Apple asks for iPhone prototype back, Gizmodo could face UTSA lawsuit - Page 5

I don't follow Gizmodo much, but reading all these posts, I am wondering why all the hating on them? I thought they just write articles about tech news. What's all the vitriol about?
Just wondered.

But you're not the guy from the Community Memory BBS, are you?

The financial penalties from one or several lawsuits could be quite severe. Gizmodo could be out of business in short order and Brian Lam could potentially be facing some jail time if Apple pursues this with a vengeance.

He's a modem firmware engineer. He needs to know how geohot is bypassing security so he can counteract it by patching the modem firmware in the next update. I believe there are apple engineers who jailbreak their phones to just to patch the exploit.

It is just plain FUGLY.

I don't believe that Apple wold release anything that looks like that.

Anybody who thinks Apple planned this or benefits from it in anyway is INSANE. It's GIZMODO! Apple carefully releases information to widely-read, mainstream news organisations. GIZMODO didn't even get review models of the iPad (and good luck getting into another Apple special event now). 3 million hits on GIZMODO is absolutely meaningless to Apple. Now the exclusive Apple offers Time or the New York Times is going to carry much less weight because some irrelevant internet blog stole the phone already. Apple represents a significant percentage of traffic for sites like GIZMODO and Engadget and GIZMODO just shot itself in the foot. If you want to know what value GIZMODO has to Apple try reading the comments section sometime; this is not a demographic Apple would gain anything from courting. It's blind anti-Apple rage in there. Every time a new Apple product is released they have to switch comments off because of all the ranting at the invisible enemy of "Apple zealots" who never actually show up.

Not much was revealed anyway that was not hinted at in OS 4.0. We still don't know how it all works in the OS, screen resolution, camera mp, who made the flash led, final shell, battery life, and there is probably more that I am not listing here.

You know what's worse than being in trouble at work? Being in trouble at work whilst surrounded by a media circus. He's already had to lock his Facebook and Twitter accounts. If I make a mistake at work, I'm pretty sure that I wouldn't want to be bombarded with phone calls and e-mails about it too.

This is now affecting his professional and private life.

I sure hope that you are right. This prototype looks like a crude early idea rather than a finished product.

How about a newspaper found on the subway? Can you open that up?

If so, what is the difference?

Lawyer here. In fact, IP lawyer.

I know everyone is enjoying batting around the idea of some sort of "UTSA lawsuit" (FYI - I've never heard it called a "UTSA suit"...it's a simple "trade secrets suit"). However, any suit for trade secret violations would likely fail for the simple fact that Apple would have a tough time proving the iPhone prototype was a "trade secret." Why isn't it a trade secret? Because Apple failed to take adequate efforts to preserve it's secrecy. Sure, Apple could argue it took efforts to preserve secrecy, but I'm pretty sure that Gizmodo or anyone else would have a fairly strong argument that taking a prototype to a bar (and possibly leaving it in the bar) was not adequate efforts to preserve secrecy. No trade secret, no lawsuit.

As for this whole theft argument, forget it. It would be near impossible to prove that Gizmodo had "intent" to steal or purchase stolen property. Also, no DA would pursue such a weak and minor case.

I know of no professional ethics in journalism which prohibit the reporter from divulging secret information.

That's basically what journalism is all about. Remember the Pentagon Papers? Watergate?

Publishing secrets information which is of value to the readers is the first responsibility of a journalist. It is not a breach of ethics.

Thanks for the input, Can you shed some light on why Giz has failed to mention what chips are running in the new iPhone or post pics of them on the logic board despite having taken the device apart? Is photographing a case different than photocopying the logic board?

Goodbye Gizmodo and yeah that was really wrong for revealing trade secrets, which could lose Apple billions in revenue.

What if the property is abandoned? Like an old computer put out with the trash?

It is not mine. Is it theft if I take it?

These things are not really so simple as you think. There are numerous elements to "stealing", all of which must be proved beyond a reasonable doubt. And there are many exceptions.

Could someone please tell me where all this gizmodo hate comes from? I love gizmodo, they talk about many different things and are always interesting to me.

It most certainly is in the public interest.

Take me, for example. The Nexus One is now available on ATT. I was waiting to see what Apple would come up with for their A+ iPhone update.

Now that I know, I'm not going to wait around, but instead, I'm going to pull the plug and get a Nexus One.

I'm a member of the public, and it is in my interest that Gizmodo published this news. That's what journalism is all abut.

So you believe Gizmodo's story? I'd say you're pretty gullible. But even if the story of how it was found were true, the person who found it knew it was something secret (why else would he have even contacted Gizmodo?), and of course Gizmodo knew it was secret - they mentioned when they published the pictures it was a secret prototype.

What did Gizmodo do that "could lose Apple billions"?

Care to make your point clear?

You are wrong about pretty much everything here, but I'll pick apart the last part cause it's just so easy ...

There are two obvious criminal charges here, theft, and receiving of stolen goods. The person who "found" the phone became a thief the minute they sold it to Gizmodo. That much is as plain as day. Gizmodo (presumably Jason Chen or Brian Lam), were in receipt of stolen goods the moment they bought it and the law doesn't care whether they "knew" it was stolen or not. They might even be considered to have aided and abetted the theft by purchasing the device instead of telling the person they should give it back.

Brian Lam, by his own words ... "This phone was lost, and then found. But from Apple's perspective, it could have been considered stolen. I told them, all they have to do to get it back is to claim it—on record. " seems to have committed extortion based on the mistaken assumption that the party that lost such a thing "has three weeks to claim it." If Apple didn't claim the phone "on the record," he wouldn't give it to them. He doesn't have that right, therefore it's extortion (blackmail).

California law certainly states that if you find such a thing you are required to give it back to the owner in a "reasonable" amount of time. The "weeks" Gizmodo said they had it or knew of it, doesn't qualify. If they knew about it for such a period and were at the same time (also by their own admission), negotiating to buy it, they are certainly guilty. The law also says that you *have* to return it the moment you know who the real owner is, which they clearly knew long before they gave it back.

It's just a matter of whether it's a slap on the wrist or a jail term.

The 'finder' was sitting next to the phone's owner.
The phone was full of Apple telephone numbers.
The Facebook app went straight to Gray Powell's page.
The 'finder' kept the phone for "some weeks"
The 'finder' sold the phone to a third party for $ 5000.00

?

1. Apple does not use the Aqua or Glass logo anymore. They now use a monochrome or monochrome with inside reflection version.
2. The Aqua/Glass version of the logo used in Gizmodo's letter does not look like any ever seen in official Apple communications (notice the highlight is too thin and reflection is too subtle for both Aqua and Glass styles used by Apple)
3. Since the start of the Aqua Apple logo, The colors typically used are black, blue or red... not purple.
4. The address in bottom right corner is in Apple Garamond instead of Apple Myriad... Apple switched to Myriad years ago...

I think this letterhead might be as fake as a "Kenyan Birth Certificate".

Really?! Having the owner admit it was their property before handing it over to them is extortion? I can't imagine how that would be presented in court.

even with everyone so certain there was going to be a new iphone, the contents of that update still fall under a trade secret.

Add to this that the guy that so wanted to return the phone could have walked into any Apple store after Apple Customer Service misunderstood what he was saying, asked for a manager and handed over the phone. Or that Gizmodo admittedly paid money to this guy with the intent to publish it etc. No way that they spin it puts them in the clear once they paid or published or even just didn't return. Instead it seems that they got it, held it for the best moment and when for it.

The ethics issue here isn't that they divulged information, the ethics issue here is that Gizmodo knew that the phone did not belong to the person to whom they paid $5,000.

Paying an information source is already on very tricky ground, paying for a device that isn't owned by your informant, taking it apart and publishing photos of it is clearly over the line.

These guys are amateurs.

The letter isn't fake. Gizmodo requested a formal letter be written by Apple to ask for the iPhone back for legal purposes. Jason Chen (Gizmodo) was just interviewed on MSNBC and he stated Gizmodo has it has given the iPhone back.

On another note, I'm cancelling all sites on my RSS feed who posted the engineer's name and helped to possibly ruin his career. I'm glad that AI took the classy route.

Dead to me:
1. Gizmodo
2. 9to5 Mac
3. Cult of Mac
4. Mac Rumors

I'm not really sure why they wouldn't photograph the logic board or mention the chips running. My best guess is Gizmodo is just being cautious. While they likely would have an argument that it's not a trade secret, the law is never clear on anything...and I'm sure revealing everything inside the case (the real secrets of the phone) would piss off Apple even more, and if for some reason a court did find the prototype to be a trade secret, showing every little inch of the prototype would definitely demonstrate that Gizmodo misappropriated/revealed the trade secret. Right now, Gizmodo can still argue that it didn't reveal anything critical and that the heart (the chips, logic board, size, etc.) of the "trade secret" is still secret (think of how we all know the Coke ingredients but the real secret is the way they are all put together). Again, this is all conjecture and who knows what Gizmodo's reasons were.

I found this, which bolsters my previous point:

"Now that Ive seen the coverage and seem to have a good idea of whats coming down the pipeline from Apple, Im feeling pretty good about walking into a Verizon store next week and buying HTCs Droid Incredible, which has been getting some pretty good reviews."

http://blogs.zdnet.com/BTL/?p=33253&tag=content;col1

Probably not provable, even by the preponderance of the evidence.

Can't believe how serious people are in this thread...... whew...... brickbats flying.....

(It's over, guys. Move on. Apple comes out ahead, Gizmodo comes out ahead, and the sw engineer, oh well....)

It seems to me that it would be hard to show that it was indeed a theft. While some might say it would have been better to hand it into the bar, that does not necessarily assure that it will be returned. Especially since one report claims the fellow who found it tried to return it to Apple.

One thing is fairly certain, the finder of the device had no idea that he had found anything other than an ordinary iPhone -- assuming, of course, that he (or she) really did find it and did not pay the Apple employee for it!

I am a loyal Apple user but people here are over reacting. Someone at Apple screwed up and lost a prototype of the next gen iPhone. SJ is probably pissed and the guy is probably having a hard time right now. Gizmodo did what they do and I am not sure why everybody is up in arms. It may have put a damper of SJ's reveal but its still great marketing. SJ should take the whole event by the horns and introduce the new iPhone by inviting the software engineer who lost it up on stage to announce it.

Well, good to know I'm wrong about "just about everything." I'll be sure to pass that along to my law firm and clients...

Anyway, criminal law is admittedly not my thing, but I can tell you that your little quote there is not extortion. And, even if it was, there's no way any sane company or DA would make such an arugment in a court of law.

As for the theft and receiving stolen goods, I'll just let you run yourself around in legal circles on that one. I don't know enough about the factual background to refute what your saying, but I was simply saying that no one is going to pursue such a small and difficult to prove claim. It just doesn't happen in the real world.

I would just like to say that I do not appreciate the accusative spin you have placed on this post towards Gizmodo.

You make it sound as if you (AppleInsider) would have just called Apple HQ to say that you have the next iPhone without releasing anything to the public.

As I find that very hard to believe I strongly feel that you should not be pointing fingers

Cheers

It would be very hard for them to make that claim given what happened earlier this year.

Back in January the website Valleywag came out and offered cash money to anyone that gave them proof positive that Apple was coming out with some kind of tablet, what it would look like, how it would work, mega money for letting Valleywag have access to one for a mere hour. Payment to be made after Apple announced (and thus proved whatever was told).

And then it went out all over the place just how many different ways this was totally illegal, causing Valleywag to update their offer with "don't do anything illegal because we won't get involved in that kind of stuff"

This iphone thing is exactly the same game. So thanks to that press in January, Gizmodo certainly knows they should have not paid anything, should not have gone on Twitter saying they would pay. Which makes me think the stuff about waiting, calling etc is lies and the guy went for a payout which is why Gizmodo is protecting his name but doesn't care about the alleged employee who might have been pickpocket and not just left it. And that the whole beer thing is a lie as well.

Oh and one last detail. Valleywag, that site that was almost sued just for making the cash offer, is owned by the same people as Gizmodo. So they definitely know how wrong it was that they didn't just mail it back to Apple, take it to the closest Apple store etc. Without ripping it open, making the videos or even saying on their site that they had seen it. Or telling the guy to take it to the nearest store if not campus itself. He was only 30 minutes away in traffic after all

You forgot:

The 'finder' waited at the bar for Gary Powell to come back.
The 'finder' contacted Apple by telephone in an attempt to find the right person to return the phone to.
Apple didn't call the 'finder' back.

You left out 3 clearly relevant facts. If those ARE the facts, it's pretty clear that this is a case of lost and found and not stolen. And as far as I know, under the clear language of the UTSA, paying for lost and found property isn't "misappropriation."

Gizmodo & Apple have somewhat of a past but not in the negative sense. You really haven't thought that this might have been planted?

Because something 'bad' happened to Apple. You have to remember this is AI, most are posters can't say anything critically of Apple or their products. If you do, you're branded a troll or something.

If this happed to Microsoft, Google, Palm, HTC, etc. nothing would be really said from AI, except probably a bunch of negative comments about said company, especially if they threw down a S&D like Apple has.

I say TS to Apple, welcome to the big world, one of your people lost their phone, and it's now on the internets. And it probably wouldn't even be that big of a deal, but given all the hype over everything Apple does, it's to be expected.

And I think some of these 4g rumors are well-crafted plants from Apple itself. People are going to buy the new iPhone regardless, it just makes people talk about it more, maybe adding some last minute feedback to Cupertino.

(although Giz is no angel either. A few years ago, they were at some tech show, and thought it was funny to shut off some presentation TV's during several company talks, using some remote IR devices, leading to much confusion and embarrassment to the presenters. Not very cool IMO)

Where did you get your US law degree and how long have you been practicing.

Thought so. Maybe in Finland there would be no possible lawsuit but unless you are an expert in the US laws regarding trade secrets, you really can't say nothing wrong was done.

Same for all the US lawyers that have popped up with "I'm a lawyer, not this area but still . . ."

Several lawyers that deal with trade secrets weighed in on the Valleywag business and this really isn't any different. So if it is real, yes Gizmodo is in for something from Apple. If only their lawyers making sure the potential illegality is exposed and Gizmodo's rep stomped all over.


They didn't try very hard. It was in the wild for 4 weeks. This alleged spot was less than 30 minutes from Cupertino. Drive up with the phone in a seal envelope, hand it to the guard and drive off. Or walk it into the nearest Apple store. Done.

Stolen property is not the same as found property. If the iPhone was truly found at a bar, there is a zero percent chance that a court would construe it that way.


In order for the "loser" to recover property from the "finder," the "loser" must make a claim for it. I think its reasonable for Gizmodo to demand that the claim is in writing. I just don't see how that can be blackmail.


A few weeks in this case is obviously more than a reasonable amount of time. 3 years is the time limit for title of the lost property to pass to the "finder" and has no bearing on what is reasonable in this scenario. If we take the facts as stated, then it appears that the "finder" waited at the bar for the phone's possessor to return. When he didn't, the "finder" attempted to contact Apple and return the phone to the proper person. A few weeks later, the phone was "sold" to Gizmodo (we don't know the legal arrangement of this), and Apple finally contacted Gizmodo.

Prof. Peabody, you're not a lawyer. You're leaving out facts and screwing up basic legal analysis. Any 1L who has taken Crim Law at any TTT law school could do the analysis better than you.