Trade Secrets - Apple and Computer Journalists

As much as I think trade secrets are important to the success of a business, Apple's litigating against computer trade publications just does not seem right. Common sense says there is a limit and this case may be the one where a limit has been found. More on that below, after the article from ZDNet.co.uk, Apple trade secret decision delayed:

A California state judge issued a tentative ruling late on Thursday that would give Apple the go-ahead to pursue that information from the Web sites' Internet service provider, but the judge did not issue a final decision at Friday's hearing.

Lawyers for the Electronic Frontier Foundation, which is representing several of the Apple-themed Web sites, say allowing Apple to force the sites to divulge their sources, or forcing the sites' email providers to give up records of their emails, would be deeply destructive to journalists' ability to cover business.

'Apple is saying that trade secrets are an exception to reporters' privileges,' said EFF attorney Kurt Opsahl. 'If trade secrets are an exception, then a business writer should be concerned every time he or she gets a tip in their email box.'

Even apart from Apple's attempts to keep its own product releases under uniquely tight wraps, the case involves far-reaching issues over how much right journalists have to publish private information about businesses, and indeed what journalism itself is in the era of digital media."

The Uniform Trade Secrets Act as adopted by Indiana reads as follows:

IC 24-2-3-3 (a) Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.

The key word is "misappropriation" which is defined as:

"Misappropriation" means:
(1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(2) disclosure or use of a trade secret of another without express or implied consent by a person who:
(A) used improper means to acquire knowledge of the trade secret;
(B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:
(i) derived from or through a person who had utilized improper means to acquire it;
(ii) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(iii) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

In turn. misappropriation requires use of improper means and the statute defines these as:

"Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

To me, this case has the possibility to do not much more than create bad will for Apple even if Apple wins. I cannot think of a single client of mine who wants to pay me for litigation that will hurt them more than losing.