Frosh Sued by Apple Fires Back

By JOSEPH M. TARTAKOFF

Crimson staff writer

A student sued by Apple Computer, Inc. two months ago filed a motion to dismiss the lawsuit Friday, stating that First Amendment protections allowed him to publish information about Apple’s products that the company claims was privileged.

In its Jan. 4 complaint, Apple contended that Nicholas M. Ciarelli ’08 broke the law by soliciting insider tips from anonymous sources and posting the information they provided on his Mac news website, thinksecret.com. Ciarelli accurately reported the arrival of the Mac mini and iLife ’05 software package two weeks before they were introduced at the MacExpo in January.

But in the motion to dismiss the case that Ciarelli filed with the Superior Court of California, County of Santa Clara, Ciarelli argued that he is a journalist and is thus protected by the Bill of Rights.

“A journalist cannot be held liable for trade secret misappropriaton or for inducing breach of contract for publishing newsworthy information lawfully obtained,” the motion stated.

But one legal expert reached yesterday—Harvard Professor of Constitutional Law Richard H. Fallon—said that the law normally “does not distinguish between journalists and other people who publish information.” He said that he did not know the specifics of the case.

Ciarelli, who is also a Crimson editor, referred questions yesterday to his attorney. In a declaration attached to the motion to dismiss the case, however, he said that the articles he posted on his website did not contain trade secrets. He added that the sources of the information were not anonymous.

Terry Gross, a partner at Gross and Belsky, an intellectual property and media law firm in San Francisco that is representing Ciarelli pro bono, said that the Apple lawsuit was “frivolous.”

“The law is overwhelmingly on our side,” he said. “Unless the judge is pro-business, recognizing the First Amendment we should win.”

Gross acknowledged that a California statute—The Uniform Trade Secrets Act—makes it illegal to disclose information if one knows or has reason to know that the information one is disclosing is a trade secret.

But he said that Ciarelli’s First Amendment rights supersede state law.

“Basically even if there’s a statute it doesn’t mean it doesn’t get outweighed by a Constitutional right. [The courts] have to yield when there are first amendment rights involved.”

Apple representatives did not return several calls for comment yesterday. But Apple will have to file briefs by the end of March to prove that its lawsuit is reasonable.

Ciarelli filed the motion to dismiss the lawsuit under California’s Anti-SLAPP Law. The law is an attempt to cut-down on frivolous lawsuits since it forces plaintiffs to prove that “there is a probability that [they] will prevail on the claim” before the suit can proceed.

A hearing on the motion will be held on April 12.

Separately, The New York Times reported on Friday that a judge in California said that he “was leaning toward permitting Apple to issue subpoenas” to three companies, including Think Secret, that Apple alleges illegally released information about a forthcoming Apple product called Asteroid. Apple wants the courts to force the websites to reveal the identities of the sources of trade information.

Think Secret denies on its website that it has any information on the product. A ruling will be issued sometime this week.

—Staff writer Joseph M. Tartakoff can be reached at tartakof@fas.harvard.edu.