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Think Secret goes on offensive, asks to have Apple lawsuit dismissed

March 4, 2005 - PRESS RELEASE: The dePlume Organization LLC, owner of Mac news Web site Think Secret, today filed a special motion to have Apple's lawsuit against the site dismissed on First Amendment grounds.

Court filings from Think Secret's response to the suit are available here for download in PDF format.

"Apple's lawsuit is a affront to the First Amendment, and an attempt to use Apple's economic power to intimidate small journalists," Think Secret says in the court filings. "If a publication such as the New York Times had published such information, it would be called good journalism; Apple never would have considered a lawsuit."

Think Secret's special motion to dismiss the complaint was filed in California Superior Court, Santa Clara County under the California Anti-SLAPP Statute, a law designed to stem meritless lawsuits that attempt to chill valid constitutional exercises of freedom of speech.

The response emphasizes that the dePlume Organization is engaged in journalism and the articles challenged in Apple's suit contained newsworthy information. Under the First Amendment, a journalist cannot be held liable for trade secret misappropriation or inducing breach of contract for publishing newsworthy information lawfully obtained, Think Secret says in the court filings.

The court filings also say that the information published is not entitled to trade secret protection under the law as it already had been publicly disclosed and had no economic value in the short time between Think Secret's publication and Apple's press releases. In addition, the articles challenged by Apple did not disclose source code or similar technical information.

Think Secret's motion also emphasizes that Apple's sole allegations of alleged improper activity are that Think Secret offered anonymity to some sources, and Think Secret's Web site accepts news tips -- both accepted methods used by traditional journalists. The dePlume Organization did not sell the alleged trade secret information or pay Apple employees to disclose information.

Declarations were submitted from prominent journalism experts Professor Thomas Goldstein and Dan Gillmor, demonstrating how Apple's lawsuit violates the First Amendment. Goldstein is the Director of the Mass Communications Program at the University of California at Berkeley as well as former Dean of the Graduate School of Journalism at Columbia University and reporter for the New York Times. Gillmor, who specializes in technology issues, is founder of Grassroots Media, author of We The Media: Grassroots Journalism by the People, for the People, and former technology columnist for the San Jose Mercury News.

Apple filed suit against the dePlume Organization LLC and Think Secret's editor on January 4. Apple's lawsuit is intended to shutter the news reporting efforts of a Web site that since 1998 has been the Internet's top source for news scoops about Apple and the Mac.

(Note: Apple's lawsuit against Think Secret is a separate action from its "John Doe" suit; in the Doe suit Apple did not sue any journalists, but instead sought information through subpoenas to three Mac news Web sites, including Think Secret, concerning a product called "Asteroid." Think Secret has done no original reporting on Asteroid. In contrast, Apple's lawsuit against the dePlume Organization seeks damages from Think Secret, a news organization.)

Think Secret is represented by Terry Gross of Gross & Belsky LLP, a lawyer who has been at the center of Internet law since the early days of the net. His San Francisco-based general practice, public interest law firm engages in a range of distinctive work, including media, constitutional, and intellectual property law. The Electronic Frontier Foundation, as well as several other civil liberties organizations, was instrumental in helping Think Secret find legal representation.

Court Filings for Download

Memorandum of Points and Authorities in Support of Anti-SLAPP Motion to Strike (3.8MB PDF)

Declaration of Think Secret's Editor (484KB PDF)

Declaration of Professor Thomas Goldstein (1.9MB PDF)

Declaration of Dan Gillmor (1.0MB PDF)

Declaration of Terry Gross (5.3MB PDF)

Confidential Declaration of Terry Gross, Redacted (340KB PDF)

Members of the Media

For more information, contact Terry Gross at Gross & Belsky LLP in San Francisco.

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