The dePlume Organization LLC, publisher of Apple rumor site Think Secret, has filed a motion in California Superior Court to dismiss a lawsuit filed by Apple alleging the Web site
disclosed confidential information. The motion effectively halts Apple’s case in its tracks until mid-April, when a judge is expected to rule on the motion.
From Think Secret’s lawyer’s perspective, the issue is about the First Amendment, pure and simple. “What Think Secret did is what journalists do all the time,” the organization’s lawyer Terry Gross of Gross & Belsky LLP, told MacCentral. “They ask for information, and if they get it, they publish it.”
Blocking a SLAPP
Think Secret’s motion cites California’s own anti-SLAPP legislation. SLAPP is an acronym for Strategic Lawsuit Against Public Participation. Under California law, defendants can bring motions to dismiss their cases if they believe that the lawsuit has been brought forth to restrict their free speech. Gross said that the burden is now on Apple, Apple must show the judge that they have a reasonable probability of success to prove their allegations against Think Secret.
Gross says there are plenty of precedents to assert his claim that Think Secret was simply exercising its First Amendment rights, dating back to the Pentagon Papers — often cited as a landmark case on freedom of the press.
In 1971, Daniel Ellsberg, an employee of government contractor Rand Corp., obtained a copy of a secret government study documenting the decision-making of the United States military during the Vietnam War. Ellsberg leaked the report to a New York Times reporter.
Both the New York Times and The Washington Post began to publish excerpts from the papers, and the federal government sued both to prevent further publication. A federal appellate court ultimately ruled in the Post’s favor; The Times won a ruling by the Supreme Court.
Based on that and other decisions over the years, Gross said, “I can’t imagine [the motion] is not going to work out.”
No trade secrets here, lawyer claims
Central to Apple’s argument is that Think Secret has engaged in “tortious interference” by coercing individuals who have signed non-disclosure agreements (NDAs) with Apple to reveal what they know by providing methods for them to do that anonymously. That doesn’t hold any water for Think Secret’s attorney.
“Reporters are free to ask for information,” Gross said. “Under the First Amendment a journalist can’t be held liable for information the journalist lawfully obtains.”
Apple’s suit alleges that Think Secret disclosed confidential information about Apple’s Mac mini, iWork software suite, and an update to its iLife suite. Think Secret posted news about those products before they were formally announced at Macworld Conference & Expo in San Francisco this past January. Gross disputes that what Think Secret did was damaging to Apple.
“These weren’t protectable as trade secrets for a number of different reasons,” said Gross. “Most of them had already been disclosed. Apple can’t really show any damage that happened here.”
In paperwork filed to support the motion, Gross notes that various other publications had long hinted that Apple might be producing a low-cost Macintosh, or had published opinion editorial pieces supporting such efforts.
What’s more, Think Secret tipped Apple’s hand only a few weeks before the products were formally announced, said Gross. The specifications weren’t detailed enough or offered far enough in advance for Apple’s competitors to get a leg up on the new offerings — none of this adds up to trade secret misappropriation, as far as Gross is concerned.
“What Apple’s upset about here is that they weren’t able to control the media,” Gross said.