Posted 07:52 PM, February 3, 2005
"They've stolen our interface. We've got to do something." — Steve Jobs in a conference call to Bill Gates about Digital Research's GEM UI, as related by Regis McKenna, then CEO of Regis McKenna, Inc., which served as public relations representative for both Apple and Microsoft
The imbroglio caused by Microsoft using legal threats to get leaks of its upcoming Windows Mobile 2005 OS pulled from Web sites is building.
Beyond the soap opera entertainment value, this—and similar actions by Apple and General Motors—threaten to redefine and curtail journalistic freedom that has been generally accepted practice for 50 years.
As long as business and trade publications have been around, they have speculated about future product releases by the companies they cover, including publishing leaks of early details. Every fall, car magazines print so-called "spy photos" of new models caught either on the open road or on automobile manufacturers' test tracks. It's become a cat-and-mouse game. The magazines snoop around, then the vendors put fake plastic exteriors around parts of the car, then the magazines respond by doing sketches extrapolated from the photos, and so on like a Spy vs. Spy cartoon.
Computer publications used to have their own seasonal kabuki dance, back when product launches centered on the Comdex and CES shows. Now, product introductions are more diffuse, and the newsweaklies (sic) are largely spoon-fed press releases so the competition for scoops has abated. This has opened up the opportunity for enthusiast blogs and other Web sites to satisfy highly involved customers who want to learn the latest rumors about new products they're passionate about.
Companies often get annoyed as the leaks upset their carefully orchestrated plans, where every publication is supposed to release information on the vendors' products when the vendors dictate, in a coordinated wave to build interest—sort of like time-release capsules of hype.
Although FTP is not in the news business, I've worked that area at titles as diverse as InfoWorld, Aviation Week, and Defense Electronics. Over 25 years of technology publishing, I've been threatened many times by vendors. They've threatened to cut off advertising, to get me fired, to punch me out, or to bribe me (alas, not with enough commitment to be worthwhile). You haven't faced the true adrenalin rush of dealing with someone angry about a supposed leak until the call comes from the Pentagon claiming the story was classified. Vendors have even had customers' employees fired for telling us they used competitors' products.
In one of the more amusing cases, AT&T literally bought every copy of Personal Computing off the newsstands across New York City to keep the release of its first personal computer from being seen a couple of days early. Fittingly, this automatically triggered the distribution system to reorder the magazine, thinking it was a hot seller, flooding New York with copies. This became a story of its own, which was entertaining enough to make The Wall Street Journal. If AT&T had sold as many PCs as we did copies of that issue of Personal Computing, it wouldn't have ended up in a fire sale to SBC. When I was at InfoWorld, Steve Jobs had Apple employees stationed near our printing plants in the Midwest to send him copies of our issues as they came off the press. I remember Steve glowering at me during a briefing about an article that had printed that morning, even though I hadn't seen a copy of my own magazine yet.
Enter the Lawyers
But in 25 years, no company has ever claimed that publishing information about their products was theft, to the best of my knowledge. That's what lawyers for Microsoft, Apple, and GM are claiming. Apple is suing www.thinksecret.com for releasing information on the Mac mini and iPod shuffle before Steve Jobs strutted the stage at Macworld. GM sent security guards to one blogger's home to put some muscle behind its threats over leaks of the Z06 Corvette.
There is an important distinction to understand. As best I can determine, in none of these cases is Microsoft, Apple, or GM claiming that it gave the information to the publisher, which in turn committed to nondisclosure agreements, then violated them. Every one of these sites either obtained the information through journalistic research, or as suits the blogging community, by pointing at or copying from one another.
More information has surfaced on Microsoft's successful attempts at legal intimidation. Basically, several sites published brief details and some screen images from Windows Mobile 2005, code-named Magneto. Microsoft then threatened the sites, though letters from lawyers. The intimidation reportedly extended to sites that merely pointed at information on other sites. Not satisfied at censorship, Microsoft then—at least as described on these Web sites—started editing the content, letting some sites continue to publish portions of the content while continuing to prohibit other sites from publishing anything.
I pinged Microsoft to get its side of the story. The response was forthright if still rather worrisome. My questions and the Microsoft response appear at the end of this posting. A Microsoft spokesperson claims this is not a new practice and is not aimed solely at small bloggers. I'm sure the spokesperson is sincere, but again, in 25 years of publishing, during which I've managed literally hundreds of writers and editors and dealt with numerous disagreements on prereleased information, I have never received nor seen such a legal threat. I've checked with friends who have worked at McGraw-Hill, Ziff-Davis, and IDG, none of whom recall hearing of similar legal threats although all those companies have published articles with unauthorized information on future products.
All of the groups threatened in this incident are small Web sites. None that I am aware of is a so-called "real" publisher, and none is large.
Microsoft's comment on "work[ing] with each of the sites ... with varying degrees of cooperation," is equally disturbing. This infers that Microsoft, or any vendor, has the right to dictate what is published about its products, reviewing copy and approving sections. Some people at Microsoft will undoubtedly disagree with my interpretation, but the intent seems clear.
Microsoft is getting results. Content is being pulled or edited to suit Microsoft's dictum. If you hurry, you can still read most of the articles through Google's cached images of expired Web pages. Either Microsoft's lawyers don't know this happens, or sending a letter ordering Google to remove the content requires more corporate cajones than threatening an individual blogger.
We're seeing a pendulum swing toward rapidly increasing intimidation of the press, unseen since the days of the Pentagon Papers. Most of this intimidation centers on topics far more important than whether software supports WiFi or boasts icon tweaks. This is only part of a larger, disturbing trend.
The legal justification for Microsoft's threats seems thin. The lawyers' letters assume the property is stolen by someone who signed an NDA agreement, without providing any evidence of that, then make the logical leap that the publisher therefore can't share the information. Even pawnshops fencing stolen goods get more legal protection than that. The Web sites caved, so it's unlikely we'll see this case tested. But the Apple incident is similar, and because a lawsuit is underway it might furnish a better legal precedent, if it isn't settled out of court soon. The validity of Apple's and thus Microsoft's claim is questioned by this attorney quoted in The Wall Street Journal:
"It will be difficult for Apple to prove that Think Secret's coverage violated its trade secrets," says Robert E. Camors, an intellectual property lawyer at Thelen Reid & Priest LLP in San Jose, Calif. Trade secrets usually deal with the formula behind products—not simply the details about the products' release, he says. Secondly, it would be difficult for an Apple rival to benefit from the news the site has reported. "No competitor can design and market a product in two weeks," he says.
In Microsoft's case, the proprietary information purportedly conveyed in the screen shots is questionable. As comments posted on some blogs put it, "After all these years, we're going to be stuck with a copy of the Palm interface?" More detailed content on Magneto, NCF 2, and ActiveSync 4.0 can be found on Microsoft's own site than in any of the blogs, such as these slides on the German MSDN, starting around slide 60,.
Ironically, Microsoft, Apple, and GM are all seeking to suppress discussion of their products by core groups of enthusiastic users who are instrumental in building grassroots support. That seems self-destructive.
Q: What is the legal justification for telling sites they cannot publish this information?
The photos in question are proprietary to Microsoft and were released illegally. Distribution under these circumstances violates Microsoft's copyright and trade secret rights.
Q: Is it true that Microsoft is allowing some sites, notably Engadget, to continue to post information while still threatening other sites with legal action if they do not pull information?
No. Microsoft has tried to work directly with each of the sites posting the illegal images, with varying degrees of cooperation, and we are at varying stages of our discussions with different sites.
Q: If so, what is the justification for the different treatment?
Q: Does Microsoft see a distinction between posting unauthorized information on blogs and similar content being published in magazines? If so, what is that distinction?
From a legal perspective, there is no difference. The key point is whether the publisher knew or should have known that the information or images were obtained illegally. Of course every situation has the potential to be unique from a legal perspective. Microsoft has no issue with responsible reporting, whether by a blogger or established media. But publishers who intentionally disseminate trade secrets could be liable.
Q: I am not aware of any instance where Microsoft has publicly used legal means to threaten traditional publishing companies in an attempt to quash unfavorable coverage. Does this mark a change in policy and, to rephrase the prior question, is this approach applicable to traditional publishers?
Microsoft is not trying to quash unfavorable coverage. It is simply trying to halt the unlawful dissemination of its proprietary information. This is not a new practice.
Legal Dialog on Dave's iPAQ
Item in first comment below: Microsoft threatens legal repercussions against Dave's iPAQ
Posted by Jim Fawcette @ 07:57 PM, February 03 Here is the dialog from the Dave's iPaq site:
By David Ciccone, posted Friday, Jan. 28th, 2005
I have been putting this article off for many reasons which I would not like to disclose but just recently I thought it was of importance. On January 6th 2005 we posted screenshots of Microsoft's soon to be announced new OS from the site Neowin.net. During this time our site got linked from the famous Slashdot.org website which created a tremendous amount of curiosity from readers who would like to see it. On January 7th I received an email from Microsoft's Internet Antipiracy team requesting I pull the entire story. In the letter enclosed it did state if I did not pull the story there would be legal repercussions involved. Since I wasn't sure if this was a legit document I requested from the attorney's to call me directly. Within one hour I received a call from them telling me that it would be beneficial for me to pull it. After speaking with them I pulled the story from our site.
Over the next week, I had noticed other sites posting the images and story in which I reached out again to Microsoft asking if I could repost the story. It was re-iterated that I do not and that if I were to they would proceed with the next steps. One site that stood up to Microsoft was Engadget.com. Engadget is one of my favorite sites and was following the case through Engadget's communication through his website. Since Engadget has some relationship's within Microsoft he was able to contact Robert Scoble who works at Microsoft was introducing Engadget to the folks in the Mobile group so they could work out whatever their issue article that Engadget cut a deal with Microsoft to keep the story up.
On January 27th I requested to speak directly to Microsoft about my letter in which I was told by the attorney in England he would relay the message and have someone contact me. On January 28th I received a call from one of Microsoft's Attorneys is Redmond, WA explaining to me why the story needed to be pulled. I told her I don't think I have an issue on why the story needed to be pulled but more on how this issue has been handled. Some of my questions were
1) The letter I received was extremely harsh and threatening. It spoke about copyright infringements and distribution of copyrighted software.
Her response was that the letter is a generic letter that probably should have been revised before it was sent out. I was told that they would work on revising this letter since she agreed it was too generic.
2) Why was it ok for Engadget to keep the image and story up?
Her response was that through his conversations with the Windows Mobile group they felt the image he had up was not too compelling and that he could keep it up. I told her that if that is the case then Microsoft is selectively discriminating my site since I do not have a relationship with Microsoft and that if you enforce it for one it has to be enforced for all! Also if it wasn't too compelling why did they send him the letter originally?
3) Why is Microsoft posting PowerPoint presentations on their site with information that unveils Windows Mobile 2005 information. but then threatening my site for posting my story?
Her response was that she wasn't aware of this but wasn't shocked that it could have happened. She would forward this information to the Windows Mobile group for their feedback.
As hopefully all of you can understand I feel very strong about this issue. My site was targeted and threatened to be shutdown with legal repercussions by Microsoft. For the past 5 years this site has done nothing but promote Microsoft's products at my own financial expense! I have spent many hours outside of my fulltime job evangelizing this platform for what? To be threatened and bullied? I don't think so Microsoft! Maybe a good suggestion is to pick up the phone and talk to me first before you threaten my community!
In conclusion Microsoft I would appreciate it that someone pickup the phone a contact me directly to resolve this.
Email I received from Microsoft
Demand for Immediate Take-Down: Notice of Infringing Activity
CASE #: 35967
06 January 2005
Dear Sir or Madam,
Microsoft has received information that the domain listed above, which appears to be on servers under your control, is offering unlicensed copies of, or is engaged in other unauthorized activities relating to copyrighted computer programs published by Microsoft.
1. Identification of copyrighted works: Windows Mobile 2005 Copyright owner: Microsoft Corporation
2. Copyright infringing material or activity found at the following location(s): http://davesipaq.com/news/004364/windows_mobile_2005_revealed
The above material is being made available at the above location without authorization of the copyright owner.
3. Statement of authority: I hereby certify under penalty of perjury that the information in this notice is accurate and that I am authorized to act on behalf of Microsoft, the owner of the copyright(s) in the work(s) identified above. I have a good faith belief that none of the materials or activities listed above have been authorized by Microsoft, its agents, or the law.
We hereby give notice of these activities to you and request that you take expeditious action to remove or disable access to the material described above, and thereby prevent the illegal reproduction and distribution of this software via your company's network.
We appreciate your cooperation in this matter. Please advise us regarding what actions you take.
on behalf of Microsoft Corporation
One Microsoft Way
Redmond, WA 98052