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No doubt, counterfeiting deserves policing. And that's a big part of my point: Gawker posting pictures of a prototype iPhone that Apple lost in the wild isn't c

No doubt, counterfeiting deserves policing. And that's a big part of my point: Gawker posting pictures of a prototype iPhone that Apple lost in the wild isn't counterfeiting. Why, then, should REACT give the case such a high priority to the Gawker case -- and use such aggressive measures -- when it could be out dealing with, as you say, the "quarter-billion dollars a year in lost revenue" from counterfeiting? The analogy you give about my firm is close, but let's make it exactly on point. Let's presume I have some major class action against Apple and, weeks before a major brief is due, I leave a copy of it on the train and some intrepid blogger posts the whole thing, thereby giving Apple a window into my strategy. Would this be embarrassing? Of course. Would it prejudice my clients? It could. Would the police care? Of course not. The police would tell me that, if I had a problem with it, I should sue the guy. End of story. And, indeed, as I wrote before, if Apple wants to sort out its legal remedies, there is a civil justice system ready and waiting for it. What's so disturbing here is the aggressive response by criminal law enforcement authorities. If you or me or thousands of other technology companies had complained to the police about an identical incident, we would've been told to seek remedies elsewhere. Apple, however, got the full lawful power of the state and then some in the form of an overly broad and potentially illegal seizure of a journalists' computers. That's a problem, and its one that deserves some degree of explanation from REACT.

anigbrowl 16y ago
Let's presume I have some major class action against Apple and, weeks before a major brief is due, I leave a copy of it on the train and some intrepid blogger posts the whole thing, thereby giving Apple a window into my strategy. Woah, there - let's trace that chain of events a little more closely. The 'intrepid blogger' has publicly offered a reward for any inside information about your suit - and your clients have already demanded that he cease and desist from doing so, because such a reward suborns a breach of confidentiality. Your loss is careless, but the blogger pays someone for your briefcase, unlocks it, and makes public about half the contents, while publicly bragging about the manner in which he obtained it and incidentally mocking you for using public transport. Finally, he demands that your inaugural client in the suit publicly beg for its retrieval, even though he knows where to find you, and also the identity and location of your client. If you or me or thousands of other technology companies had complained to the police about an identical incident, we would've been told to seek remedies elsewhere. How can you say that? There are abundant examples of law enforcement assisting in the recovery or investigation of misappropriated IP resulting in custodial sentences. I mean, take a look at http://www.justice.gov/criminal/cybercrime/ipnews.html http://www.justice.gov/criminal/cybercrime/ipnews.html - There are over 100 trade secret related cases here, from companies both large and small, and many of them concern opportunistic rather than premeditated misappropriation. If I had a Westlaw or L/N account at home I'm sure I could quickly pinpoint many at the state level too.
- MaxwellKennerly 16y ago
  You're putting a couple carts before your horse there. First, you presume there's a trade secret. There's no indication that is correct; all I see is a new soon-to-be-sold product that Apple intentionally let off of its campus and into the wild. Second, you presume Gawker criminally misappropriated or otherwise misused the trade secret. Gawker bought a lost phone. Did they have a duty under California law to seek out its owner? Possibly -- but that's an entirely different question from if they criminally violated trade secrets laws. There's no indication that Gawker had any duty at all to protect Apple's secrets; it's not like Gawker is an employee at Apple. You can't just say that, because a person committed a lesser crime, they necessarily committed all greater conceivable crimes. Same goes for the person who found and sold the phone. Third, you presume the government had probable cause to believe that each of the items seized from Chen had information relating to a crime. Two problems with that: (a) as noted above, it's unclear a crime even was committed and (b) the warrant was patently overbroad, and its doubtful the government had more in mind than a fishing expedition. That's a plain violation of the Fourth Amendment. Fourth, where's the fire? There's no on-going crime here. There's no criminal enterprise. There's an isolated, public incident. So why the high priority? Why the extremely aggressive measures of seizing all of a journalists' computers? Compare and contrast that situation to one of the cases listed on the DOJ website you linked to: "In support of his plea, Mitchell acknowledged that on September 5, 2007, he emailed much of the contents of a DuPont proprietary spreadsheet document entitled “Denier Economics” to an official with Kolon. “Denier” is a term used to describe the weight per unit length (linear density) of a continuous filament or yarn. The Denier Economics spreadsheet contained highly sensitive business trade secret information related to DuPont’s production capacity for Kevlar® yarn in a variety of denier types. Included in the information for each denier type were specific figures relating to annual production, unit capacity, spin speeds, and several factors relating to line efficiency (such as percentage yield and percentage up time). The Denier Economics spreadsheet was closely held and distributed to a small number of DuPont personnel on a need-to-know basis only." Now that's a trade secret, and it's a clear misappropriation of it by someone with a duty to keep it secret. And what did the DOJ do there? Did they start seizing the property of third parties covered by shield laws? No. They slowly started building a case. The exact opposite of what REACT did here. Shoot first, ask later, for high profile crimes is not just the wrong approach, it's unconstitutional and inappropriate. And it demands an explanation.

anigbrowl 16y ago

Let's presume I have some major class action against Apple and, weeks before a major brief is due, I leave a copy of it on the train and some intrepid blogger posts the whole thing, thereby giving Apple a window into my strategy. Woah, there - let's trace that chain of events a little more closely. The 'intrepid blogger' has publicly offered a reward for any inside information about your suit - and your clients have already demanded that he cease and desist from doing so, because such a reward suborns a breach of confidentiality. Your loss is careless, but the blogger pays someone for your briefcase, unlocks it, and makes public about half the contents, while publicly bragging about the manner in which he obtained it and incidentally mocking you for using public transport. Finally, he demands that your inaugural client in the suit publicly beg for its retrieval, even though he knows where to find you, and also the identity and location of your client. If you or me or thousands of other technology companies had complained to the police about an identical incident, we would've been told to seek remedies elsewhere. How can you say that? There are abundant examples of law enforcement assisting in the recovery or investigation of misappropriated IP resulting in custodial sentences. I mean, take a look at http://www.justice.gov/criminal/cybercrime/ipnews.html http://www.justice.gov/criminal/cybercrime/ipnews.html - There are over 100 trade secret related cases here, from companies both large and small, and many of them concern opportunistic rather than premeditated misappropriation. If I had a Westlaw or L/N account at home I'm sure I could quickly pinpoint many at the state level too.

MaxwellKennerly 16y ago
You're putting a couple carts before your horse there. First, you presume there's a trade secret. There's no indication that is correct; all I see is a new soon-to-be-sold product that Apple intentionally let off of its campus and into the wild. Second, you presume Gawker criminally misappropriated or otherwise misused the trade secret. Gawker bought a lost phone. Did they have a duty under California law to seek out its owner? Possibly -- but that's an entirely different question from if they criminally violated trade secrets laws. There's no indication that Gawker had any duty at all to protect Apple's secrets; it's not like Gawker is an employee at Apple. You can't just say that, because a person committed a lesser crime, they necessarily committed all greater conceivable crimes. Same goes for the person who found and sold the phone. Third, you presume the government had probable cause to believe that each of the items seized from Chen had information relating to a crime. Two problems with that: (a) as noted above, it's unclear a crime even was committed and (b) the warrant was patently overbroad, and its doubtful the government had more in mind than a fishing expedition. That's a plain violation of the Fourth Amendment. Fourth, where's the fire? There's no on-going crime here. There's no criminal enterprise. There's an isolated, public incident. So why the high priority? Why the extremely aggressive measures of seizing all of a journalists' computers? Compare and contrast that situation to one of the cases listed on the DOJ website you linked to: "In support of his plea, Mitchell acknowledged that on September 5, 2007, he emailed much of the contents of a DuPont proprietary spreadsheet document entitled “Denier Economics” to an official with Kolon. “Denier” is a term used to describe the weight per unit length (linear density) of a continuous filament or yarn. The Denier Economics spreadsheet contained highly sensitive business trade secret information related to DuPont’s production capacity for Kevlar® yarn in a variety of denier types. Included in the information for each denier type were specific figures relating to annual production, unit capacity, spin speeds, and several factors relating to line efficiency (such as percentage yield and percentage up time). The Denier Economics spreadsheet was closely held and distributed to a small number of DuPont personnel on a need-to-know basis only." Now that's a trade secret, and it's a clear misappropriation of it by someone with a duty to keep it secret. And what did the DOJ do there? Did they start seizing the property of third parties covered by shield laws? No. They slowly started building a case. The exact opposite of what REACT did here. Shoot first, ask later, for high profile crimes is not just the wrong approach, it's unconstitutional and inappropriate. And it demands an explanation.