Trade Secrets

Many readers are probably familiar with the meltdown of the Santa Barbara News-Press, a local daily newspaper in Santa Barbara, California. Starting in 2006, reporters and editors of the newspaper clashed with now-infamous Wendy McCaw, controlling shareholder of Ampersand Publishing LLC, which owns the paper. Tensions swirled around McCaw's perceived intervention in editorial and reporting judgments, traditionally left to the paper's professional staff. The controversy resulted in a slew of resignations and firings, chronicled in the documentary film, Citizen McCaw. The brouhaha spurred a bizarre lawsuit over copyright infringement, which pitted the News-Press against another local paper, the Santa Barbara Independent. According to the Independent, the defendant in the lawsuit, the case recently settled. While this might come as a relief to the Independent, it leaves a questionable fair use decision on the books.   read more »

Yesterday, I reported that a federal judge in San Francisco had issued a stunningly broad injunction that brought down Wikileaks.org, a site that is developing what it describes as an "uncensorable Wikipedia for untraceable mass document leaking and analysis." (I'll let the prescience of that statement sink in on its own.)

The plaintiffs in the case, a Cayman Islands bank and its Swiss parent company, probably thought they could slip into court in California right before a holiday weekend and silently silence a critic that had made them and their customers look bad. So much for that plan.

First, the banks overreached. They worked out what appears to be a sweetheart deal with Wikileaks' domain name registrar, Dynadot. Even though Dynadot appears to bear no liability for the material at issue, the banks added Dynadot as a defendant in the case. No doubt thinking they had come up with a legal "silver bullet," the banks and Dynadot signed a joint stipulation in which Dynadot agreed to, among other things, "lock" and "disable the wikileaks.org domain name" in exchange for being dismissed from the case (a case in which, it appears, Dynadot bore no liability). To give their stipulation the force of law, the banks slipped an order to the judge, which he promptly signed.   read more »

Last Friday, a federal district court judge in San Francisco issued a stunningly broad injunction that brought down Wikileaks, a site that is developing what it describes as an "uncensorable Wikipedia for untraceable mass document leaking and analysis."

The case was initiated earlier in the week by Julius Baer Bank and Trust Company, a Cayman Islands banking entity, which along with its Swiss parent company filed an ex parte application for a temporary restraining order seeking to enjoin Wikileaks from publishing or distributing copies of documents the plaintiffs claim contain "stolen or otherwise wrongfully obtained confidential and protected bank files and records."

On February 15, 2008, the court issued what it captioned as an "Order Granting Permanent Injunction." This order, which appears to be the result of a stipulation between the plaintiffs and Dynadot, Wikileaks' domain name registrar and web host, required that Dynadot immediately disable the entire Wikileaks.org domain name and account and remove all DNS hosting records.   read more »

TechCrunch is reporting that Apple and Think Secret have settled their longstanding trade secrets dispute. Here's the kicker: under the terms of the agreement, Think Secret will cease operations. Think Secret issued a statement:

Apple and Think Secret have settled their lawsuit, reaching an agreement that results in a positive solution for both sides. As part of the confidential settlement, no sources were revealed and Think Secret will no longer be published. Nick Ciarelli, Think Secret's publisher, said "I'm pleased to have reached this amicable settlement, and will now be able to move forward with my college studies and broader journalistic pursuits."

The case arose out of Think Secret's publication of a report about a number of new Apple products days before MacWorld 2005. Appled sued the blog's operator Nick Ciarelli (aka Nick DePlume) and his company DePlume Organization, LLC for misappropriation of trade secrets in California state court and sought discovery of the identity of Think Secret's confidential sources. Apple's claim was unusual because Ciarelli was not an Apple employee and was not bound by any confidentiality agreement. Apple argued that Ciarelli should nevertheless be held liable because he encouraged leaks of confidential information through an anonymous email system and a voice-mail tip line.   read more »

If it's fall, these must be cease-and-desists for Black Friday ads. This year, they seem to be coming earlier than ever, as Wal-Mart sends pre-notifications against future posting. I put my analysis into a Chilling Effects Weather Report

Meanwhile, Michael Geist has the low-down on the overbroad copyright demand (PDF) that has shuttered the International Music Score Library Project. Despite vetting all submitted music for public domain status in Canada, where he runs the site, the IMSLP operator got a complaint that he was making scores available to jurisdictions where they were still under copyright -- talk about misusing disharmony.

Today, the Chilling Effects Clearinghouse posted a cease-and-desist letter from MediaDefender to gpio.org complaining that MediaDefender's leaked emails had been posted to the site. The operator of the site, which subsequently moved to http://mediadefender-defenders.com (but not because of the letter), also posted the letter and his reply. His reply quite effectively points out that he and his server are in Norway and thus "it appears that your legal grounds for throwing letters at me claiming this-or-that is shaky enough that you might want to relocate."

This exchange reminded me of an article in Ars Technica a few weeks back discussing the reactions of peer-to-peer site operators to similar letters from MediaDefender. I meant to post on this article at the time, but forgot about it until today. The gist of the story is that some peer-to-peer site operators received cease-and-desist letters from MediaDefender and responded with blistering comments ridiculing the MediaDefender lawyers for their impoverished understanding of U.S. copyright law. For example:

[isoHunt's] formal response to SMR&H is filled with caustic wit and considerable legal expertise. "If Mr. Gerber is truly as experienced in IP law as his bio claims he is," asks the isoHunt administrator in his response, "why is it that he is incapable of composing a DMCA takedown notice as per USC Title 17 Section 512?" The isoHunt administrator explains that Gerber failed to adequately specify the allegedly infringing content as required by law. The administrator also helpfully provides a link to a valid sample complaint so that SMR&H will be less likely to send the improper information in their second attempt. The following is an excerpt of the isoHunt administrator's response:

"This e-mail serves as a counter notification under USC Title 17 Section 512(c)(3)(A)(iii) that you have failed to properly identifying links to content that allegedly infringes your copyright/trademark/rights (or, in this case, has something to do with really embarrassing trade secrets *and* employee social security numbers) AND you have failed to address your e-mail to the appropriate agent, namely copyright@isohunt.com, so I invite you and your clients to take a long walk off a short pier, since you and/or your clients might actually manage to NOT get something that simple wrong."

In closing, the isoHunt administrator says that the he will comply with the request if it is properly submitted. "Despite us being located in Canada, if you do actually figure out how to compose a valid DMCA notice, we will honor it," he concedes, "just as soon as we're done laughing at you."   read more »

Well, Dell Computer is learning about the web. See the confession at Consumerist, in which the company admits its mistake in demanding that the site take down a posting about its kiosk sales operation. Some things do change.