I really strongly disagree with Trade Secret laws, but unless they are enforced as an exception to freedom of the press they don't seem very useful. Perhaps they're really for the employees who would leak rather than for the reporters who distribute the information, but in that case it's quite hilarious since we also have "whistleblower" laws to protect those leaks which are considered significantly in the public interest. So which is it? Do corporations own their information and deserve special governmental protection of their privacy, or are violations of that privacy which serve the public good excusable?
I think that, clearly, we have to use some amount of common-sense judgment in order to decide that the reporter is innocent while the employee who parleys secrets into a lucrative position with a competitor is a criminal. And yet this sort of judgment call is antithetical to the intended practice of our legal establishment, which is supposed to mostly run through the rote execution of clearly-worded precedent like a Turing machine executing a program. Actually, I suspect that buried somewhere in the legal code (if you can't tell, I'm a programmer not a lawyer) there's an exception which our robe-wearing, gavel-wielding automaton will arrive at in his deliberations. But if there isn't, then it's probably because adherence to the framework of the property metaphor for information kept legislators from creating provisions for cases where the public interest ought to override the content creator's.
They own their own information, but are also responsible for keeping it secret, hence things like NDAs. After all, as the piracy crowd likes to remind us, the government isn't here to guarantee your business model.
Edit: And if you honestly believe our legal system is supposed to be a Turing machine of justice...well, I've got a bridge that's selling cheap...
Aren't the trade secret protection rules an exception?
And thus the cycle is complete.
AngelHedgie and I already went back and fourth on this. Here is the synopsis:
Oldsak: Trade Secret
AngelHedgie: 1st Am.
OS: trade secret is an exception
AH: No it's not
OS: I don't see why not.
AH: 1st Am. trumps trade secret in this case
OS: In that case, but not every case. The facts are different
AH: If courts protect journalists who expose classified documents, then they'll protect those who expose trade secrets.
OS: I don't see why, journalists are given more more when reporting on Government
AH: Well, I don't think Apple has a strong argument
Actually, I think that's probably why programmers have such a hard time getting the legal system - it looks like it should be a purely mechanical system, but it was never meant to be such.
I'm speaking more about how laws ought to be written than how they ought to be read; explaining why on the strength of nothing but faith in the quality of our legislators (why I would have that I have no idea) I expected there to be an exception to trade secret laws which applies in this case. Of course Judges exist because it's quite impossible to actually achieve such a perfectly accurate, rote system, and my reference to a robed automaton was to my proposed idea that someone has accounted for this situation with such a law and therefore the "judgement call" to which I referred is not necessary.
TL;DR I got kind of out on a limb on that hypothetical back there.
They own their own information, but are also responsible for keeping it secret, hence things like NDAs. After all, as the piracy crowd likes to remind us, the government isn't here to guarantee your business model.
True, it is the trade secret holder's responsibility to keep it secret, however CA trade secret law seems to protect in situations where there was improper acquisition of a trade secret or disclosure by mistake.
I don't really know if this whole scenario falls under either of these, but it might.
Aren't the trade secret protection rules an exception?
And thus the cycle is complete.
AngelHedgie and I already went back and fourth on this. Here is the synopsis:
Oldsak: Trade Secret
AngelHedgie: 1st Am.
OS: trade secret is an exception
AH: No it's not
OS: I don't see why not.
AH: 1st Am. trumps trade secret in this case
OS: In that case, but not every case. The facts are different
AH: If courts protect journalists who expose classified documents, then they'll protect those who expose trade secrets.
OS: I don't see why, journalists are given more more when reporting on Government
AH: Well, I don't think Apple has a strong argument
Except you've never made an argument for trade secret law being an exception. You say "well, I don't see why not", and the point is that the courts will always look to side with a free press. It's something encoded in American legal DNA.
Aren't the trade secret protection rules an exception?
And thus the cycle is complete.
AngelHedgie and I already went back and fourth on this. Here is the synopsis:
Oldsak: Trade Secret
AngelHedgie: 1st Am.
OS: trade secret is an exception
AH: No it's not
OS: I don't see why not.
AH: 1st Am. trumps trade secret in this case
OS: In that case, but not every case. The facts are different
AH: If courts protect journalists who expose classified documents, then they'll protect those who expose trade secrets.
OS: I don't see why, journalists are given more more when reporting on Government
AH: Well, I don't think Apple has a strong argument
It did sound familiar. I was honestly asking, though, not posing my point as a question. I don't know whether they're an exception or not. I did a fair amount of reading on the First Amendment for a Title V class, but trade secret stuff didn't enter into what I was reading.
I imagine that trade secret laws are one of the exceptions. Honestly, after reading a lot about the Supreme Court, it's pretty shocking how many rights they'll fuck with based on alien logic. Don't get me wrong: The Supreme Court has done a lot of great things and overall upholds freedom more than not, but those little here-and-there exceptions may not be as rare as some folks on this forum seem to think.
I don't think the issue is one of Gizmodo's right to report on what they found, but more focused on the method of acquisition.
Buying/selling stolen property, which is what the iphone 4g was in this circumstance, is very, extremely, clearly illegal.
yes it is
but the fact that Gizmodo reached out to apple and then returned it is of note here
the story (from Gizmodo's side) is as follows:
Gizmodo was offered an device that might be Apple's or it might not be. They purchased it without being certain. Took a look at it, and after looking determined that it was almost definitely apples (but not absolutely definitely. There was no "return to owner if found" note on it, just an apple logo on a previously unseen device). They checked their sources to see if apple had lost anything similar. found out apple had lost somethign similar. asked a contact to get in touch with apple and tell apple that if this is the device they lost, let gizmodo know,a dn they will return it.
All of that sounds much more resonable than "they bought a hot iphone"
Remember, just because a thing has an Apple logo on it is not absolute proof that it belongs to Apple, or was even manufactured by them:
Except you've never made an argument for trade secret law being an exception. You say "well, I don't see why not", and the point is that the courts will always look to side with a free press. It's something encoded in American legal DNA.
I wouldn't really know for sure until I did some in depth research on the issue.
My point is trade secret is kind of useless if it doesn't apply to press as well.
While courts do like to protect free press, they don't always side with free press. I think courts might be uncomfortable giving journalists free license to steal or purchase stolen trade secrets.
If journalists are essentially immune from trade secret protection, then the first thing any major technology company looking to get an edge should do is purchase a small tech blog and have them devote resources to rooting out and publishing competitors' trade secrets.
Aren't the trade secret protection rules an exception?
And thus the cycle is complete.
AngelHedgie and I already went back and fourth on this. Here is the synopsis:
Oldsak: Trade Secret
AngelHedgie: 1st Am.
OS: trade secret is an exception
AH: No it's not
OS: I don't see why not.
AH: 1st Am. trumps trade secret in this case
OS: In that case, but not every case. The facts are different
AH: If courts protect journalists who expose classified documents, then they'll protect those who expose trade secrets.
OS: I don't see why, journalists are given more more when reporting on Government
AH: Well, I don't think Apple has a strong argument
Except you've never made an argument for trade secret law being an exception. You say "well, I don't see why not", and the point is that the courts will always look to side with a free press. It's something encoded in American legal DNA.
beyond that, there needs to be a REASON WHY it is an exception.
Things are not exceptions because of "why not", that is the wrong direction.
It did sound familiar. I was honestly asking, though, not posing my point as a question. I don't know whether they're an exception or not. I did a fair amount of reading on the First Amendment for a Title V class, but trade secret stuff didn't enter into what I was reading.
I imagine that trade secret laws are one of the exceptions. Honestly, after reading a lot about the Supreme Court, it's pretty shocking how many rights they'll fuck with based on alien logic. Don't get me wrong: The Supreme Court has done a lot of great things and overall upholds freedom more than not, but those little here-and-there exceptions may not be as rare as some folks on this forum seem to think.
Well Copyright and Trademark can both act as exceptions to free press, but those are both supported by constitutional provisions (the IP clause and the commerce clause respectively).
Trade Secret is state law so it's a harder question, but that doesn't necessarily mean it's not an exception.
Copyright and Trademark can both act as exceptions to free press
how so?
copyright is public knowledge (you have to file that stuff), and I have NEVER seen a company try to prevent a story about themselves from being puiblished because it contains a trademarked brandname.
Actually, I think that's probably why programmers have such a hard time getting the legal system - it looks like it should be a purely mechanical system, but it was never meant to be such.
I actually agree with this wholeheartedly, though at the same time I think inasmuch as legislation is supposed to be as clear and complete as it can be (even though it simply cannot always achieve the precision of a program, and expecting this leads to some very silly goosery indeed) programmers have some valuable insights into the construction of good laws.
Copyright and Trademark can both act as exceptions to free press
how so?
copyright is public knowledge (you have to file that stuff), and I have NEVER seen a company try to prevent a story about themselves from being puiblished because it contains a trademarked brandname.
For copyright, the first example that comes to mind is Harper & Row v. Nation Enterprises in which The Nation Magazine published verbatim excerpts from the autobiography of Gerald Ford.
Trademark is trickier to come up with a scenario that works. Reporting on a company using the brandname is obviously fair use under trademark. For now I'll just have to think about it and supplement later.
edit: also i should point out that copyright isn't public knowledge, there's no filing requirement.
Copyright and Trademark can both act as exceptions to free press
how so?
copyright is public knowledge (you have to file that stuff), and I have NEVER seen a company try to prevent a story about themselves from being puiblished because it contains a trademarked brandname.
For copyright, the first example that comes to mind is Harper & Row v. Nation Enterprises in which The Nation Magazine published verbatim excerpts from the autobiography of Gerald Ford.
Trademark is trickier to come up with a scenario that works. Reporting on a company using the brandname is obviously fair use under trademark. For now I'll just have to think about it and supplement later.
edit: also i should point out that copyright isn't public knowledge, there's no filing requirement.
I was thinking patent when you said copyright.
You do have a point there. However, you have to consider WHY that was an issue, namely that The Nation was giving away for free a piece of text that they were intending to sell.
Gizmodo was not giving away for free anything that Apple was looking to sell. If you want to claim damages on Apple's part, you need to be able to show them.
A trade secret is something (information, plans, models, call lists, whatever) that a company tries to keep secret and has value because it is not generally known.
We protect trade secrets because we recognize their value to business (ie a company that develops a valuable trade secret can gain a competitive edge) and we want to discourage corporate espionage as a regular course of business.
Gizmodo has essentially gutted the trade secret value form the iphone prototype. If the features/design of a new product are a secret, Apple gains a competitive edge because competitors will have to wait for the release and then scramble to catch up. An early release of features/design of a product allows competitors to prepare in advance and have a competing product with the same features ready by the release date, if not sooner.
I don't know if Gizmodo actually released enough information such that competitors could actually learn anything valuable. That would be a factual analysis within a trade secret case.
first of all, which piece of information that gizmodo posted is the tradesecret? the formfactor? the front facing camera? Nothing gizmodo posted is shocking or informs the competition of anything new the market hasn't seen before.
secondly, trade secrets are civil matter, not a criminal one
you have to show that harm was done.
Honestly, I don't think anything gizmodo released constitutes trade secrets. I think Apple is just pissed because they are no longer in complete control of the trickle of information.
A trade secret is something (information, plans, models, call lists, whatever) that a company tries to keep secret and has value because it is not generally known.
We protect trade secrets because we recognize their value to business (ie a company that develops a valuable trade secret can gain a competitive edge) and we want to discourage corporate espionage as a regular course of business.
Gizmodo has essentially gutted the trade secret value form the iphone prototype. If the features/design of a new product are a secret, Apple gains a competitive edge because competitors will have to wait for the release and then scramble to catch up. An early release of features/design of a product allows competitors to prepare in advance and have a competing product with the same features ready by the release date, if not sooner.
I don't know if Gizmodo actually released enough information such that competitors could actually learn anything valuable. That would be a factual analysis within a trade secret case.
Gutting the trade secret value from the iPhone prototype would have required that Gizmodo post a drastically more thorough analysis about half a year earlier than they did. As it is, Apple was testing a completed version of the product in the field. For a competitor to glean information leading to a product release ahead of Apple they would have to complete an entire development cycle faster than Apple graduates this beta version.
A trade secret is something (information, plans, models, call lists, whatever) that a company tries to keep secret and has value because it is not generally known.
We protect trade secrets because we recognize their value to business (ie a company that develops a valuable trade secret can gain a competitive edge) and we want to discourage corporate espionage as a regular course of business.
Gizmodo has essentially gutted the trade secret value form the iphone prototype. If the features/design of a new product are a secret, Apple gains a competitive edge because competitors will have to wait for the release and then scramble to catch up. An early release of features/design of a product allows competitors to prepare in advance and have a competing product with the same features ready by the release date, if not sooner.
I don't know if Gizmodo actually released enough information such that competitors could actually learn anything valuable. That would be a factual analysis within a trade secret case.
The problem is that Apple also chose a business model where information about their products is legitimate news in a number of spheres. Why should the press be forced to not report on news that the public wants to know about and that is salient to them? Furthermore, the chilling effect of allowing trade secret law to trump freedom of the press is even worse - a corporation could use trade secret law to hide their misdeeds by calling their practices "trade secrets", then suing any journalist who tries to report on them. (And Apple tried a similar stunt in Does - they tried to claim that their internal investigation procedure was a trade secret, and so the court could not review it. Needless to say, the judge was not amused.)
Finally, the government's obligation is to the people, first and foremost - not the corporations (who only exist thanks to the government.) And a free press serves the people much more than the ability for corporations to use trade secret laws to hide whatever they want. Ultimately, it's not the government's job to cover Apple's business model - they chose one that makes what they call trade secrets news, and they, not the government, need to deal with the fallout from that.
Gutting the trade secret value from the iPhone prototype would have required that Gizmodo post a drastically more thorough analysis about half a year earlier than they did. As it is, Apple was testing a completed version of the product in the field. For a competitor to glean information leading to a product release ahead of Apple they would have to complete an entire development cycle faster than Apple graduates this beta version.
Yeah, I pretty much figured the information posted by Gizmodo is no where near detailed enough to actually reveal any trade secrets Apple might have.
Even if a competitor wouldn't be able to beat Apple to the punch, if Gizmodo had actually revealed something significant, it would have still cut into the amount of time Apple could enjoy exclusivity as a result of being the first one with x significant feature.
Really, the most salient point about functionality is that the new form factor supports a larger, more powerful battery. That's very important from the standpoint of a consumer interested in the iPhone, but completely useless to a rival corporation looking for an edge. If there are trade secrets here, they're in the images of the opened device and I'm not competent to recognize them.
A trade secret is something (information, plans, models, call lists, whatever) that a company tries to keep secret and has value because it is not generally known.
We protect trade secrets because we recognize their value to business (ie a company that develops a valuable trade secret can gain a competitive edge) and we want to discourage corporate espionage as a regular course of business.
Gizmodo has essentially gutted the trade secret value form the iphone prototype. If the features/design of a new product are a secret, Apple gains a competitive edge because competitors will have to wait for the release and then scramble to catch up. An early release of features/design of a product allows competitors to prepare in advance and have a competing product with the same features ready by the release date, if not sooner.
I don't know if Gizmodo actually released enough information such that competitors could actually learn anything valuable. That would be a factual analysis within a trade secret case.
The problem is that Apple also chose a business model where information about their products is legitimate news in a number of spheres. Why should the press be forced to not report on news that the public wants to know about and that is salient to them? Furthermore, the chilling effect of allowing trade secret law to trump freedom of the press is even worse - a corporation could use trade secret law to hide their misdeeds by calling their practices "trade secrets", then suing any journalist who tries to report on them. (And Apple tried a similar stunt in Does - they tried to claim that their internal investigation procedure was a trade secret, and so the court could not review it. Needless to say, the judge was not amused.)
Finally, the government's obligation is to the people, first and foremost - not the corporations (who only exist thanks to the government.) And a free press serves the people much more than the ability for corporations to use trade secret laws to hide whatever they want. Ultimately, it's not the government's job to cover Apple's business model - they chose one that makes what they call trade secrets news, and they, not the government, need to deal with the fallout from that.
I think the intersection between trade secret and free press is pretty interesting and those are all good points why trade secret shouldn't trump free press.
On the other hand, if free press always trumps trade secret, it invites corporations to mask espionage as journalism.
I'd definitely like to explore this another time, but for now I'm going to have to call it quits or I'm never going to finish this paper I'm supposed to be working on.
A trade secret is something (information, plans, models, call lists, whatever) that a company tries to keep secret and has value because it is not generally known.
We protect trade secrets because we recognize their value to business (ie a company that develops a valuable trade secret can gain a competitive edge) and we want to discourage corporate espionage as a regular course of business.
Gizmodo has essentially gutted the trade secret value form the iphone prototype. If the features/design of a new product are a secret, Apple gains a competitive edge because competitors will have to wait for the release and then scramble to catch up. An early release of features/design of a product allows competitors to prepare in advance and have a competing product with the same features ready by the release date, if not sooner.
I don't know if Gizmodo actually released enough information such that competitors could actually learn anything valuable. That would be a factual analysis within a trade secret case.
The problem is that Apple also chose a business model where information about their products is legitimate news in a number of spheres. Why should the press be forced to not report on news that the public wants to know about and that is salient to them? Furthermore, the chilling effect of allowing trade secret law to trump freedom of the press is even worse - a corporation could use trade secret law to hide their misdeeds by calling their practices "trade secrets", then suing any journalist who tries to report on them. (And Apple tried a similar stunt in Does - they tried to claim that their internal investigation procedure was a trade secret, and so the court could not review it. Needless to say, the judge was not amused.)
Finally, the government's obligation is to the people, first and foremost - not the corporations (who only exist thanks to the government.) And a free press serves the people much more than the ability for corporations to use trade secret laws to hide whatever they want. Ultimately, it's not the government's job to cover Apple's business model - they chose one that makes what they call trade secrets news, and they, not the government, need to deal with the fallout from that.
I think the intersection between trade secret and free press is pretty interesting and those are all good points why trade secret shouldn't trump free press.
On the other hand, if free press always trumps trade secret, it invites corporations to mask espionage as journalism.
I'd definitely like to explore this another time, but for now I'm going to have to call it quits or I'm never going to finish this paper I'm supposed to be working on.
the reason why coporations whouldn't uncover tradesecrets to report them is that then ALL of their competitors whould know.
Well the purpose would be to undermine any advantage your competitor has, not necessarily to share in that advantage.
businesses don't function like that. they don't around hoping for each other to fail. They work towards their own success. If they get their hands on trade secrets, they are going to use them to help themselves, not to hurt some one else.
Well the purpose would be to undermine any advantage your competitor has, not necessarily to share in that advantage.
businesses don't function like that. they don't around hoping for each other to fail. They work towards their own success. If they get their hands on trade secrets, they are going to use them to help themselves, not to hurt some one else.
I don't think businesses would risk ruin by using an illegally obtained trade secret.
who knew that the terrifying use of the police as a corporation's personal enforcers could be so hilarious
EDIT: it says something very bad about both my cynicism and my credulity that I didn't immediately recognize that as photoshop. Leaving my flabbergasted response here for hilarity's sake.
Even if they were skeptical when they first got it they still had an idea as to what it was, and even realizing what they had when they did get it still fits into that act I quoted earlier:
"Misappropriation is the wrongful acquisition, disclosure or use of a trade secret, which is defined as a) acquiring the secret through improper means or from another person knowing that they acquired the secret by improper means or b) disclosing or using the secret without consent when the circumstances create a duty not to disclose or use it. Under the Act these circumstances exist when the trade secret has been acquired:"
They still acquired it through improper means (purchasing stolen property), and still chose to disclose / use it without consent when they were in circumstances that created a duty not to.
Okay, so what? It is a civil manner, not a criminal one.
What information, exactly, is the trade secret, by the way? the fact that the phone has a forward facing camera? the new design?
What are the actual damages to Apple, out of all of this?
Just because it's not earth shattering information doesn't mean it couldn't be considered a trade secret. The fact that it was an undisclosed prototype is enough to consider everything about it a trade secret imo. I bet what's in Coke's formula isn't anything surprising yet it is still considered a trade secret.
As for damages, that's more of an abstract thing that is tough to quantify at the moment. I don't know what sort of effect on Apple's stock this had, but now that their competitors know what will be in the next phone they can adjust their plans accordingly (starting now instead of having to wait til the new iPhone comes out) which could have an impact on Apple's sales and profits.
No less an authority than a California appeals court has ruled that the state's shield law does not prevent reporters from being forced, under penalty of contempt, to testify about criminal activity, if they're believed to be involved in it.
California law does not prevent "newspersons from testifying about criminal activity in which they have participated or which they have observed," the court ruled in a 1975 case involving the Fresno Bee.
Eugene Volokh, a professor at the University of California at Los Angeles who teaches First Amendment law, says that court decision--the case is called Rosato v. Superior Court (PDF)--means that California's state shield law "wouldn't apply to subpoenas or searches for evidence of such criminal activity."
Translated: If Gizmodo editors are, in fact, a target of a criminal probe into the possession or purchase of stolen property, the search warrant served on editor Jason Chen on Friday appears valid. A blog post at NYTimes.com on Monday, citing unnamed law enforcement officials, said charges could be filed against the buyer of the prototype 4G phone--meaning Gizmodo.
So, basically what every sane person here has been saying for days
If the $5000 bounty hadn't been disclosed they'd be in the clear, but that's going to be a tough rap to beat. The defense will probably focus on the fact that Chen did not know he was dealing with a genuine piece of Apple property until after opening the chassis of the device, and he complied instantly when Apple requested it back. But man, paying 5 g's for the thing is just sleazy as hell.
No less an authority than a California appeals court has ruled that the state's shield law does not prevent reporters from being forced, under penalty of contempt, to testify about criminal activity, if they're believed to be involved in it.
California law does not prevent "newspersons from testifying about criminal activity in which they have participated or which they have observed," the court ruled in a 1975 case involving the Fresno Bee.
Eugene Volokh, a professor at the University of California at Los Angeles who teaches First Amendment law, says that court decision--the case is called Rosato v. Superior Court (PDF)--means that California's state shield law "wouldn't apply to subpoenas or searches for evidence of such criminal activity."
Translated: If Gizmodo editors are, in fact, a target of a criminal probe into the possession or purchase of stolen property, the search warrant served on editor Jason Chen on Friday appears valid. A blog post at NYTimes.com on Monday, citing unnamed law enforcement officials, said charges could be filed against the buyer of the prototype 4G phone--meaning Gizmodo.
So, basically what every sane person here has been saying for days
The Hell am I going to do with all this meth for my kids on meth story?
Posts
They own their own information, but are also responsible for keeping it secret, hence things like NDAs. After all, as the piracy crowd likes to remind us, the government isn't here to guarantee your business model.
Edit: And if you honestly believe our legal system is supposed to be a Turing machine of justice...well, I've got a bridge that's selling cheap...
The human element is at the heart of a just legal system.
And thus the cycle is complete.
AngelHedgie and I already went back and fourth on this. Here is the synopsis:
Oldsak: Trade Secret
AngelHedgie: 1st Am.
OS: trade secret is an exception
AH: No it's not
OS: I don't see why not.
AH: 1st Am. trumps trade secret in this case
OS: In that case, but not every case. The facts are different
AH: If courts protect journalists who expose classified documents, then they'll protect those who expose trade secrets.
OS: I don't see why, journalists are given more more when reporting on Government
AH: Well, I don't think Apple has a strong argument
TL;DR I got kind of out on a limb on that hypothetical back there.
True, it is the trade secret holder's responsibility to keep it secret, however CA trade secret law seems to protect in situations where there was improper acquisition of a trade secret or disclosure by mistake.
I don't really know if this whole scenario falls under either of these, but it might.
Buying/selling stolen property, which is what the iphone 4g was in this circumstance, is very, extremely, clearly illegal.
Except you've never made an argument for trade secret law being an exception. You say "well, I don't see why not", and the point is that the courts will always look to side with a free press. It's something encoded in American legal DNA.
It did sound familiar. I was honestly asking, though, not posing my point as a question. I don't know whether they're an exception or not. I did a fair amount of reading on the First Amendment for a Title V class, but trade secret stuff didn't enter into what I was reading.
I imagine that trade secret laws are one of the exceptions. Honestly, after reading a lot about the Supreme Court, it's pretty shocking how many rights they'll fuck with based on alien logic. Don't get me wrong: The Supreme Court has done a lot of great things and overall upholds freedom more than not, but those little here-and-there exceptions may not be as rare as some folks on this forum seem to think.
yes it is
but the fact that Gizmodo reached out to apple and then returned it is of note here
the story (from Gizmodo's side) is as follows:
Gizmodo was offered an device that might be Apple's or it might not be. They purchased it without being certain. Took a look at it, and after looking determined that it was almost definitely apples (but not absolutely definitely. There was no "return to owner if found" note on it, just an apple logo on a previously unseen device). They checked their sources to see if apple had lost anything similar. found out apple had lost somethign similar. asked a contact to get in touch with apple and tell apple that if this is the device they lost, let gizmodo know,a dn they will return it.
All of that sounds much more resonable than "they bought a hot iphone"
Remember, just because a thing has an Apple logo on it is not absolute proof that it belongs to Apple, or was even manufactured by them:
I wouldn't really know for sure until I did some in depth research on the issue.
My point is trade secret is kind of useless if it doesn't apply to press as well.
While courts do like to protect free press, they don't always side with free press. I think courts might be uncomfortable giving journalists free license to steal or purchase stolen trade secrets.
If journalists are essentially immune from trade secret protection, then the first thing any major technology company looking to get an edge should do is purchase a small tech blog and have them devote resources to rooting out and publishing competitors' trade secrets.
beyond that, there needs to be a REASON WHY it is an exception.
Things are not exceptions because of "why not", that is the wrong direction.
Well Copyright and Trademark can both act as exceptions to free press, but those are both supported by constitutional provisions (the IP clause and the commerce clause respectively).
Trade Secret is state law so it's a harder question, but that doesn't necessarily mean it's not an exception.
how so?
copyright is public knowledge (you have to file that stuff), and I have NEVER seen a company try to prevent a story about themselves from being puiblished because it contains a trademarked brandname.
I actually agree with this wholeheartedly, though at the same time I think inasmuch as legislation is supposed to be as clear and complete as it can be (even though it simply cannot always achieve the precision of a program, and expecting this leads to some very silly goosery indeed) programmers have some valuable insights into the construction of good laws.
For copyright, the first example that comes to mind is Harper & Row v. Nation Enterprises in which The Nation Magazine published verbatim excerpts from the autobiography of Gerald Ford.
Trademark is trickier to come up with a scenario that works. Reporting on a company using the brandname is obviously fair use under trademark. For now I'll just have to think about it and supplement later.
edit: also i should point out that copyright isn't public knowledge, there's no filing requirement.
I was thinking patent when you said copyright.
You do have a point there. However, you have to consider WHY that was an issue, namely that The Nation was giving away for free a piece of text that they were intending to sell.
Gizmodo was not giving away for free anything that Apple was looking to sell. If you want to claim damages on Apple's part, you need to be able to show them.
We protect trade secrets because we recognize their value to business (ie a company that develops a valuable trade secret can gain a competitive edge) and we want to discourage corporate espionage as a regular course of business.
Gizmodo has essentially gutted the trade secret value form the iphone prototype. If the features/design of a new product are a secret, Apple gains a competitive edge because competitors will have to wait for the release and then scramble to catch up. An early release of features/design of a product allows competitors to prepare in advance and have a competing product with the same features ready by the release date, if not sooner.
I don't know if Gizmodo actually released enough information such that competitors could actually learn anything valuable. That would be a factual analysis within a trade secret case.
secondly, trade secrets are civil matter, not a criminal one
you have to show that harm was done.
Honestly, I don't think anything gizmodo released constitutes trade secrets. I think Apple is just pissed because they are no longer in complete control of the trickle of information.
Gutting the trade secret value from the iPhone prototype would have required that Gizmodo post a drastically more thorough analysis about half a year earlier than they did. As it is, Apple was testing a completed version of the product in the field. For a competitor to glean information leading to a product release ahead of Apple they would have to complete an entire development cycle faster than Apple graduates this beta version.
The problem is that Apple also chose a business model where information about their products is legitimate news in a number of spheres. Why should the press be forced to not report on news that the public wants to know about and that is salient to them? Furthermore, the chilling effect of allowing trade secret law to trump freedom of the press is even worse - a corporation could use trade secret law to hide their misdeeds by calling their practices "trade secrets", then suing any journalist who tries to report on them. (And Apple tried a similar stunt in Does - they tried to claim that their internal investigation procedure was a trade secret, and so the court could not review it. Needless to say, the judge was not amused.)
Finally, the government's obligation is to the people, first and foremost - not the corporations (who only exist thanks to the government.) And a free press serves the people much more than the ability for corporations to use trade secret laws to hide whatever they want. Ultimately, it's not the government's job to cover Apple's business model - they chose one that makes what they call trade secrets news, and they, not the government, need to deal with the fallout from that.
Yeah, I pretty much figured the information posted by Gizmodo is no where near detailed enough to actually reveal any trade secrets Apple might have.
Even if a competitor wouldn't be able to beat Apple to the punch, if Gizmodo had actually revealed something significant, it would have still cut into the amount of time Apple could enjoy exclusivity as a result of being the first one with x significant feature.
they didn't.
we have an actual case sitting in front of us. no need for hypotheticals
I think the intersection between trade secret and free press is pretty interesting and those are all good points why trade secret shouldn't trump free press.
On the other hand, if free press always trumps trade secret, it invites corporations to mask espionage as journalism.
I'd definitely like to explore this another time, but for now I'm going to have to call it quits or I'm never going to finish this paper I'm supposed to be working on.
the reason why coporations whouldn't uncover tradesecrets to report them is that then ALL of their competitors whould know.
To accomplish this would require distributing the information, which has been a sufficient deterrent to those inclined towards corporate espionage.
EDIT: dammit evander wins
businesses don't function like that. they don't around hoping for each other to fail. They work towards their own success. If they get their hands on trade secrets, they are going to use them to help themselves, not to hurt some one else.
I don't think businesses would risk ruin by using an illegally obtained trade secret.
hhahahahahahahaa
who knew that the terrifying use of the police as a corporation's personal enforcers could be so hilarious
EDIT: it says something very bad about both my cynicism and my credulity that I didn't immediately recognize that as photoshop. Leaving my flabbergasted response here for hilarity's sake.
Just because it's not earth shattering information doesn't mean it couldn't be considered a trade secret. The fact that it was an undisclosed prototype is enough to consider everything about it a trade secret imo. I bet what's in Coke's formula isn't anything surprising yet it is still considered a trade secret.
As for damages, that's more of an abstract thing that is tough to quantify at the moment. I don't know what sort of effect on Apple's stock this had, but now that their competitors know what will be in the next phone they can adjust their plans accordingly (starting now instead of having to wait til the new iPhone comes out) which could have an impact on Apple's sales and profits.
Me too. The pixels are showing.
So, basically what every sane person here has been saying for days
The Hell am I going to do with all this meth for my kids on meth story?