[link|http://www.legal-definitions.com/theft.htm|http://www.legal-def...ons.com/theft.htm]

You're throwing around terms that have specific legal definitions and implications, and you're not using them correctly.

[link|http://www.gnu.org/philosophy/not-ipr.xhtml|http://www.gnu.org/p...phy/not-ipr.xhtml]

Disclosing a trade secret you have a duty to protect is misappropriation, not theft. I'm not saying that makes it acceptable, but it's different.

Anyway, I've just done some research. I no longer think this is a clear-cut issue.

• According to [link|http://www.nolo.com/lawcenter/ency/article.cfm/objectid/90781CA8-0ECE-4E38-BF9E29F7A6DA5830/catID/1FBE2D95-203C-4D38-90A2A9A60C6FD618|this] list, California has enacted a version of the [link|http://nsi.org/Library/Espionage/usta.htm|Uniform Trade Secrets Act], but New York has not. Apple is in California, Think Secret is in New York. Apple has filed in California, I expect Think Secret to request a change of venue since their contributory misappropriation, if any, would have taken place on their servers in New York.


• According to the [link|http://nsi.org/Library/Espionage/usta.htm|UTSA]:

  \ufffd2. Injunctive Relief
  
  (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

  I believe trade secret status ceased to exist upon publication.


• Also from the USTA:

  \ufffd3. Damages
  
  (a) Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation renders a monetary recovery inequitable, a complainant is entitled to recover damages for misappropriation. Damages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss.

  I suspect Apple would be hard pressed to prove enrichment due to this specific incidence of misappropriation, if there was any.


• According to [link|http://www.thetso.com/Info/fail.html|this] (admittedly biased) article:

  Defendant must know, or a reasonable man in defendant's position should know, prior to the infringement, that the information owner considers the information a trade secret. The courts have also found that all information in a company's possession cannot be designated to have trade secret status. Failure to differentiate will result in a finding that none of the information has trade secret status.

  And right [link|http://news.com.com/Apple+suit+foreshadows+coming+products/2100-1047_3-5513582.html|here] that's just what Apple is doing.

The more I read about it, the more I believe Think Secret will win this one ... if they can afford to fight it. And that caveat is why I sympathize with classifying this as a SLAPP.

But then I read [link|http://news.com.com/Apple+suit+foreshadows+coming+products+-+page+2/2100-1047_3-5513582-2.html?tag=st.next|the second page] and see this:

The suit points specifically to a posting made after Apple's World Wide Developer Conference in June. "Think Secret's request stated, 'Did you hear something you weren't supposed to at WWDC? We appreciate your insider news and Mac gossip. E-mail us or use our anonymous e-mail form."

And I think, "Damn, they did openly solicit violation of confidence."

In this specific case I think there's even less reason to sue. As several of the articles pointed out, suing Think Secret -- and pointing out which articles contained their trade secrets -- actually confirmed the rumors. It's a rumor site. There is no confirmation of anything that's on it. If a particular rumor seems more believeable than others, it's because it's not disclosing anything a reasonably observant person wouldn't have already predicted.

Any site dedicated to discussing the future direction of a company, whether the source of the discussion is leaks, wishes, educated speculation or complete fantasy, can't be used to competetive advantage. If competitors change their strategy on unconfirmed reports from a rumor/leak site, they will react to false or inaccurate reports, too. If they only react to reports they believe to be credible, based on their own research, then they are setting strategy based on their own research.

To the extent that knowing Apple is planning a headless box represents a true competitive advantage, the lawsuit does more to confirm that report than the report itself. Case in point: I'm not a Mac guy, I don't normally follow Apple. If it had not been for the lawsuit stories, I wouldn't have ever seen the original report.

You can't fault someone for leaking a trade secret if it's not true. You also can't claim you didn't want the information leaked if it was an intentional falsehood designed to identify leaks.

If your characterization is correct, it seems like a decent practice to identify leaks. It seems like a terrible basis for prosecution.

And as for negative reinforcement, the defendant in this case isn't the leak. If they are pursuing litigation as a punishment, that's the very definition of a SLAPP case.