Friday, October 07, 2005

Reading Between The Lines That Aren't There: How A Delaware Court Ruling May Affect The Outcome Of Apple Litigation Against Rumor Sites

As reported by Slashdot:

Your Rights Online: Court Rules in Favor of Anonymous Blogger
Posted on Friday October 07, @02:35AM

"The Delaware Supreme Court on Wednesday reversed a lower court decision requiring an Internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official. Judge Steele described the Internet as a 'unique democratizing medium unlike anything that has come before,' and said anonymous speech in blogs and chat rooms in some instances can become the modern equivalent of political pamphleteering. 'We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously,' Steele wrote."

I used to love Slashdot, but it was bastradizing the constitution such as this that made me leave - never to post there again.

The comments associated with the post are littered with a few that are trying to relate this to Apple's litigation against rumor sites to divulge information about sources of leaked trade secrets.

I am shocked that a judge would be so cretin in his decision and ruling - eventhough the case actually DOES relate to the protection provided in the constitution. Politcal speech is fully protected under the constitution. This case was about a blogger speaking of a local politician. I am pleased with the decision, but not the reason for the ruling, nor the way it is being construed.

"We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously"

I wasn't aware that that the 1st Ammendment said that. Need proof?

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I don't see a right to speak anonymously.

This ruling, which was applied to political free speech can NOT be remotely tied into Apple's request of the courts to divulge trade secret leaks. Think Secret, AppleInsider, and The PowerPage do not report news of national security, political meaning, or even "need to know".

Trust me, these Apple rumor sites are milking this for all the press they can get. Frankly, it disgusts me.


Anonymous said...

Me too. The EFF continues to embarass itself and lose all credibility.

Anonymous said...

Yeah, but not every piece of information running around Apple Computer is subject to legal protection. First, the information must amount ot a trade secret. A generally accepted definition follows:"Trade secret" means "information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." Second, the trade secret owner has to be damaged by its release.

Looking at the first point, if Steve Jobs is upstaged by a day or two (or even a week or two) by some product announcement, is Apple Computer losing some "formula, pattern, compilation, program, device, method, technique, or process, that derives independent economic value ..."? Perhaps not. Turning to the second point, is Apple Computer hurt by these activities? Probably not as in all liklihood even more people end up watch the Steve due to all the hullabaloo. So the Steve has hurt feelings, but that doesn't count in court. Where are the economic damages and exactly what is the trade secret?

In order to prevail, Apple should have to show that the information is a trade secret and that the company was damaged.

Our right of free speech under the Constitution is not unfretted. The right extends most broadly to political matters, but it is clearly not limited to political matters alone. As you move away from political speech, the government can impose certain restrictions. For example, you can be prosecuted for causing a stampede in a crowded threater by calling out "fire", you can be held liable for defaming someone and you can be held liable for divulging a trade or governmental secret.

Trade secrets are usually things that companies want to keep secret forever. The formula for Coke is a good example of a trade secret. Apple's new product to be divulged later this week simply is not. Does it really affect Apple economically if the information comes out Monday, Tuesday, Wednesday, Thursday or Friday? Obviously not.

FYT said...

The right extends most broadly to political matters, but it is clearly not limited to political matters alone.

Errr .... ummm ... no!

The ONLY thing it protects is political redress - all other forms of speech protection is bastardization of the constitution - besides it says CONGRESS can't pass a NATIONAL LAW for your speech.

It would be impossible for ANY company to prove a rumor or libel actually hurt them, because the other scenario is unknown. That's why the Uniform Trade Secret Act was passed. And just to clarify - by your own definition - everything Think Secret publishes is trade secret!