CALIFORNIA — Apple Computers Inc. has filed suit against the student editor of a Web site that the company says published trade secrets illegally obtained from Apple employees who are bound by confidentiality agreements.
Apple Computers Inc. v. N. DePlume, filed Jan. 4 in Santa Clara County Superior Court, targets www.ThinkSecret.com and Nick DePlume, the site’s editor. DePlume’s real name is Nicholas Ciarelli; Ciarelli, 19, is a student at Harvard University.
ThinkSecret.com, which was launched in 1998, has published exclusive stories on Apple products, most recently a flash version of the iPod and a Mac mini computer, before they were introduced to the public. The site also provides phone numbers, e-mail addresses and an anonymous e-mail form for readers to submit news tips and inside information.
Apple claims it is illegal under California’s Uniform Trade Secrets Act to expose information knowingly obtained from sources bound by confidentiality agreements. Included as defendants in the lawsuit are the unidentified sources of information published on ThinkSecret.com.
“Think Secret appreciates your information and tips. All submissions are strictly confidential, and your identity will not be released; we take the utmost precautions in protecting our sources. If you cannot be directly quoted or if your information should be considered off-the-record, please indicate as such in your email,” the site reads.
Ciarelli said he considers his role as ThinkSecret.com’s editor equal to that of any journalist.
“I employ the same legal newsgathering practices used by any other journalist,” he wrote in an e-mail. “I talk to sources of information, investigate tips, follow up on leads and corroborate details.”
Apple has also subpoenaed two other industry Web sites — AppleInsider.com and PowerPage.org — to reveal sources.
“It is also crucial that a reporter have the ability to maintain the confidentiality of his or her sources, and I think the public realizes this as well,” Ciarelli said.
ThinkSecret.com is being defended by Terry Gross, a San Jose-area attorney who has worked with the Electronic Frontier Foundation, an Internet civil liberties organization. Gross called Apple’s lawsuit “meritless.”
“There’s just no contention here that Think Secret did anything improper,” Gross said. “I would say it’s an attempt by Apple to improperly silence people from talking and speculating about their products. They’re trying to use their economic clout to silence small journalists who don’t have resources to fight back against these types of lawsuits.”
Apple claimed in the lawsuit that it has suffered “irreparable harm” because of ThinkSecret’s stories.
“Innovation is what Apple is all about, and we want to continue to innovate and surprise and delight people with great products, so we have a right to protect our innovation and secrecy,” Apple’s senior vice president of worldwide product marketing, Phil Schiller, told The Associated Press.
But Ciarelli, who calls himself an “enthusiastic fan” of Apple products, said he believes Think Secret’s reporting helps generate interest in Apple and its products.
Ford Motor Company and Adidas shoes have filed lawsuits similar to Apple’s, accusing publishers of misappropriating information. Pamela Samuelson, a law professor at the University of California at Berkeley, said court precedent seems to side with ThinkSecret.com, as long as the site’s reporters and editors were not directly involved in the misappropriation of information.
Samuelson said she expects the case against ThinkSecret.com will be decided along those lines as well.
“I would actually be optimistic that the court would say, ‘Gee, this is a place where the tension between the First Amendment and trade secret interests of Apple have got to tip in favor of the First Amendment,'” she said.
Moreover, Samuelson said, the mere presence of an Internet forum to provide the insider information may not qualify as “inducing” employees to violate their confidentiality agreements.
“In copyright law and patent law, merely providing some means for some illegal act to happen is not enough. You have to take affirmative steps that advance the infringement,” she said. “And frankly, I don’t think that providing a Web site by itself is enough.”
Ciarelli said he is confident that Think Secret’s reporting is protected by the First Amendment.
“Journalists cannot be held liable for publishing information that they lawfully obtained, regardless of how the source may have obtained the information,” he said. “Our society doesn’t want journalists to censor themselves due to fear they may be sued when they publish news of public interest.”
Think Secret has until Feb. 16 to respond to Apple’s claim. Gross said he will file a motion to dismiss the claim in its entirety and will also ask the court to sanction Apple for filing a meritless claim.
Apple’s decision to sue ThinkSecret.com, rather than any of the larger industry publications or major media sources that cover the corporation, is worth noting, Ciarelli said.
“Apple is instead attempting to silence a small online publication, which presents a troubling affront to the protections of the First Amendment,” he said.