Legal threat over Leopard article: how Apple keeps the media on-message

Dan Warne
12 July 2007, 9:05 AM

Apple sure does like to use its lawyers to ensure that the only thing you ever hear about Apple products is exactly what the marketing department wants you to know.

Danny Gorog recently published an article about the upcoming version of OS X, "Leopard". It was wholly positive and talked about small user interface refinements in Leopard.

Early this morning, APC received a letter from Apple's US-based lawyers.

Apple's lawyer wrote that, "the software has been distributed to developers under strict terms of confidentiality that prohibit any dissemination of screenshots or confidential details of its operation. The software is also copyrighted by Apple, and copyright law specifically prohibits unauthorized distribution and displays of copyrighted works. The software contains Apple trade secrets, moreover, the unauthorized dissemination of which is also prohibited by law."

And the lawyer demanded we take the article down.

APC is not bound by any sort of confidentiality agreement with Apple, and we were writing about things like Spaces, Stacks and Leopard's new look that Steve Jobs has demonstrated at length in his recent MacWorld keynote.

Nevertheless, in an effort to reach an amicable resolution we removed the screenshots from the article.

Unfortunately that was not the end of it. Apple's lawyers weren't happy simply with the removal of the screenshots and demanded the removal of the entire article, citing "trade secret misappropriation", a legal concept that exists in the United States but not Australia.

"Apple is prepared to take further legal action," the lawyer threatened.

APC complied with Apple's demands because we didn't want to waste money defending a lawsuit originating in the United States, which could potentially cost a fortune.

Apple knows that, which is why it can get away with making these kinds of demands to media around the world all the time.

Isn't it interesting, though, that Apple takes such offence at a publication like APC writing a completely positive article praising Mac OS X and discussing features that Steve Jobs has already presented on-stage at MacWorld?

Clearly, the message is: to find out more about Mac OS X, go to Apple's website, where you can read about it in gushing, uncritical, Apple marketing speak.

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Duncan E:

Surely your parent company is large enough to stand up to these kind of tactics?

Apple probably thought you were a small time blog rather than a major publisher?

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

tin:

Sounds like Microsoft fired some of their lawyers and Apple picked them up.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Dan Warne:

the interesting thing is that as a journalist, Microsoft is actually an excellent company to deal with. Very helpful, very open. The people at Microsoft Australia are utter legends, quite frankly.

I think Microsoft has learned from the mistakes of its past.

I'm not saying all their products are as good as they could be ... but the people who work there are great.

Apple is kinda the opposite. Great products, vile company to deal with.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Anonymous527896457283:

As a MacBook user I enjoy the experience of using an Apple Computer. I've always purchased my Apples at a retail store at RRP, and I have to say that every shop I've dealt with has provided great customer service. A few times I've gone back to the dealer to sort out some warranty issues, and they have stuck their necks out to try and resolve them. More than once have I watched them sweet talk, plead and beg with Apple Australia at the end of the phone to try and sort things out. I feel the pain with them. I sense that Apple treats its independent dealers the same way it treats the IT press?

I can only recommend, from personal experience, that you support your local Apple reseller if you plan to make a purchase. I doubt I'd get the help I needed if I went through the official Apple Online store.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

jay:

It´s all about principles! They cannot only intervene when a negative article about Leopard is published but not when it is a positive one! How would this look like and how do you think would then the media report about Apple´s methods?

And sorry APC, but what lame excuse is this: "APC is not bound by any sort of confidentiality agreement with Apple...citing "trade secret misappropriation", a legal concept that exists in the United States but not Australia."???!!!

Why are you not bound? How did you get the preview? Illegal?
And don´t you know anything about sofware licence agreements??!

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Dan Warne:

APC does not and has never had a copy of Leopard.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Tilman Winkler:

Do yourself a favour and read the article before rmaking a fuss: It stated that the source of the information had been the key note speech....

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Anonymous2:

Way to roll over guys. Take a stand some time if you consider yourselves journalists.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Nic:

What, and being open about it here, complete with the reasoning on why they took it down isn't taking a stand. Also, I could understand your position if they'd taken down a negative article, but in the scenario I think you're misunderstanding the issue.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Slippery Jim diGriz:

I guess Steve didn't get an invite to the wedding!

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

McBanjo:

I think what high-and-mighty Apple forgets is that APC is owned by PBL which is owned by Australia's richest man, James Packer.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

David Flynn:

Yeah, and I'm sure James Packer would love to see upwards of tens of thousands (if not hundreds?) away in a pointless legal stoush with Apple's litigious lawyers. It's not as simple as it looks on the outside...

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Anonymous5432678:

dosent some other guy now control pbl. i thought james spent all his money on gambling

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

old_misery:

Perhaps the reason for this is the copy of Leopard you used was not intended for public review? Still, they didn't have to jump down your throats like that. Google is still hosting a cache of the original article, and I've Scrapbooked it, de-Googlified it, and uploaded it to my bur.st account, just to spite Apple. :) This has actually influenced my future Apple-purchasing potential.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

James:

I agree that Apple was heavy-handed, but did APC really think they could post bootleg images and trade secrets (even tiny ones) and Apple wouldn't mind? Come on. Apple has a LONG history of going after web sites that do that kind of things.

Rumor and speculation is one thing; posting actual bootleg shots and product details is something else.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Brendan:

Because rounded edges on a menu IS a trade secret :/

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

DB:

Apple's lawyers were perfectly right. The issue is NOT whether or not the views or reviews were positive. There was an NDA! Furthermore, there were items mentioned in the article that were not even disclosed in Steve's keynote at WWDC. Come on people, wake up!

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Dan Warne:

There was not an NDA with APC.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Moh:

There was definately an NDA with your source for the screenshots and other info in the article. Its irrelevant whether the NDA was with you or your source.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Dan Warne:

From a legal perspective, it's ENTIRELY relevant!

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Anon-E-Mouse:

Dan, I hate to tell you this, but from a legal perspective it IS ENTIRELY IRRELLEVANT that you did not sign an NDA. You may recall an instance in the Australian media recently between Channel 7 and the AFL, where Channel 7 gained access to confidential information regarding some AFL players and the legal battle that ensued with Channel 7 losing the case.

I understand that there are differences in these cases, yet they do have one major similarity: both are confidential. One of them was protected by doctor-patient confidentiallity laws, and the other by a legally binding NDA.

In both cases, the source that published the information was not bound by the confidentiallity laws.

So before you continue to bitch and moan about not being permitted to publish the article, ask yourself this simple question: "How good are your lawyers?" Because all Apple would be required to do is point out the precendent set byt the Channel 7 Vs AFL case.

I am now already sick of this diatribe, so I will just let you think it over.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

sxy kitten:

I read the original article upon release and was barely into it before I knew most of the stuff in it was covered under my NDA. I'm surprised it took this long for Apple to contact you.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

oz:

Apple's lawyers were perfectly right. The issue is NOT whether or not the views or reviews were positive. There was an NDA! Furthermore, there WERE items mentioned in the article that were neither disclosed in Steve's keynote at WWDC nor posted at Apple's website. Come on people, wake up!

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

josh :

Nice ballyhoo!

Beet those drums. You forget the fact that Apple, Microsoft, and every other software company for that matter is required to "do diligence" in protecting their intellectual property.

This means even though it was a favorable article it was using copywrited material not for distribution to the public and software under non disclosure agreements.

By your arguments (or rant) I can now copy any APC magazine articles and post them without permission on my website. Thanks, I'll be pulling your archives shortly for posting on my site. I'll mention I got them from your site so don't worry... (kidding, don't send you lawyers)!

The fact is that unfortunately to some (me included), everyone, even a high profile company like APC needs permission to write in detail about software that is under nondisclosure and copywrite. Sorry your feelings were hurt.

Cheers,
-josh

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

flint:

What is it about NDA that you do not understand. The details, disclosed by Apple at WWDC, of Leopard features were under the NDA you agreed to whilst you were there. If you were not there and obtained screen shots from either Apple(s) site or some other source then you are still covered by the NDA which covers the period between release of the features and the software.
You knew that, which is why you took down the screenshots. That you then criticise Apple for your unprincipled behaviour shows what a 2 bit outfit you really are.
You got found out - why not admit it? that's the way to win friends for the future. All this just sounds like whining and wingeing.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

manettas:

I agree with some other comments here: I'm shocked you guys have just let Apple bully you into running up a white flag. It's not as if you're bloggers who can't afford to defend yourselves against Jobs' legal thuggery - you're Australia's biggest magazine and website publisher. Is the dollar so important to you that you will let Apple do this to you? As for Apple, if this is how they treat the media (who can put up some sort of fight should they choose to) what contempt do they reserve for ordinary users?

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

typical apple:

what a freak'en joke.. tell those apple scums to run back the their secret underground volcano lair with there iswivel chairs... ha ha its typical apple.. i just love there Dependant tests totally rigded.. if you've broken no law why give up.. fight for your right

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Digg Me Down:

I run a Mac website, and let me tell you: The Apple PR people are more anal retentive than people in the Air Force. They never help us Mac webmasters. In fact, they go out of their way to make our lives as difficult as possible. There need to be more stories like this.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

JB:

Think about it? Why would Apple spend so much effort try to suppress this type of review?

The reality is that Apple has demonstrated that controlling the public's access to information about unreleased products has been an incredibly successful business strategy. We're all dying to know about Leopard, and that curiousity just heightens the buzz.

Furthermore, in the legal world, that which is not vigorously protected will soon be lost.

This is a rational course of action by a publicly owned company.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Tim Yu:

Quote: "Perhaps the reason for this is the copy of Leopard you used was not intended for public review?"

Which I would slightly modify: "Perhaps the reason for this is that NO copy of Leopard currently exists that is intended for public review?"

Leopard is only out in beta, folks, for developers who sign a NDA.

IF you based your review on only what Jobs presented in his Keynote, then you'd be within your legal rights.

IF your review described your experience with the beta, you are overstepping those rights, and quit yer crying.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

PB:

The information presented in SJ's WWDC presentation was covered by NDA. You then chose to break that and publish anyway, so Apple asks you to remove the offending article and you bitch and moan about it. If you dont like the NDA then dont attend the keynote.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Dan Warne:

We didn't.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

DoctorOwl:

Having graduated a university unit in Media Law this year, here in Australia you are liable for disclosing information that is confidential. In this case the information is confidential because they claim your source was bound by an agreement, and so you're liable for breaching that confidentiality.

You should be more careful about what you accept in future.

There are various ways to defend breach of confidentiality and one of those is to prove that the information is already public knowledge - so if the software was previously demonstrated in an open environment or published by others you would have a legal leg to stand on.

As for copyright as you haven't copied anything (assuming you took screenshots on a Mac that was licensed to run the software) you are probably fine - it's clear you haven't copied anything but at the same time Australian courts have made some extremely wishy-washy decisions on software look and feel and copyright. You'd have to look at some case law to be confident you could withstand this.

Considering the above I feel you either know more than you're saying about how you obtained the software, or turned over way too lightly without doing proper research into your legal position. Did you consult your legal staff?

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Anonymouse:

wow thanks for that law student.

maybe APC should have asked you to represent them. i'm sure you're alot cheaper than those other pesky overpaid lawyers.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

free writer:

This is distressing news. In the states we are very upset at Apple's tendency to bully publishers and writers. Read this article at yardbird.com: http://tinyurl.com/2oqak8

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Free writer:

That URL should be:

http://www.yardbird.com/what_if_they_gave_a_revolution.htm

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Anonymous222222:

If you had screenshots that weren't actually from Job's video presentation, then you obtained them illegally. And as intelligent journalists, you would, of course, be aware of this. Even if they were given to you by a developer who got them from Apple, this is still illegal. This is not about taking a stand, but about respecting someone else's (Apple's) work product. If I had the text to the next article from APC and posted it on my website before APC got around to it, and if I praised it as being a wonderful upcoming article (but see it here first), tell me you would be anything but rip roaring p*ssed.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

HardMac member:

I confirm Apple Legal Is the darkest face of Apple's company
No please no thanks

Only cease and desist cold-robotic way

They even did succeeded to Piss off a 8 years old kid who wrote letters to them

There is no human response control @ Apple Legal

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Terrin:

I do not see your grievance. Apple signed an agreement with its developers in which they will gain access to the OS, but under the condition not to release details about the OS. You then obtain pictures and features of the OS, and write about it. You may think that is innocent because you wrote positively about the OS. However, the OS is not released yet and things you find positive might get changed or taken out all together. So you're not doing anybody a favor by writing about these things.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Leflyman:

I think you guys may be missing the reason for Apple's C&D notice: Leopard is not publicly available software. It is currently only in the hands of developers who are bound by Non-Disclosure Agreements not to redistribute the software, or share information about it. To be able to have "reviewed" it, you would have had to have acquired review materials through illegitimate/improper means.

Apple is well within its rights to protect its prelaunch operating system-- it's still in development, and may not be feature complete, or even include those particular things you discussed.

Look at it this way: anyone is free to write news about Leopard, based on publicly available sources, such as Steve Jobs presentation, or the Apple web site; but writing a review based on information you gathered from leaks (or based on a copy of the software you acquired illegally) means you've effectively been a party to "corporate espionage" (revealing trade secrets).

Why not just wait until Leopard is released to journalists for review?

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Snarkmeister:

...why is it that Apple gets shot in the foot? Maybe Steve's retiring soon won't be such a bad thing after all. His affinity for lawyers, paranoia and secrecy (and of course his judgement in doing business with AT&T) is increasingly becoming a liability.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Adam Gray:

To all those pathetic souls springing to the defence of Apple's legal posturings - way go to boys, pass the Kool-Aid.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Anonymous242:

Come on you guys, any company would do this. You violated your agreements or your source did. Like others have said, if you disagree with copyright law then I assume you won't mind if I screen scrape your entire website and post snippets from your articles out of context.

Don't worry gang, it'll be couched in a favorable tone.

The other humor in this is the sheer vitriol some Apple bashers, corporate bashers and just bitter human beings will always peddle in anything related to Apple.

This is a VERY different animal than the case of the 8 year old kid they went after. In this case APC was flat out wrong and they knew it, hence taking it down and "rolling over". Sadly it seems that some members of this company seem to believe that the law doesn't apply to them or want to crank up the hit rate on this site through creating a place where others may support their illegal actions.

Color me unimpressed with such a childish reaction. Instead of fighting it you post a whimper here obscuring the real issues again. Edward R. Morrow is spinning today.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Tim Yu:

Adam Gray wrote:
"nyaah nyaah nyaah" [paraphrased]

Reply:
...and your argument is... ?

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

David Flynn:

A curiously 'pro-Apple' response in terms of observing NDAs (which APC didn't sign), how Apple is protecting its ideas and its copyright and it totally within rights to get legal.

Now, if APC obtained a beta copy of the next version of Windows (not some widely-distributed Beta 2 or Public Preview or such) and ran screenshots and detailed features, and Microsoft's lawyers issued a similar take-down – I wonder if all those posting pro-Apple comments would be as quick to say "Yes, Microsoft is within their rights, they have to protect their intellectual property and you have breached copyright"... or would they all be bleating "Hah, Micro$ux are afraid that we'll see they have yet again ripped off ideas from Apple, they are so lame, what are they afraid of?" and so forth.

I have a feeling there's one rule for Apple and another for Microsoft at play here.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Tim Yu:

Quote: "Now, if APC obtained a beta copy of the next version of Windows...I wonder if all those posting pro-Apple comments would be as quick to say "Yes, Microsoft is within their rights..."

You can stop wondering. If a journalist whined that Microsoft was bullying them, I would indeed reply that Microsoft is within their rights.

Quote: "I have a feeling there's one rule for Apple and another for Microsoft at play here."

A simpler, less-conspiratorial explanation is that there's only one simple, logical rule: that you aren't supposed to publish privileged information. Do you agree with this or not?

Microsoft has nothing to do with this. Why do you assume anyone who defends this action must be a Apple-hugging, Microsoft-hating zealot?

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

raindog:

My how the hippies have evolved. I think this is probably the major reason I want little to do with Apple, the see themselves as orchestrators rather than partners or participators. Seriously they need to get over themselves, as do the legions of fan-boys.

The main reason Windows has become on the nose for so many is has decided to dictate to the marketplace how they will use their PCs. Regardless of the capabilities or usability of any Apple hardware it will not become the logical successor because in the wash-up Apple are just another team paranoid ego maniacs struggling for total control.

All the cries for APC to spend thousands of JP dollars (they are still JP dollars?) in a pointless law suits are laughable. Best bet would be to drop Apple coverage to a bare minimum, the Apple PR types will be begging APC to blanket the pages with with marketing of each new release.

A product that requires the support of threats and staged PR releases is a product unworthy of consideration in my book! Apple is just more of the same, no solutions to be found there.

29 February 2008, 8:31 PM (3 years ago)report abuse Send to a friend

Karl:

Watch out mate, your Windows underpants are showing!

Let me ask you what you would do if you were developing a piece of software and lent it to somebody so they could test the compatability of their applications with it, but then found out that they had told the press all about it before you had a chance of properly releasing it? Would you be happy? What if they had signed a legally binding agreement not to tell anybody else about it? Would you let it ride, like you are suggesting Apple should?

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Dan Warne:

The point is that you would need to go after the person who disclosed the information, not the person who published it.

Unless you're in the USA, where there are crazy trade secrets laws that gag the press as well.

Before you reply, "but there's a reason they're secrets!" consider there's a reason why the press exists too -- and it's certainly not to publish exactly what companies want it to publish.

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

Tim Yu:

So you are admitting you were publishing proprietary information to which you were not supposed to have access?

"Your honor, I know the TV I sold on Ebay was stolen propety... but you need to go after the thief, not me!"

(Perhaps you'd care to share how you obtained access to said software? Did you download one of the illegal copies circulating on the internet? Did you receive it from an anonymous ADC member?)

29 February 2008, 8:45 PM (3 years ago)report abuse Send to a friend

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Legal threat over Leopard article: how Apple keeps the media on-message

Apple sure does like to use its lawyers to ensure that the only thing you ever hear about Apple products is exactly what the marketing department wants you to know.

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