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Lawyer For Harvard Student Battling Apple Will Seek To Dismiss Lawsuit

Logo - TechwebFeb. 3, 2005 | TechWeb.com

By W. David Gardner

A lawyer, who has signed on to represent a Harvard student being sued by Apple Computer, said he will seek to dismiss the case on First Amendment free-speech grounds within two weeks. Attorney Terry Gross, a lawyer prominent in free-speech and Internet issues, said he decided to represent 19-year-old Nick Ciarelli on a pro bono basis after the student said he didn’t have the funds to defend himself against Apple.

“Supreme Court law is pretty clear,” said Gross in an interview. “Journalists can’t be prohibited from publishing material if it’s lawfully obtained. Apple is just trying to intimidate this college kid.”

Ciarelli, who is also an editor at Harvard’s student newspaper, operates a Web site called www.thinksecret.com, which tracks Apple’s activities. He incurred Apple’s wrath by reporting on the firm’s products before Apple announced them formally. On the site, Ciarelli calls himself Nick dePlume.

In its suit against Think Secret, Apple complains that the site “solicited information about unreleased products from . . . individuals who violated their confidentiality agreements with Apple by providing details that were later posted on the Internet.”

Ciarelli, who established the site when he was 13-years-old, is an avid fan of Apple products. He maintains that his Think Secret site helps attract interest in Apple products.

Lawyers and academics have weighed in on both sides of the case, with supporters of Apple’s position arguing, for instance, that the Uniform Trade Secrets Act, which has been adopted by most U.S. states, could prevent third parties–such as Think Secret–from revealing information obtained from people bound by non-disclosure pacts.

Gross, of Gross & Belsky LLP, in San Francisco, believes that First Amendment free-speech rights will trump Apple’s arguments in the case, which was filed in Superior Court in San Jose County, California. Gross has a long history of work in Internet litigation and was the first counsel to the Electronic Frontier Foundation.

Gross said there is “ample” case law backing Ciarelli’s position.

Think Secret broke stories about Apple’s recently announced Mac Mini computer as well as news of some of the firm’s iPod models. Ciarelli owns different versions of Apple computers and iPods himself.

“I employ the same legal newsgathering practices used by any other journalist,” Ciarelli recently told the Crimson, Harvard’s daily student newspaper. “I talk to sources of information, investigate tips, follow up on leads, and corroborate details. I believe these practices are reflected in Think Secret’s track record.”