1. Scenario One: no law broken if the Apple employee was in a public place and/or the Times photog was somewhere he was actually authorized to be while taking the picture. If not, then the first law being broken is "trespassing." Assuming there was no trespassing involved, the ethics of it may be questionable to some, but it's really "all bets are off" as far as I am concerned, provided neither party had the intention of breaking or skirting around any law to begin with. if the Apple employee tipped off the Times and said "i'll be walking out the door at 6pm and will have something with me you might be interested in...." well then i think the employee should be flogged in a public square and the Times photog should know better. If the Times was stalking the Apple parking lot with the specific intent to get a shot of something like this - that may be standard procedure, but I personally think it's crossing the line. That makes the Times no better than celebrity stalkerazzi.

Scenario Two: The Apple employee is clearly in the wrong and is culpable. The Times has committed no crime and there is nothing unethical about it. That's simply reporting on an occurrence that you didn't instigate. Whatever conclusions are drawn from that incident are fair game.

In either scenario, if the Times contacts the employee first and suggests that the Apple employee engage in any of the above activities for the benefit of the Times - I think it's pretty clear that both parties are at fault, ethically and legally. The current lawsuit appears to fall into this category, although ultimately I assign more blame to the leakers than I do the bloggers.

Posted at 4:21AM on Dec 19th 2005 by Laurie

2. In the first case, if the reporter and the employee were on public property, the Times has done nothing wrong.

In the second case, ditto.

The employee has violated his NDA in the second case and maybe in the first, but that's between him and Apple.

Posted at 4:21AM on Dec 19th 2005 by Michael Moncur

3. Either way the NY Times will see nothing for it. They have just as many bored lawyers looking for something to do as Apple. When was the last time you heard about the Times getting sued for violating a trademark?

Posted at 4:21AM on Dec 19th 2005 by Jon Gales

4. You hit the head on the nail! There is no clear distinction and what that fine line is.

Posted at 4:21AM on Dec 19th 2005 by Dave Ciccone

5. In the first case the employee seems to have done nothing wrong, stupid maybe, but not wrong. And the Times is welcome to publish whatever they want.

In the second case the Times has still done no wrong, the employee, however, has blatantly broken their NDA.

However, both of these scenarios are different from the recent ThinkSecret issue. Wherein ThinkSecret actively sought to break NDAs, and under California law as, funnily enough reported by the Times, is illegal. I'm simplifying but you get the idea.

But, in the end, all of this is somewhat moot. The problem now is that trade secret laws are murky at best, unwritten at worst. The recent backlash against Apple for suing certain sites is, to my mind, unwarranted. I don't see this as Apple beating up the little guy or the fans. This is Apple doing its best to protect its interests and find the boundaries of law the only way you can in a lawful society, by trying their case.

I'm not saying this as some Apple fan-boy, though I admit to being one, I'm also a ThinkSecret fan. I'm saying this in the same manner I would if this was Sony or Dell or any other company that uses NDA and trade secrets.

Posted at 4:21AM on Dec 19th 2005 by Chris

6. In scenario one, the Times is civilly liable for damages and may be prosecuted criminally.

In scenario two, the act occurs in public, thus automatically exempting press coverage under the First Amendment. However, should the Times add something to the story that wasn't on the website--something provided by an independent party exclusively to the times--then that addition may represent criminal culpability and/or civil liability for the Times.

FYI, from http://tinyurl.com/6nvfr

Quoted-------------------------------------
Trade secrets often protect valuable technical information that cannot be sheltered under other forms of intellectual property law, such as the formula for Coca-Cola. Trade secrets may also:

* protect ideas that offer a business a competitive advantage, thereby enabling a company or individual to get a head start on the competition -- for example, an idea for a new type of product or a new website

* keep competitors from learning that a product or service is under development and from discovering its functional or technical attributes -- for example, how a new software program works

* protect valuable business information such as marketing plans, cost and price information and customer lists -- for example, a company's plans to launch a new product line
protect "negative know-how" -- that is, information you've learned during the course of research and development on what not to do or what does not work optimally -- for example, research revealing that a new type of drug is ineffective, or

* protect any other information that has some value and is not generally known by your competitors -- for example, a list of customers ranked by how profitable their business is

What rights does the owner of a trade secret have?

A trade secret owner can prevent the following groups of people from copying, using and benefiting from its trade secrets or disclosing them to others without permission:

* people who are automatically bound by a duty of confidentiality not to disclose or use trade secret information, including any employee who routinely comes into contact with the employer's trade secrets as part of the employee's job

* people who acquire a trade secret through improper means such as theft, industrial espionage or bribery

* people who knowingly obtain trade secrets from people who have no right to disclose them

* people who learn about a trade secret by accident or mistake, but had reason to know that the information was a protected trade secret, and

[snipped]
-------------------------------------Quoted

There is more information there to provide a lay definition of "trade secret," what it means to most businesses in most states, and how a company must treat information it considers trade secret in order to continue to qualify for trade secret protection of that information.

Quoted-------------------------------------
Intentional theft of trade secrets can constitute a crime under both federal and state laws. The most significant federal law dealing with trade secret theft is the Economic Espionage Act of 1996 (EEA) (18 U.S.C., Sections 1831 to 1839). The EEA gives the U.S. Attorney General sweeping powers to prosecute any person or company involved in trade secret misappropriation and punishes intentional stealing, copying or receiving of trade secrets. Penalties for violations are severe: Individuals may be fined up to $500,000 and corporations up to $5 million. A violator may also be sent to prison for up to ten years. All property used and proceeds derived from the theft can be seized and sold by the government.

[snip]

For example, in California it is a crime to acquire, disclose or use trade secrets without authorization. Violators may be fined up to $5,000, sentenced to up to one year in jail, or both. (Cal. Penal Code Section 499c.)
-------------------------------------Quoted

Posted at 4:21AM on Dec 19th 2005 by Pariah S. Burke

7. Laws broken. In Reality its only the lawyers that care. I think it has more to do with integrity in journalism. I believe it is the responsibility of the reporter to say, "Is this honest?" or "Did I make any effort to see if it was HONEST?" Integrity comes from within.

Posted at 4:21AM on Dec 19th 2005 by Jim Boudreau

8. Right on, Jim. That (and the possible liability) is why big media gets confirmation from a second, independent source before running with anything risky.

Posted at 4:21AM on Dec 19th 2005 by Pariah S. Burke

9. Scenario One: no law broken if the Apple employee was in a public place and/or the Times photog was somewhere he was actually authorized to be while taking the picture. If not, then the first law being broken is "trespassing." Assuming there was no trespassing involved, the ethics of it may be questionable to some, but it's really "all bets are off" as far as I am concerned, provided neither party had the intention of breaking or skirting around any law to begin with. if the Apple employee tipped off the Times and said "i'll be walking out the door at 6pm and will have something with me you might be interested in...." well then i think the employee should be flogged in a public square and the Times photog should know better. If the Times was stalking the Apple parking lot with the specific intent to get a shot of something like this - that may be standard procedure, but I personally think it's crossing the line. That makes the Times no better than celebrity stalkerazzi.

Scenario Two: The Apple employee is clearly in the wrong and is culpable. The Times has committed no crime and there is nothing unethical about it. That's simply reporting on an occurrence that you didn't instigate. Whatever conclusions are drawn from that incident are fair game.

In either scenario, if the Times contacts the employee first and suggests that the Apple employee engage in any of the above activities for the benefit of the Times - I think it's pretty clear that both parties are at fault, ethically and legally. The current lawsuit appears to fall into this category, although ultimately I assign more blame to the leakers than I do the bloggers.

Posted at 4:21AM on Dec 19th 2005 by Laurie

10. In the first case, if the reporter and the employee were on public property, the Times has done nothing wrong.

In the second case, ditto.

The employee has violated his NDA in the second case and maybe in the first, but that's between him and Apple.

Posted at 4:21AM on Dec 19th 2005 by Michael Moncur

11. Either way the NY Times will see nothing for it. They have just as many bored lawyers looking for something to do as Apple. When was the last time you heard about the Times getting sued for violating a trademark?

Posted at 4:21AM on Dec 19th 2005 by Jon Gales

12. You hit the head on the nail! There is no clear distinction and what that fine line is.

Posted at 4:21AM on Dec 19th 2005 by Dave Ciccone

13. In the first case the employee seems to have done nothing wrong, stupid maybe, but not wrong. And the Times is welcome to publish whatever they want.

In the second case the Times has still done no wrong, the employee, however, has blatantly broken their NDA.

However, both of these scenarios are different from the recent ThinkSecret issue. Wherein ThinkSecret actively sought to break NDAs, and under California law as, funnily enough reported by the Times, is illegal. I'm simplifying but you get the idea.

But, in the end, all of this is somewhat moot. The problem now is that trade secret laws are murky at best, unwritten at worst. The recent backlash against Apple for suing certain sites is, to my mind, unwarranted. I don't see this as Apple beating up the little guy or the fans. This is Apple doing its best to protect its interests and find the boundaries of law the only way you can in a lawful society, by trying their case.

I'm not saying this as some Apple fan-boy, though I admit to being one, I'm also a ThinkSecret fan. I'm saying this in the same manner I would if this was Sony or Dell or any other company that uses NDA and trade secrets.

Posted at 4:21AM on Dec 19th 2005 by Chris

14. In scenario one, the Times is civilly liable for damages and may be prosecuted criminally.

In scenario two, the act occurs in public, thus automatically exempting press coverage under the First Amendment. However, should the Times add something to the story that wasn't on the website--something provided by an independent party exclusively to the times--then that addition may represent criminal culpability and/or civil liability for the Times.

FYI, from http://tinyurl.com/6nvfr

Quoted-------------------------------------
Trade secrets often protect valuable technical information that cannot be sheltered under other forms of intellectual property law, such as the formula for Coca-Cola. Trade secrets may also:

* protect ideas that offer a business a competitive advantage, thereby enabling a company or individual to get a head start on the competition -- for example, an idea for a new type of product or a new website

* keep competitors from learning that a product or service is under development and from discovering its functional or technical attributes -- for example, how a new software program works

* protect valuable business information such as marketing plans, cost and price information and customer lists -- for example, a company's plans to launch a new product line
protect "negative know-how" -- that is, information you've learned during the course of research and development on what not to do or what does not work optimally -- for example, research revealing that a new type of drug is ineffective, or

* protect any other information that has some value and is not generally known by your competitors -- for example, a list of customers ranked by how profitable their business is

What rights does the owner of a trade secret have?

A trade secret owner can prevent the following groups of people from copying, using and benefiting from its trade secrets or disclosing them to others without permission:

* people who are automatically bound by a duty of confidentiality not to disclose or use trade secret information, including any employee who routinely comes into contact with the employer's trade secrets as part of the employee's job

* people who acquire a trade secret through improper means such as theft, industrial espionage or bribery

* people who knowingly obtain trade secrets from people who have no right to disclose them

* people who learn about a trade secret by accident or mistake, but had reason to know that the information was a protected trade secret, and

[snipped]
-------------------------------------Quoted

There is more information there to provide a lay definition of "trade secret," what it means to most businesses in most states, and how a company must treat information it considers trade secret in order to continue to qualify for trade secret protection of that information.

Quoted-------------------------------------
Intentional theft of trade secrets can constitute a crime under both federal and state laws. The most significant federal law dealing with trade secret theft is the Economic Espionage Act of 1996 (EEA) (18 U.S.C., Sections 1831 to 1839). The EEA gives the U.S. Attorney General sweeping powers to prosecute any person or company involved in trade secret misappropriation and punishes intentional stealing, copying or receiving of trade secrets. Penalties for violations are severe: Individuals may be fined up to $500,000 and corporations up to $5 million. A violator may also be sent to prison for up to ten years. All property used and proceeds derived from the theft can be seized and sold by the government.

[snip]

For example, in California it is a crime to acquire, disclose or use trade secrets without authorization. Violators may be fined up to $5,000, sentenced to up to one year in jail, or both. (Cal. Penal Code Section 499c.)
-------------------------------------Quoted

Posted at 4:21AM on Dec 19th 2005 by Pariah S. Burke

15. Laws broken. In Reality its only the lawyers that care. I think it has more to do with integrity in journalism. I believe it is the responsibility of the reporter to say, "Is this honest?" or "Did I make any effort to see if it was HONEST?" Integrity comes from within.

Posted at 4:21AM on Dec 19th 2005 by Jim Boudreau

16. Right on, Jim. That (and the possible liability) is why big media gets confirmation from a second, independent source before running with anything risky.

Posted at 4:21AM on Dec 19th 2005 by Pariah S. Burke