Again, let’s kill this one dead and stomp on it until we’re sure:

“If Think Secret prevails in its legal efforts, NDLs will be dead. No company will be willing to enter into an agreement in which the other party can use the free speech loophole to violate the agreement.”

Apple never entered into a Non-Disclosure Agreement with Think Secret. It entered into an NDA with unknown second parties who breached the agreement to leak a story to Think Secret. Apple has legally enforceable claims against those second parties if it can find out who they are. It has no claims whatever against Think Secret, which never made any agreement not to broadcast whatever information came into its grubby little hands and has not violated any terms that it ever agreed to.

Apple has no right to enforce the terms of a contract on people who never signed it. They are using this suit as an intimidation tactic to try to force Think Secret to disclose the second parties who leaked the information. Since they have no case, this is nothing more than using the force of the law as an implement of bullying. Thank goodness someone is standing up for Think Secret’s right not to be victimized by frivolous legal intimidation.

Brad:

(1) Neither my actions nor my beliefs imply anything about those of “Copyfighters.” I am a reader of Copyfight; I’m not an author here and my beliefs are actually substantially different from those of the people who are. If you want to infer something about “how Copyfighters behave” from issues you have with me, you can do so, but you can hardly expect other people to take htat seriously.

(2) I described you as a priggish busybody because that’s what your comments expressed. There are lots of reasons that people might worry about the intersection of digital technology and 20th century business models for books, film, songs, etc. There may be perfectly good arguments to raise against Gigi Sohn’s claims about how, e.g., the film and music industry have responded to these concerns hurts consumers. But “other people are too cheap and it makes me mad” is not among those concerns and it is not one of those arguments. You might think they’re skinflints; you might think they’re classless or ungrateful to the people who make the things they enjoy possible. That’s fine. But why should you expect anyone else to care about the resentments you nurse on this question? And what in the world has it got to do with whether or not Gigi Sohn is right about consumers’ interests? Merely pointing out that you disagree with her conclusion is not a counter-argument. And claiming that she doesn’t “represent” you as a consumer isn’t either. The question is whether her arguments are cogent or uncogent, not how you feel about other music consumers.

(3) In the follow-up you remark that it might surprise me that many small-time professional copyright holders cheer on the legal actions of industry behemoths. It doesn’t; I’m already well aware of that (I have relatives trying to make their way in the lower end of the music business). That said, I can’t imagine why you think it’s relevant. The fact that someone has a small business rather than a large one is not a sign of moral superiority, and I don’t see any reason to think that the legally-enforced business model of small musicians, authors, etc. would be any more in tune with consumers’ interests than the legally-enforced business model of the big-time money-men who represent the bulkier end of the industry. I may like small independents a lot more than I like sanctimonious corporate money-men, but that doesn’t make a bit of difference to how their use of legal coercion and technological crippling affects me.

(4) As for commercial viability: I’m well aware of how modern sharing technology poses a challenge to the commercial viability of traditional business models of copyright holders, and perhaps especially those without the legal resources to try to take up the issue through the government. The question is what one thinks should be done about it. It’s not that I don’t want small copyright holders’ businesses to be commercially viable; it’s that I don’t care whether they are or not. The world does not owe you or anyone else a living, and those who today try to live as professional copyright holders have had to figure out ways to make do without rigid “intellectual property” protectionism for several thousand years of human history. If the only way to sustain the business model of the late 19th and 20th century is through escalating an already intense regime of legal coercion against consumers, then I can’t see any reason not to let it die.

Brad Hutchings on folks who get their music for free over file-sharing networks: “They are kinda like people who cut in line or cut you off on the freeway.”

The difference, Brad, is that people who cut in line or cut you off on the freeway are annoying because, by being jerks, they interfere with your ability to make use of a shared resource. But whether or not someone downloading an MP3 and paying only for the bandwidth is doing something wrong, what they are doing neither interferes with your ability to enjoy your own music nor endangers your safety. In fact the worst you seem to be able to say about them is this:

‘For example, I am a “consumer” of Apple iTunes. It pisses me off to no end that other “consumers” are too cheap to pony up a few bucks a week for music they enjoy, instead leaching it from P2P networks.’

So other people don’t put their money into the same things that you do. Good Lord what a priggish busybody you are. Haven’t you got anything better to fume about?

Five comments on NDAs, and none of them at all are to the point.

The reason that Apple’s legal brickbats are problematic from a free speech standpoint is not that the First Amendment somehow prohibits contractual NDAs. It doesn’t. But the publishers of ThinkSecret, AppleInsider, and PowerPage never signed an NDA with Apple. They never made any agreement with Apple that they wouldn’t leak any information that comes into their grubby little hands, and they’re under no legally enforceable obligation whatsoever not to do so.

Apple has every right to pursue legal action against people who have breached their contract, but they have no right at all to use legal force against people who never agreed to Apple’s terms in the first place. The legal maneuvering is nothing more than high-powered bullying to try to force innocent third parties to give up their sources when they aren’t under any legal obligation to do so. Copyfight is exactly right to frame this as an issue of corporate bullies attacking protected speech.