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Apple and Snow Leopard take-downs - just say no

It's fun to throw out those D-M-C-A-s...

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On Tuesday evening UK time The Register received a take-down notice from San Francisco lawyers acting on behalf of Apple. Our hosting company, Rackspace, received a similar notice, Apple's beef being that The Register had posted "confidential trade secrets" in our First Look at Snow Leopard.

You will notice that we have not withdrawn the piece in accordance with Apple's requests.

This morning you may also have noted a rush of first looks at Snow Leopard in other publications, from Wired, MacWorld and the Wall Street Journal's Walt Mossberg. Snow Leopard is out tomorrow, not today, but we suspect that Uncle Walt et al will not be hearing from O'Melveny & Myers LLP, and we have our doubts about whether we'll be hearing from them again either.

Apple's case, such as it was on Tuesday, was "that The Register website has posted Apple confidential trade secrets and copyrighted material in an article entitled 'Mac OS X Snow Leopard First Look' located at www.theregister.co.uk/2009/08/25/preview_os_apple_snow_leopard/page5.html." (We suspect it's a goof that the take-down notice only specifies page five, but suppose there's a slim possibility that we'll be getting six more to cover the rest of the article.)

O'Melveny & Myers LLP tells us that they appreciate our interest in Snow Leopard (for which we thank them) but that "the screenshots and descriptions that have been posted in the article are confidential and subject to non-disclosure agreements between Apple and its developers. The dissemination of confidential information knowingly obtained or derived from someone in breach of non-disclosure constitutes trade secret misappropriation. See, e.g., Cal. Civ. Code 3426.1(b)(2)(B)(iii). Some of the screenshots also depict works copyrighted by Apple, and copyright law prohibits the unauthorized display of copyrighted works."

So we've got two things here - first, misappropriation, which depends on us having obtained Snow Leopard from a source or sources that we knew were in breach of a confidentiality agreement, and secondly that the screenshots we took constitute unauthorized display of copyright works. Does that mean Apple is claiming ownership of Andrew Orlowski's daughter (see page seven)? She's certainly a whole lot prettier than he is.

After consultation with m'learned friends we wrote back to O'Melveny & Myers LLP telling them that we do not feel that the material on our site amounts to a trade secret, that confidentiality disappeared once the material became known to the public (it was widely known even prior to the publication of today's reviews), and that Apple would be making it even more known to the public when it launches tomorrow. As for copyright, we proposed a fair dealing defence based on the material being used to review a product that Apple is about to launch. And the copyright claim strikes us as junk anyway.

But as we say, we don't think we're going to hear from them again this time, in which case the whole thing's junk, just another instance of Apple firing off legal threats for reasons of control-freakery. Apple gets to decide who gets what product, when, and when they get to write about it. Meanwhile we're all perfectly entitled to go into a crazed feeding frenzy in the run-up to every single product launch, or not-a-launch, just so long as we don't disturb the carefully choreographed media schedule.

Well screw that. We at The Register are perfectly happy to sign and to comply with NDAs, but we've never had that opportunity with Apple, because as far as we're aware we're consigned to some strange Jobsian hell because of some pronunciation gag. And frankly, even if at some point in the future Apple made an effort to try to like us and co-opt us to its marketing machine, we're not sure there's a spoon long enough for that to be sensible for us.

And if Apple itself isn't going to bother taking its own legals seriously, we're damned if we're prepared to do so. So next time they might as well mean it, or just not bother. ®

The smart choice: opportunity from uncertainty

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