawsuit, and the ramifications from the central intent. The intent of the lawsuit was to obtain the names of the people who violated their NDAs in releasing information to Think Secret.
The suit to obtain the names was based on the established fact that Think Secret DELIBERATELY invited individuals to violate their NDAs. That open invitation was what made Think Secret a culpable partner in the commission of a civil crime. Had an employee of Apple gone to Think Secret on their own, without that public invitation, then the legal scene would have been different. Openly inviting people to violate their NDAs is what put Think Secret in the wrong, both legally and morally.
Lucky for Nick that Apple could not prove any compensation taking place, or he would have been in REAL deep water as far as liability for what he published.
Apple's intent was not to shut down a rumor site, nor to interfere with free journalism. I am certain the executives of Apple are cognizant enough to understand the advantages of rumor sites building up anticipation and excitement about upcoming Apple products. But there is a huge difference between publishing rumors or conjecture, and publishing actual company secrets. Think Secret did the latter, and did so by obtaining those secrets using legally (and morally) questionable tactics.
Fri Dec 21, 2007 1:44 pm Subject:
Quotexmattingly wrote:
It's hard to say what the terms of the settlement were. One thing's for sure though, Apple's legal team would have dragged Nick dePlume over the coals had they gone to trial.
Ironically, the terms of the settlement are probably covered under a confidentiality agreement (IAW an NDA).
Fri Dec 21, 2007 3:22 pm Subject: No. It's only legally wrong (maybe) in California.
Quotezewazir wrote:
People still seem to be missing the central intent of the lawsuit, and the ramifications from the central intent. The intent of the lawsuit was to obtain the names of the people who violated their NDAs in releasing information to Think Secret.
The suit to obtain the names was based on the established fact that Think Secret DELIBERATELY invited individuals to violate their NDAs. That open invitation was what made Think Secret a culpable partner in the commission of a civil crime. ... Openly inviting people to violate their NDAs is what put Think Secret in the wrong, both legally and morally.
Ahhh... huh-uh.
It seems to me that while deliberately inviting others to "...violate their NDAs", may be morally wrong anyplace, it would only be a civil crime in jurisdictions where there are "Trade Secret" laws like the one in the state California (and that's only a "perhaps", there too).
In the rest of the US (where Nick presumably is/did this), the plaintiff Apple would have to have had an NDA with the defendant Nick Ciarelli in order to make the case that a civil crime like contract violation had occurred.
Fri Dec 21, 2007 3:43 pm Subject: Re: No. It's only legally wrong (maybe) in California.
QuoteBurmaYank wrote:
Ahhh... huh-uh.
It seems to me that while deliberately inviting others to "...violate their NDAs", may be morally wrong anyplace, it would only be a civil crime in jurisdictions where there are "Trade Secret" laws like the one in the state California (and that's only a "perhaps", there too).
In the rest of the US (where Nick presumably is/did this), the plaintiff Apple would have to have had an NDA with the defendant Nick Ciarelli in order to make the case that a civil crime like contract violation had occurred.
And you STILL miss the point. Apple did not accuse Think Secret nor Nick Ciarelli of any civil crimes. The people guilty of the civil crimes were those who told company secrets covered under NDAs to Think Secret.
The suit was aimed at the fact that the actions of Think Secret induced a civil crime to take place. That action, regardless of trade secret law, makes Think Secret at least culpable. Had the same types of action led to criminal acts (as opposed to civil violations) Think Secret could well have been charged as an accomplice before the fact. But civil law is more lenient.
But the fact remains that the actions of Think Secret led directly to the violation of civil law (NDAs are legally binding documents in ANY state as it does not take a special trade secrets law to enforce them). That fact made the action of suing for the names of the individuals a legally sound action on the part of Apple.
Fri Dec 21, 2007 4:07 pm Subject: No. Nick was not culpable for any civil crime.
Quotezewazir wrote:
And you STILL miss the point. Apple did not accuse Think Secret nor Nick Ciarelli of any civil crimes. The people guilty of the civil crimes were those who told company secrets covered under NDAs to Think Secret.
The suit was aimed at the fact that the actions of Think Secret induced a civil crime to take place... That action, regardless of trade secret law, makes Think Secret at least culpable
Do I really miss your point? I think that merely somehow inducing a civil crime (like contract violation) to take place is not itself a civil crime anywhere, not even in California, unless one was a prior signator to that contract.
QuoteBut the fact remains that the actions of Think Secret led directly to the violation of civil law (NDAs are legally binding documents in ANY state as it does not take a special trade secrets law to enforce them). That fact made the action of suing for the names of the individuals a legally sound action on the part of Apple.
Yes, true. Apple CAN sue (or at least subpoena) for those names anywhere.
But, no. None of Nick's actions "...makes Think Secret at least culpable..." for any civil crime (outside of California - and that's only a "maybe")
An NDA is a legally binding CONTRACT between an employer who wishes to keep secrets and the employee with whom the employer entrusts those secrets.
It does not matter what state you reside in, violation of a legally binding contract has certain legal liabilities associated, to include any damages which result from the contract violation as well as any stated penalties defined within the contract. (Such as being summarily fired without severance, etc.)
If a government agency entices an individual into unlawful action, it is called entrapment. Not only is the entrapped individual immune from any prosecution, the agency is liable for any damages to the idividual resulting from the entrapment.
Similarly, if a private individual deliberately entices another into the commission of a crime, they can (and often are) held criminally liable for the crime as an accomplice before the fact.
There is more leeway when talking about enticing others to violate civil law, but the bottom line remains that an individual who instigates a civil violation can be held accountable for the results of the violation.
All Apple wanted was the names of those employees who violated their NDAs, and they were right to pursue those identities. Nick had that information that Apple needed, and the REASON he had the information is he INSTIGATED the entire episode. Apple was correct in trying to get those names from Nick (Though they probably could have handled it better) and Nick was wrong in withholding the names.
Fri Dec 21, 2007 10:57 pm Subject: You've confused civil culpability with criminal culpability
Quotezewazir wrote:
An NDA is a legally binding CONTRACT between an employer who wishes to keep secrets and the employee with whom the employer entrusts those secrets.
Correct.
QuoteIt does not matter what state you reside in, violation of a legally binding contract has certain legal liabilities associated, to include any damages which result from the contract violation as well as any stated penalties defined within the contract. (Such as being summarily fired without severance, etc.)
Correct.
QuoteIf a government agency entices an individual into unlawful action, it is called entrapment. Not only is the entrapped individual immune from any prosecution, the agency is liable for any damages to the idividual resulting from the entrapment.
Correct, for the most part, as I understand it. But since this would be a governmental action, this whole question will be one of criminal, not civil culpability/immunity.
QuoteNo. NOT correct in the case of a enticing another into the commission of a CIVIL crime.Similarly, if a private individual deliberately entices another into the commission of a crime, they can (and often are) held criminally liable for the crime as an accomplice before the fact.
Someone who, like Nick, could not be subject to such civil culpability (because he never had any contract with Apple which could be violated - which is the civil crime we've been talking about) would NEVER be held criminally or civilly liable as an accomplice for the civil crime someone else committed, regardless of how much he might have induced it. Only those who have signed a contract can be held in any way responsible for violating that contract. There's no such thing as being civilly liable as an accomplice for a civil crime. It can't happen under civil (contract). law, as I understand it.
QuoteThere is more leeway when talking about enticing others to violate civil law, but the bottom line remains that an individual who instigates a civil violation can be held accountable for the results of the violation.
Totally untrue. There is not just "more leeway when talking about enticing others to violate civil law", there's total freedom to do so.
QuoteAll Apple wanted was the names of those employees who violated their NDAs, and they were right to pursue those identities. Nick had that information that Apple needed, and the REASON he had the information is he INSTIGATED the entire episode. Apple was correct in trying to get those names from Nick...
OK.
Quote...and Nick was wrong in withholding the names.
Morally wrong? Perhaps.
Wrong before civil law (other that a Trade Secrets law)? NOPE!
Sat Dec 22, 2007 2:12 am Subject: Re: Apple seems to have no grounds to sue Nick
QuoteThat would be called willfully facilitating a criminal act. If you knowingly drive someone to a bank heist, you're no less of a criminal than if you stole the money. This so-called "trade secret" law that you keep falling back on isn't the central contingency: the broader scope of Apple affiliate(s) having violated a legally binding contract is.BurmaYank wrote:
I don't see how that could be valid grounds. It seems to me that if one has no contract with Apple, Apple cannot (reasonably/successfully) sue one for violating someone else's contract - that's not illegal even in California, surely.
Locality has absolutely nothing to do with jurisdiction in this case. Once you hit that "upload" button and broadcast it to the world, as far as U.S. is concerned it becomes a case for Federal courts. Are you under the misnomer that you can get away with a crime in the U.S. by fleeing into Mexico, or that Chinese software pirates have immunity from stealing from U.S. businesses?
QuoteYep, the open invitation is what sealed the deal. However, I don't really consider it a moral issue. Publicly releasing photos of Britney Spears' fun zone is amoral (and we all know she can afford to buy underwear); telling Apple's secrets a couple o' days/ couple o' weeks before the product hits the market is more like giving everyone a sneak peek at the Christmas presents under the tree.zewazir wrote:
Openly inviting people to violate their NDAs is what put Think Secret in the wrong, both legally and morally.
QuoteWell... he did have advertising on his site. So I'm sure there was at least some profit involved.zewazir wrote:
Lucky for Nick that Apple could not prove any compensation taking place, or he would have been in REAL deep water as far as liability for what he published.
QuoteThis one sentence sums up the issue better than anything else I've read. Add to that the unfailing accuracy if TS' reports: Apple knew someone was dishing their junk.zewazir wrote:
But there is a huge difference between publishing rumors or conjecture, and publishing actual company secrets.
Has anyone considered the possibility that Apple not only figured out who was talking to Nick, but may have also showed him those NDA contracts? It could have been as simple as the lawyers telling Nick, "Look, we know who's been talking to you and they've been dealt with. Here are the legal contracts they signed with us: you're not going to be hearing from these guys again, so the gig's up. If you close down your site, we won't sue you." That's of course, all an assumption on my part but one way or another I really think Apple had him in checkmate, and Nick had no choice but to discontinue.
Sat Dec 22, 2007 4:39 pm Subject: You stilll confuse criminal culpability w/ civil culpability
Quotexmattingly wrote:QuoteThat would be called willfully facilitating a criminal act. If you knowingly drive someone to a bank heist, you're no less of a criminal than if you stole the money.BurmaYank wrote:
I don't see how that could be valid grounds. It seems to me that if one has no contract with Apple, Apple cannot (reasonably/successfully) sue one for violating someone else's contract - that's not illegal even in California, surely.
You seem bound and determined to keep confusing civil (contract law) culpability with criminal law culpability, so I really should now just give up on this thread to avoid repeating myself. But, instead, I'll give it one last try:
As you worthy opponents have correctly said, if a private individual deliberately entices another into the commission of an act defined as a crime under CRIMINAL LAW, s/he can be (and often are) held criminally liable for the crime as an accomplice before the fact.
But we are talking about CIVIL LAW culpability, not CRIMINAL LAW culpability, in case the case of Nick the accomplice. If a private individual such as Nick entices another person into the commission of an act that is only a "crime" under CIVIL LAW* for that other person, then Nick the enticer COULD NOT BE subject to any CIVIL culpability as long as he never had any contract with Apple which could be violated (which he did not have)*. Under civil (contract) law, only those who have signed a contract can be held in any way responsible for the CIVIL LAW "crime" of violating that contract, and so obviously there cannot ever be an