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Lawyer for Ciarelli seeks to dismiss case

updated 10:40 am EST, Fri February 4, 2005

Lawyer dismissal of case

The lawyer representing Nick Ciarelli of Think Secret said he will seek to dismiss the case on within two weeks. Attorney Terry Gross, a lawyer prominent in free-speech and Internet issues, said he decided to represent 19-year-old Ciarelli on a pro bono basis after the Harvard student said he didn't have the funds to defend himself against Apple. "Supreme Court law is pretty clear," said Gross in an interview. "Journalists can't be prohibited from publishing material if it's lawfully obtained. Apple is just trying to intimidate this college kid."

by MacNN Staff

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Dog Like Nature
Dedicated MacNNer

Joined: May 2004

0

02/04, 10:59am | report spam | close Reply |
First Amendment??

This has nothing to do with free speech! Nick should be forced to reveal the names of those who violated the NDA.

Simple as that!

minimansion
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Joined: Aug 2001

0

02/04, 11:06am | report spam | close Reply |
I agree!!

I AGREE!!!!

Jonathan-Tanya
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Joined: Oct 2004

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02/04, 11:16am | report spam | close Reply |
let the Court decide

If the Supreme Court disagrees with you, will you sing a different tune, or do you know better than the supreme court?

The fact is, it has everything to do with free speech. If a journalist cannnot pursue a story, then speech is dead.

ArizonaJoe
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Joined: Aug 2004

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02/04, 11:22am | report spam | close Reply |
Mac cultists...

...are such fascists.

And hypocrites.

iomatic
Mac Elite

Joined: Oct 1999

0

02/04, 11:45am | report spam | close Reply |
I love Macs.

But, free speech trumps corporate law. Hooray! Unlike Fox, where bias trumps journalism...

...

...

marzetta7
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Joined: Dec 2003

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02/04, 11:54am | report spam | close Reply |
Free Speech?...My Arse

It sickens me when someone posts something on the internet and calls themself a "journalist." The fact is, this has NOTHING to do with free speech, it is simply a smokescreen to hide under as many irresponsible people try to do, and successfully do unfortunately. I'm sure you've all seen this but here it is again for those screaming FREE SPEECH! It is a article by a Harvard Law Professor on why old Nick is most likely going down:

...Milgrim and Harvard Law Professor Lloyd L. Weinreb, when told by a Crimson reporter about the case, said Ciarelli might have a difficult time defending his actions.

�If that student is inviting people to give him information that was violating a trade secret he might be liable as a contributory infringer,� Weinreb said. An infringer violates the law directly, but a contributory infringer knows about the infringement and facilitates it in some way.

Milgrim agreed, saying that even if Ciarelli had not solicited trade secrets but had simply posted them, he might still be liable under California law.

�California is one of approximately 44 or 45 states that have adopted [the] Uniform Trade Secrets Act. That statute makes it wrongful to acquire or publish without authorization information you know or have a reasonable basis to know is a trade secret of another,� Milgrim said.

�Just because you receive something on the internet does not mean you have a green light to do whatever you want with it,� Milgrim added.

He explained the type of damages that could have motivated Apple�s lawsuit. �Sometimes in the software field where advances are measured in nanoseconds, the preannouncement will permit competitors to develop products more timely,� Milgrim said.

In its complaint, Apple demands that Ciarelli and his company pay damages, hand over �gains, profits, and advantages� from the alleged �misappropriation� of trade secrets and attend a trial by jury. According to the complaint, Think Secret generates revenue from online advertising.

Apple also requested an injunction to stop Think Secret from spreading future product information...

medmuse
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02/04, 12:02pm | report spam | close Reply |
Bitter

Kind a bitter aren't you marzetta7? "It sickens me..." Jeesh. By the by, did you obtain permission before posting that copyrighted material here?

Jonathan-Tanya
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02/04, 12:04pm | report spam | close Reply |
@marzetta7

I've noticed it isn't really anyone but the anti-speech people that are doing the screaming.

I've already posted the california constitution so I won't repeat that again, but the point is, journalists are specifically protected from this type of action.

And, I don't think what most of you are grasping, is that everyone who is employed (and wants to work) can be made to sign an NDA. I had to sign an NDA when I was 18, to take a 3.35/hr. job to work at a Domino's Pizza franchise.

Is that typical? No. but it can happen, and I've seen NDA's used to silence opinion of employees all the time. Again...it would be too long and drawn out to bring it all up in a forum comment.

But, as protections on free speach is lessoned, it chills speach.

By the way, Nick wasn't irresponsible at all. He is a very responsible, enterprising young journalist, that runs a popular site, whose readership relies on him to ferret out stories of interest.

This is how all journalism works... the fact that Nick is an internet journalist, doesn't make him any less protected than a print journalist.

marzetta7
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02/04, 12:16pm | report spam | close Reply |
RE: I love Macs

But, free speech trumps corporate law. Hooray! Unlike Fox, where bias trumps journalism...

Don't be mad because FOX is taking your liberal media outlet's market share (CBS,CNN,ABC,NBC). It's not their fault that the way in which they report news coincides more with the way the average American thinks. I guess your still steaming that they--Fox-- got the best ratings for the President's State of the Union Address, huh? Newsflash, bias is present in every piece of "journalism" nowadays--conservative or liberal. So why do you choose to pick on Fox?

wjdennen
Junior Member

Joined: Apr 2000

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02/04, 12:21pm | report spam | close Reply |
See this:

http://www.turnto10.com/news/3929582/detail.html

Go Bells
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02/04, 12:26pm | report spam | close Reply |
To Marzetta7

Go Home Redneck�

Go Bells
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Joined: Jun 2004

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02/04, 12:26pm | report spam | close Reply |
To Marzetta7

Go Home Redneck�

uhanna
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Joined: Jul 2002

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02/04, 12:27pm | report spam | close Reply |
RE: I love Macs

"But, free speech trumps corporate law. Hooray! Unlike Fox, where bias trumps journalism..."

or like left wing elite are bias TO THE LEFT!

abe2
Fresh-Faced Recruit

Joined: Dec 2004

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02/04, 12:31pm | report spam | close Reply |
Shut up Jonathan-Tanya

The fact is a law got broken (trade secret law) and this so called lawyer is trying to pass it off as a free speech issue.

Face it - the only thing not making this a coporate espionage case is the fact that StealSecrets.com isn't a direct competitor to Apple, much like the difference between a stalker and a paparazzi is the camera.

Elektrix
Dedicated MacNNer

Joined: Sep 2001

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02/04, 12:33pm | report spam | close Reply |
"liberal media"

Marzetta, are you joking? Have you actually watched any of the so-called "liberal media" networks? They did a very shoddy job of covering the Bush administration in the first term, and have constantly fed into the agenda they are trying to push (most recently in how they have covered the social security issue, making sure to put in all the Bush administration talking points, etc.). Outside of some rare exceptions, these aren't specifically "liberal networks", and have been very uncritical and unquestioning of a lot of what the conservatives are sending out. And this is not hard to understand when you look at the large corporate ownership of these networks. It's not in their interest to get on their bad side, and when they do (as in the case of the CBS "memogate" stuff, they have bent over backwards to try and win favor with the White House again....... which has resulted in more uncritical reporting).

ZinkDifferent
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02/04, 12:36pm | report spam | close Reply |
The Law...

It's really quite simple - just because Nick publishes stuff on the internet, does not make him a 'journalist'. It takes more than that to qualify -- one of the criteria is a responsibility towards protecting his sources, which he has woefully failed to do by reprinting specs he had been given word-for-word while at the same time blatantly ignoring repeated requests from Apple to remove the material. If he head just acted as requested by Apple, he could have saved himself the current trouble he's in, and kept his sources safe.

But, Oh no, it's far more important for a 19-year old to stand up to 'the Man', or to impress his peers (or thin=k he does) with 'cool' information - well, Nick, you didn't impress anyone (except maybe other 19-year olds), but your own actions got you in the trouble you're in, now.

So, does Nick act responsibly in return, and assume responsibility for his s****-up? Of course not, he hides both behind a pro bono lawyer (who sees a way to gain publicity from this for a few hours' invested), and the always popular 'first amendmnet' of Free Speech.

Well, a couple of points to ponder for the pro Free-Speech dorks in the audience:

- Free Speech and the First Amendment apply to the gov't ("Congress shall make no law...."), and NOT private enterprise or corporations. Congress may not restrict the rights of a 'journalist', but a private enterprise can do whatever they want.

- Please note the lawyer's words, which were quite carefully chosen: "Journalists can't be prohibited from publishing material if it's lawfully obtained" -- IF IT IS LAWFULLY OBTAINED. We have already previously established that violating trade secrets is unlawful in California, and a violation of an NDA (or encouraging violation of an NDA, or being aware that the information violates an NDA) makes acquiring such information of an unlawful nature (as doing so is in violation of a lawful contract).

Honestly, this is pretty cut and dry.

The amusing thing is that the above quote of his lawyer pretty much sealed his doom - as all Apple needs to do is demonstrate that Nick's sources were under NDA, for which Nick will need to reveal them. Similarly, if Nick claims they were not (and thus he wasn't violating any laws), he will need to produce his sources to testify in his defense.

Thus, regardless what happens, thanks to his gabbing to the press, Nick's lawyer just legitimized discovery of his sources.

...and the sources is really all Apple is interested in. There's most likely a few people within Apple frantically sending out resum�s right about now.

Oh, and just as a personal addedndum - Nick brought this all upon himself, and as such deserves every minute of this spectacle.

ZeitGeist

Jonathan-Tanya
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02/04, 12:39pm | report spam | close Reply |
what the heck

I don't generally think ppl read long msg's...but what the hay...here is my take on stuff:

The fundamental lynchpin in the argument of those trying to say Nick is 'guilty' is the idea, they say, that he was soliciting NDA covered trade secrets.

They say its absolutely obvious that Nick was trying to get someone to break a valid NDA.

Well, thats utter nonsense.

In the first place, I generally assume that people are following the law, not breaking it. Why would Nick ever assume that his source was breaking an NDA? Thats absurd.

But lets follow this logic...if you are one to assume that people generally break the law, then you have to assume not only that your source has broken the law, buy you'd have to assume Apple broke the law when they wrote the NDA too. After all, if people break the law, Apple is made up of people...that's logic for you.

I don't think Apple broke the law, but I've seen NDA's that are overbroad. In fact, its commonplace. Boilerplate language restricts things, that would be thrown out of court, if it went to Court. Why? Because it's effective. Lawyers are pragmatists, don't ever forget that. A practicing lawyer and a professor are two different people, who have two very different perspectives and often different conclusions about what the law really is. I've seen employers who restricted their employees from having political bumper stickers on their cars. Not legal, but the employees removed the bumper stickers.

You see overbroad language all the time, in EULA's, you even see it in your standard Credit Card Terms of Service.

Boilerplate langauge, for example, a clause that says you will take everything to arbitration. If the law in your state says you can use small claims Court, then you can absolutely ignore the arbitration clause, because the contract cannot trump the law. But most people are intimidated by boilerplate language, because they cannot afford the risk, if they are wrong. Again, pragmatism says write that Terms of Service a particular way... I'm sure a law professor at Harvard would use a different approach.

So..now you have to assume not only that Nick knew there was an NDA, but you have to assume that Nick had read the NDA, knew that it was valid, knew that it wasn't overbroad and was enforceable.

Now, if every journalist had to run this type of intensive research, law review...and not only try, but be required to be correct every time about the conclusions...then speech would be severely hampered. Not that the anti-speech people would care about that... I've told the story about an employer forcing employee's to remove political bumper stickers, to preserve the corporate image...and you'd be surprised but lots of americans think thats perfectly OK. They just don't see any value in free speach at all. They are lambasting Nick,

ZinkDifferent
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Joined: Jan 2005

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02/04, 12:45pm | report spam | close Reply |
(sigh!)

Hi Jonathan-Tanya:

Are you a lawyer, or are you a wide-eyed philosophy student? Because, no one (and I mean, NO ONE) with any common sense, living within this society, would come up with the hare-brained 'logic' and assumptions you just posted.

"In the first place, I generally assume that people are following the law, not breaking it. Why would Nick ever assume that his source was breaking an NDA? Thats absurd."

Why would Nick ever assume that his source was breaking an NDA? Oh, I don't know, if he knew that his sources worked at Apple, worked for Apple, or was a contractor for Apple, it doesn't take a leap to understand that they signed an NDA.

Besides, as you well know, claiming "I didn't know" does not remove culpability.

ZInkDifferent

alex627
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Joined: Oct 2004

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02/04, 12:49pm | report spam | close Reply |
witness the slow march

toward corporate crypto-fascism.

Some of you fanatics need a sound beating.

theduffsronme
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Joined: Sep 2004

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02/04, 12:59pm | report spam | close Reply |
He's not a journalist.

Think Secret is more of an extended blog than a real, honest-to-goodness newspaper or other news site. The very name of it implies he's welcoming illegally-obtained information. He cooked his own goose, and had plenty of warning from Apple that they were going to do something like this.

theduffsronme
Fresh-Faced Recruit

Joined: Sep 2004

0

02/04, 01:02pm | report spam | close Reply |
Re: witness..

"corporate crypto-fascism"

Here's a guy in love with his own words. What the heck does this mean?

Do you actually know what a fascist is?

jpellino
Fresh-Faced Recruit

Joined: Oct 1999

0

02/04, 01:12pm | report spam | close Reply |
The Eddie Haskell Defense

Nick wants to be 1337.
Nick publishes stuff he knows violates a contract.
A party to the contract sues under state tort law.
Nick claims he's innocent and/or protected.
Please.
You can say anything you want, but you have to pay the price.
if this is a 1st Amendment issue, then any NDA is unconstitutional.
And that ain't going to happen.

flask
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Joined: May 2004

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02/04, 01:18pm | report spam | close Reply |
okay...

So let me get this straight... if there were no Uniform Trade Secrets Act in California, you all would be okay with what Nick did? Because without that law, there's really no case here. I'm just curious if your hard-lined stance is based on the assumption that all laws are just and infalliable, or simply a bias toward supporting Apple. Or both.

marzetta7
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02/04, 01:22pm | report spam | close Reply |
RE: what the heck

Now, if every journalist had to run this type of intensive research, law review...and not only try, but be required to be correct every time about the conclusions...then speech would be severely hampered.

So what your saying is that some journalists if you can call them that are naturally lazy. Ok, I can see that, but that still doesn't take responsiblility or consequences and throw them out the window. And that is why I personally think Apple has a strong case for going after Nick. He will be responsible for breaking a law, even if he was clueless about the law, doesn't make him immune.

Why would Nick ever assume that his source was breaking an NDA? Thats absurd.

Because he KNOWS that the information he collects is confidential and not for public knowledge until its release. That was Nick's business, getting secret information and leaking out to the public, I'm sure he was well aware that Apple employees had NDAs, he just chose to leak the information he obtained anyway. Your logic reminds me of Barry Bonds,...

no, I didn't know I was taking steroids. That's absurd. Every day I would make my body injest substances that were unknown to me, even though I'm an athlete and make it my business to KNOW what I put in my body. I was just taking some flax-seed oil and cream for my arthritis to my knowledge, forget the fact that I grew double in size and hit twice as many homeruns, and proceeded to give my trainer monetary kickbacks...

But I'm sure old Barry always thought he was following the law. Either that, following your logic, forgot to do his "intensive research" of what steriods does to your body. Don't be naive.

Also, wjdennen posted an article before where I found an interesting statement:

Throughout his 30-year career, Jim has broken stories on the mob, public corruption and crime. Many of these reports might not have seen the light of day if Jim did not have confidential sources who were willing to risk their reputations, their jobs, even their lives to come forward and provide him with important information that the public had a right to know.

I find this interesting, because in this Apple case, does the public have a "right" to know what Apple's engineering secrets are. I think you all know the answer. No.

rjlawrencejr
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02/04, 04:04pm | report spam | close Reply |
What Right?

Even if the information in question had be acquired legally (such as acidentally revealed, etc), the public doesn't have RIGHT to know. I don't recall Apple's introduction of the Mini to be a public health or safety issue. Sure, I want to know what coming down the pipeline too. But not knowing about future products will be an endangerment to my life.

Besides, if this young man really thought he was doing something above board, why use the pseudonym? I know there might be exceptions (say with an editorialist like Robert X. Cringely or a Dear Abby), but I don't think it is common practice for journalists to publish under assumed names, is it?

Gabriel Morales

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02/04, 05:41pm | report spam | close Reply | delete
Not Right...

I'm sorry, but legality aside, I feel this is wrong. It seems to me ThinkSecret has done more to fuel excitement and interest in Apple products than it has actually caused Apple damages. And I don't think Apple suing a 19 year old guy is good for Apple's image, either. Certainly doesn't make me think any better of Apple.

lurkerdude
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02/04, 06:44pm | report spam | close Reply |
Fox News

As far as I can tell, Fox doesn't have a conservative bias, so much as it has a Republican bias, which is far worse IMO. The conservatives that are on CNN are actually far better at displaying independence of thought (except for Kate O'Beirne, she's worthless). In fact, even Pat Robertson's TV shows are better than Fox in this regard.

The best thing about Fox is that they have great focus on US politics, even if it does go through the Republican filter. Sometimes I turn on CNN and MSNBC and shake my head at the type of programming they put up there. And Fox does have at least one straight-shooting show, Fox News Watch.

The worst thing about Fox is not the Republican nature of it, it's the tabloid-y, sensationalist sheen they put out there. It's like watching OJ's Bronco 24/7. That's why someone like liberal Geraldo fits into that network just as easily as O'Reilly or Oliver North.

The worst thing about all these news networks is that they are really talk show networks. Competition results in a better product, but the product has changed from news to entertainment. At least CNN still has the Headline News channel.

Uh, what was the topic again? Oh yeah -- Go Nick!

filmcub
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02/04, 06:50pm | report spam | close Reply |
Age?

Why does Nick's age keep popping up? He is an adult by our standards, and should be treated as one. I know he is young, and therefore not as knowledgable as some, but that doesn't mean it should change your opinion. I keep hearing people say that they think badly of Apple for suing a 19 yo. Why? If he was 32, you would feel different? If a 19 yo robbed a liquor store, does it make it any less of a crime? He knew what he was doing, if it is found to be illegal, then he should pay the consequences. And if that is the case, he will grow up a lot faster :)

Gabriel Morales

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02/04, 07:30pm | report spam | close Reply | delete
Age

Yes, he is an adult. But, realize that even at 18, you don't have full rights. Many colleges, for instance, ask for a parent co-signer if the student is not over 24 or so. You can't rent from many car rental companies (at least, without paying a substantial "insurance") if your not over 24 or so as well, and the list goes on and on. You can't even drink in the U.S. at 18! So, yeah, you're an "adult" with supposedly all the responsibilities that entails, but unequal rights. And, yes, I would say that there's a difference between a 19 year old and a 32 year old robbing a liquor store (which, has nothing to do with this case, of course).

But, I believe every case should be treated independently, all the factors weighed. (Zero Tolerance Laws --> Zero Intelligence, Zero Mercy, Zero Justice) Nick's disposition and reason for running ThinkSecret might change my mind one way or another. Is he running ThinkSecret for a love of the Mac and the community or just to make money and s**** Apple? Granted, this does not change the legality of the issue, but it does influence my opinion of this case, and its moral ramifications.

ZinkDifferent
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02/04, 09:12pm | report spam | close Reply |
Nicks Motives....

I think Nick was running ThinkSecret (remember, he's been doing it since he was 13 or something like that) is most likely because it's 'cool' to have a site where you leak secrets that people share with you - and he probably also made a small amount of $$$ from running the site and the adverts on it.

Those two things combined will make it pretty difficult to claim that he didn't know that the information he acquired was done unlawfully (by violation of NDA), and the $$$ aspect will make it difficult to claim that it was for pure fun.

In fact, as some income was derive from his activities, it makes it very easy to claim criminal intent, as one can claim he was doing it to enrich himself.

At the end of the day, Nick cant really claim the title of 'journalist', as he failed that on many fronts, and it appears that his lawyer will have to suffer an indignant defeat in this case.

Nick's best bet to make this all go away is to have his lawyer contact Apple, propose to reveal his sources confidentially, and have Apple drop the case against him in return. This will happen, just wait and see.

ZinkDifferent

abe2
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02/04, 09:33pm | report spam | close Reply |
I agree

Why would a legitimate journalist (which this so-called lawyer is calling the defendant) use a pseudonym?

Oase
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02/05, 12:08am | report spam | close Reply |
Lots to consider....

We know Nick published information about the Mac Mini before it was publicly released. We or no one but Nick knows the source or his information.

I personally don't know if Apple has a none disclosure agreement because I have never seen it. I have never seen Apple's list of job desciptions that must sign their NDA. I would assume that in the USA hundreds of millions are like me not knowledgable about the inner workings of Apple.

I do not know if Apple's NDA is fully enforcable in a court of law. Apple may not have had their NDA tested by the court system so they may not know either.

OK so Apple wants to know how Nick got the information. Without that key piece, how he got the information, we would have to be assuming facts not in evidence about the influence of Apple's NDA possibly questionable NDA. If the NDA has never been tested then Apple's NDA would need to pass the test of the legal system to see if it is even enforcable. Then Apple needs to prove Nick broke the law. Prove is the operative word. Can a person be required to incrimminate themselves? Seems like a timing problem to me. Without Nick's information on the source, Apple maybe required to find the source of the information and then prove the connection to Nick and then, if their NDA stands up, prove Nick is covered by a contract he has neither seen or signed.

Love Canal had company secrets and NDA's. So have some of the corporations involved in the recent rash of corporate scandals.

There is indeed a lot to be considered before we even start down freedom of speech path.

just a poster
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02/06, 10:55pm | report spam | close Reply |
Is everyone who writes on

the internet now considered a "journalist"?

I know some stuff about medicine, but that doesn't entitle me to practice as a doctor without getting a license first.

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Lawyer for Ciarelli seeks to dismiss case

updated 10:40 am EST, Fri February 4, 2005

Lawyer dismissal of case

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First Amendment??

I agree!!

let the Court decide

Mac cultists...

I love Macs.

Free Speech?...My Arse

Bitter

@marzetta7

RE: I love Macs

See this:

To Marzetta7

To Marzetta7

RE: I love Macs

Shut up Jonathan-Tanya

"liberal media"

The Law...

what the heck

(sigh!)

witness the slow march

He's not a journalist.

Re: witness..

The Eddie Haskell Defense

okay...

RE: what the heck

What Right?

Not Right...

Fox News

Age?

Age

Nicks Motives....

I agree

Lots to consider....

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