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June 15th, 2000

[Editorial] Where Are The Tears Over AppleInsider's Legal Troubles?
by Michael Munger

Macintosh Web sites have been reporting during the last few days - thanks to original articles from legal publications - that the Macintosh News Network (MacNN) faces a lawsuit from Adobe. The case started when MacNN used its AppleInsider site to publish inside information about Photoshop 6.0 and ImageReady 3.0, apparently from leaked company documents.

In short, Adobe claims that MacNN could pay up to tens of millions of dollars in damages for loss of current version sales and loss of competitive edge over other companies. MacNN is not financially strong enough to survive such an amount.

I found out yesterday's when reading John H. Farr's daily news and commentary at Applelinks that Microsoft was tense with AppleInsider too when they discovered a special report about its upcoming Office 2001 business software suite.

It is impossible to determine whether MacNN will ever actually pay damages for the headaches caused to Adobe and Microsoft. The US constitution's First Amendment seems strong enough to bail them out. In fact, here is what John H. Farr said about it:

The fact is, however, that First Amendment rights in the US are very powerful, and it is far from clear that any corporation can win in the courts with lawsuits like Adobe's, even if the company is on relatively firm moral ground.

The First Amendment protects freedom of speech and press in the United States and unless something happens, it is hard to open a breach through it even when you have a case.

On the other hand, it is understandable why Adobe and Microsoft may want to push so hard to muzzle AppleInsider. This week's issue of TidBITS features an article about the subject - probably one of Adam C. Engst's most eloquent articles - which I quote:

According to Henry Perritt, Jr.'s "Law and the Information Superhighway" textbook, liability for trade secret misappropriation can fall both on someone who learns of a trade secret as the result of a special relationship (such as being an employee or signing a nondisclosure agreement to receive confidential information) and on a third party "who discovers the trade secret by accident or through the wrongful conduct of another and uses it with knowledge of its trade secret status."

[...]

The standard argument for publishing rumored information in this kind of situation is that it helps users make more informed buying or upgrade decisions. Perhaps I'm not sufficiently steeped in the graphics world, but I can't see how leaking these details directly benefits most users.

[...]

So if users reap no benefit and Adobe stands to suffer, publishing this information merely has the effect of helping MacNN make a buck off the ads placed on the five Web pages of the story. Nothing wrong with that, but I still find it depressing that a Macintosh publication would publish information that - for little tangible benefit to readers - could have a negative effect on the Mac community by damaging one of the industry's primary software developers.

If you're not sure that this lawsuit is a big deal, consider where the entire Mac industry might be if the release of the iMac had been leaked. What was a huge surprise announcement that catapulted Apple back into the center of attention could have been yet another product announcement that everyone already knew about. The iMac release was primarily about marketing, and Apple couldn't afford to have its big news diluted by a leak. Since then, Apple has commented in analyst calls reported on by MWJ's Matt Deatherage that rumors of constantly impending PowerBooks caused significant drops in then-current sales. A majority of those rumors - promulgated by highly visible rumor sites - turned out to be false, but they meant that Apple was left sitting on inventory as everyone waited for the next PowerBook that was supposedly due any day.

Remember, in the Macintosh ecosystem a bit of altruism can go a long way.

TidBITS article: MacNN Sued by Adobe, News at 11

As Adam said, it is questionable why a publication would risk causing damages to another entity by publishing trade secrets and other such information. We might say that companies need no defense, which is partly true since we often need watchdogs to make sure that they do not abuse their rights, but companies as well as individuals, DO have rights. I say that without a public relations bias.

Let us reverse the situation and imagine what would happen if a writer, who heavily depends on his competitive work to survive in the book industry, faced the same use of his material. Imagine if a publication encouraged members of his household, friends or publishing company to leak some of his private work documents to preview his next bestseller without permission. Wouldn't we say that it is wrong and that knowing everything in advance, including the conclusion, can spoil the surprise and expectations as well as harming sales?

The analogy may sound funny or irrelevant to some, but all the elements are the same. Both the individual writer and the software company have to face loss of private documents, which results in possible loss of sales after the publication of their contents. Whether both are rich or poor, it does not matter. The principles count more than their financial status.

One could easily argue that freedom of speech and press is more important than anything else, but I say that it is not more important than responsibility. Responsibility towards whom? That we have yet to determine. What I know is that if your use of speech and press can cause harm to other people's (legal and legitimate) activities, it is not entirely right, whether it is legal or not. Especially if the "consumer advantage" that you advocate is very little, as Adam Engst proved.

Consumers take advantage of fierce competition between companies, and trade secrets are a part of the equation. Although the First Amendment and freedom of press protect publications, violating such trade secrets does not accomplish much except generating ad sales on other people's back. It might or might not be legal but is it right? I hope that some people out there will ponder the issue.

We do not need rumor sites or publications of inside information in order to benefit from competition or to protect us against abuse. On the other hand, I would ask everybody who disagrees with me: can't we just get along as Mac industry members? Getting along means that everybody could pursue their goals without third-party interference in their private business documents...

After all, it is in the platform's interest to see Adobe and Microsoft come up with great products for the Mac and anything that could impair that is contrary to the Mac's interest. It does not serve users very well to read special reports about hardware and software if it spoils the fun and surprise of an unexpected announcement. It is worse if false information misleads us and makes us think that blunt reality sucks compared to the unrealistic promises we read from "inside sources."

Even if this lawsuit never goes to court, it may give rumor sites a good scare, enough to understand that not everybody benefits from their work. It may even force them to wonder if they do the right thing by publishing a particular piece. I hope that this case will urge a few heads to think more in the future. If it does only that, Adobe wins intellectually.

Believe me, I consider freedom of speech and press extremely important and in fact, I use them to the fullest. However, I doubt whether it is right to publish virtually anything when the goal is little more than increased page views.

I invite all of you to give serious thought to the issue. No matter what your conclusion you draw, just think about it...

Michael Munger discovered Macs in 1994 in college during his pursuit of a journalism degree. Since then, he has never looked back at PCs. A former student of history now taking Public Relations at University of Montreal, he is a French Canadian living in Montreal, where he advocates the Macintosh with vigor.

He co-founded MacSoldiers in May 1998, where he was Assistant Editor and Columnist. He contributed to ResExcellence and MacPlaza with resource editing and interface goodies. He also layed a virulent spanking threat on the MacAddict staff! (Sept. 98 issue of MacAddict magazine, page 13). Be very afraid...

You can learn more about him at www.cyberboss.net, his personal Web site.



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