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Gizmodo affidavit says roommate's tip led police to iPhone - Page 7

post #241 of 310
Quote:
Originally Posted by Wonder View Post

It is irrelevant if the device was a real Apple device or not.
Giz knew when he first presented it to them that it was NOT his device.
He told them that, he said he tried to find the owner, hence not his.
Even if it was a fake, it was NOT his fake.
Authentic / fake does not come into the matter at all.
All that matters is if it was owned by Hogan or not when he tried to sell it to Giz.
Giz knew it was not his property, yet they still bought it, which is buying stolen goods (fake or real).

Even if by your guesses they were not told that the item was not his, they are still buying stolen goods, ignorance does not get them off the hook. Any reasonable person would question how Hogan could possibly be the owner of such a device.

Beyond the fact that yes, if it was fake then it certainly could have been his fake, i am not trying to 'get them off the hook'. I am simply pointing out the flawed logic in asserting that the fact that they paid Hogan for it proves they knew is was his. That is exactly why the held back part of the payment...because they couldn't have known if it was genuine or some fake that Hogan cobbled together or bought in China. Obviously they felt strongly that it was, but not certain and hence the withheld payment.

Does this get them off the hook? NO! I have said that. I am not arguing that it does. Clear as mud?

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post #242 of 310
Quote:
Originally Posted by Wonder View Post

Why did Giz not just call Apple BEFORE they pulled the device apart to see if it was real?
They did NOT need to pull it apart and publish photos to prove if it was real. There was no NEED to pull it apart at all, other than to MAKE MONEY.

You really are trying to give Giz a way out of their shady and quite dishonest actions.

Really? Because there were an awful lot of people that saw the tear down photos and still thought it was fake. Giz would know by examining the case and not opening it? Smart guys I suppose. (and please don't say they should have known because it had an Apple logo on it)

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post #243 of 310
Quote:
Originally Posted by Tulkas View Post

Really? Because there were an awful lot of people that saw the tear down photos and still thought it was fake. Giz would know by examining the case and not opening it? Smart guys I suppose. (and please don't say they should have known because it had an Apple logo on it)

The moment that Jobs called Gizmodo is the moment they should have been 100% certain. (And they should have been 99.9% certain before that.) They should have then: (1) gotten the phone back to Apple ASAP, and (2) not published any more damaging information.

They did not.

Thompson
post #244 of 310
Quote:
Originally Posted by Tulkas View Post

Beyond the fact that yes, if it was fake then it certainly could have been his fake, i am not trying to 'get them off the hook'. I am simply pointing out the flawed logic in asserting that the fact that they paid Hogan for it proves they knew is was his. That is exactly why the held back part of the payment...because they couldn't have known if it was genuine or some fake that Hogan cobbled together or bought in China. Obviously they felt strongly that it was, but not certain and hence the withheld payment.

Does this get them off the hook? NO! I have said that. I am not arguing that it does. Clear as mud?

Perhaps the bonus was predicated on whether it turned out to be the same phone that Apple ultimately shipped, as opposed to just one potential Apple iPhone prototype amongst several. So I don't think that the existence of a bonus necessarily shows that Gizmodo was skeptical about whether this was Apple property. It could be that they are just skeptical about the significance of this model.

(Although at this stage in the game, if a device is being field tested, it seems fairly certain that it has passed the blessing of Jobs and is likely the "gold master" candidate. But you never know with Steve. He can pull the plug at the last minute if he wants, and reputedly has done so on several occasions.)

It seems to me that Gizmodo was already convinced that the property was Apple's, but they realized that the scoop would even loom larger in retrospect if the device that shipped was the same. Hence the bonus. I know that Gizmodo has said otherwise... but of course they have.

Thompson
post #245 of 310
Quote:
Originally Posted by thompr View Post

The moment that Jobs called Gizmodo is the moment they should have been 100% certain. (And they should have been 99.9% certain before that.) They should have then: (1) gotten the phone back to Apple ASAP, and (2) not published any more damaging information.

They did not.

Thompson

Cat was already out of the bag, damage was already done and the genie was out of the bottle. 100% agree that once they received the call from Jobs, the should have driven it over handed to Jobs and apologized.

I would disagree that they should have necessarily withheld the info they had previously gather and photos they had previously taken. After their initial story and the details and photos it contained, what would be the point of holding back the remaining photos? They actually didn't reveal much additional info over the initial story. It might have shown them to be more sincere in their apology, but other than that, it wouldn't have fixed anything. For their own benefit, it might not have further enraged Jobs and perhaps he would have just let the whole thing die. Also, they might not have looked like such dicks if they were contrite at that point and explained to their readers that once they received confirmation from Jobs that they decided to be respectful and not post the additional details. But them being assholes or not doesn't make them more or less guilty.

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post #246 of 310
Quote:
Originally Posted by thompr View Post

Perhaps the bonus was predicated on whether it turned out to be the same phone that Apple ultimately shipped, as opposed to just one potential Apple iPhone prototype amongst several. So I don't think that the existence of a bonus necessarily shows that Gizmodo was skeptical about whether this was Apple property. It could be that they are just skeptical about the significance of this model.

(Although at this stage in the game, if a device is being field tested, it seems fairly certain that it has passed the blessing of Jobs and is likely the "gold master" candidate. But you never know with Steve. He can pull the plug at the last minute if he wants, and reputedly has done so on several occasions.)

It seems to me that Gizmodo was already convinced that the property was Apple's, but they realized that the scoop would even loom larger in retrospect if the device that shipped was the same. Hence the bonus. I know that Gizmodo has said otherwise... but of course they have.

Thompson

Possibly, but given the timing, it was a pretty good assumption that either it was real and very close to a final spec or it was fake.

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post #247 of 310
Quote:
Originally Posted by Tulkas View Post

Beyond the fact that yes, if it was fake then it certainly could have been his fake, i am not trying to 'get them off the hook'. I am simply pointing out the flawed logic in asserting that the fact that they paid Hogan for it proves they knew is was his. That is exactly why the held back part of the payment...because they couldn't have known if it was genuine or some fake that Hogan cobbled together or bought in China. Obviously they felt strongly that it was, but not certain and hence the withheld payment.

You keep ignoring the fact that IT DOESN'T MATTER if it was a real prototype or not.

Gizmodo repeated the story that it was found in a bar and little or no effort was made to return it to its owner (they knew the name of the owner and did not try to contact him. They ignored the ringing phone. They did not take it back to the bar. They did not do any of the 100 other things a rational person would do. *). That makes it stolen property under CA law.

The fact that Gizmodo paid at least $5 K for it make it felony theft.




* Here's the interesting hole in the Gizmodo story. The phone becomes stolen property if the finder did not make a reasonable effort to return it to its owner. Gizmodo is claiming that a phone call to AppleCare (which actually never occurred) is a reasonable effort to return it to the owner. That would be true ONLY IF APPLE WERE THE OWNER.

So Gizmodo painted themselves into a corner. If they claim that Hogan tried to return it to the owner, then they must have believed Apple to be the owner. If, OTOH, they want to claim that they didn't know Apple to be the owner, then a phone call (or even 100 phone calls) to Apple would not be a reasonable attempt to return it.

Either way, Gizmodo knowingly purchased stolen property.
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post #248 of 310
Quote:
Originally Posted by Tulkas View Post

After their initial story and the details and photos it contained, what would be the point of holding back the remaining photos? They actually didn't reveal much additional info over the initial story.

I'm not sure the fact that the "cat was already out of the bag, so what more harm can it do" is going to win the day if Gizmodo gets charged with divulging corporate secrets via the tear down photos. Especially since Gizmodo were the ones that initially let the cat out of the bag. Interesting concept that: "I was innocent because I didn't know what the cat was when I let it out of the bag, and I was also innocent later when I encouraged it to run around the neighborhood because what harm could it do... it was already out of the bag and was going to run around anyway."

You'd be surprised how much info competitors can glean from tear down pictures. Publishing them is another act of releasing privileged information, even though you could (correctly) argue that the competitors will have their own phones (not just pictures!) to tear down within a few of months. Now you could ask all day long about how those additional photos could have done any harm, but that's not for me to answer - nor do I have the knowledge to in the first place. Once Gizmodo knew that this was Apple property (Jobs' call) they needed to ask the question: "am I 100% certain that there's no way these photos could do any additional harm to Apple"? If they had asked that with an open mind, the only correct answer they could have come back with is, no, we can't be 100% certain. And if they asked the question: "are these photos protected by any sort of IP laws" they should have reached the conclusion "yes, probably". Remember, this is not the case of a journalist obtaining information to support whistle-blowing and the "greater good". This is sneakily getting information to support business (click-throughs) on a website. Big difference.

The bottom line is that even after Gizmodo knew for sure that they had an Apple prototype, they engaged in more acts of revealing IP. I kind of doubt that "well, we had already let the cat out of the bag back when we didn't know, so we figured what more harm can it do" is going to get much traction. It certainly doesn't with me. Guilty as hell.

Thompson
post #249 of 310
Quote:
Originally Posted by harleighquinn View Post

In the end, you are wrong. The phone was disassembled BEFORE the call, not after.

Hey, wow! I just noticed this response was to me! Perhaps I could be forgiven, though, because as far as I could tell, you were calling somebody "wrong" for something that I never said. I have never claimed any knowledge of when the actual disassembly took place. I only stated that the pictures were run after. To which you say...

Quote:
Originally Posted by harleighquinn View Post

The pictures were run AFTER.

Exactly so.

Quote:
Originally Posted by harleighquinn View Post

They just elected to run the story after, though too be honest they shouldn't have.

Hey! My point exactly!

Quote:
Originally Posted by harleighquinn View Post

This cannot be disputed no matter how much you try.

That is true: I cannot dispute the fact that I was correct and you have just proven it.

Quote:
Originally Posted by harleighquinn View Post

I will point out ALL the evidence, even if it damns Gizmodo.

And you did a fantastic job of damning Gizmodo. Guilty as hell.

Thank you for your support.

Thompson
post #250 of 310
Quote:
Originally Posted by thompr View Post

Hey, wow! I just noticed this response was to me! Perhaps I could be forgiven, though, because as far as I could tell, you were calling somebody "wrong" for something that I never said. I have never claimed any knowledge of when the actual disassembly took place. I only stated that the pictures were run after. To which you say...



Exactly so.



Hey! My point exactly!



That is true: I cannot dispute the fact that I was correct and you have just proven it.



And you did a fantastic job of damning Gizmodo. Guilty as hell.

Thank you for your support.

Thompson

I've actually been reading your responses to others on this vein and chose not to respond. My reason for that was due to, just as you did in this response, your need to backtrack what you previously said.

This entire exchange is based upon your statements that Gizmodo had not published pictures showing disassembly on the 19th, but instead on the 20th, AFTER SJ called Brian Lam. The report refutes this, and you have elected to backtrack stating you never said that.

There is no point even engaging someone in this mode of argument and therefore I elected not to.

I have decided to no longer shout into the wind. You can carry on with everyone else.
post #251 of 310
Quote:
Originally Posted by jragosta View Post

You keep ignoring the fact that IT DOESN'T MATTER if it was a real prototype or not.

Gizmodo repeated the story that it was found in a bar and little or no effort was made to return it to its owner (they knew the name of the owner and did not try to contact him. They ignored the ringing phone. They did not take it back to the bar. They did not do any of the 100 other things a rational person would do. *). That makes it stolen property under CA law.

The fact that Gizmodo paid at least $5 K for it make it felony theft.




* Here's the interesting hole in the Gizmodo story. The phone becomes stolen property if the finder did not make a reasonable effort to return it to its owner. Gizmodo is claiming that a phone call to AppleCare (which actually never occurred) is a reasonable effort to return it to the owner. That would be true ONLY IF APPLE WERE THE OWNER.

So Gizmodo painted themselves into a corner. If they claim that Hogan tried to return it to the owner, then they must have believed Apple to be the owner. If, OTOH, they want to claim that they didn't know Apple to be the owner, then a phone call (or even 100 phone calls) to Apple would not be a reasonable attempt to return it.

Either way, Gizmodo knowingly purchased stolen property.

And again, I am NOT arguing that it isn't stolen property. I am saying that to use the story the published after they had disassembled it as proof that they knew is was stolen before they saw it is logically flawed. The story in no way proves that they may have known before looking at it. You are right, that might not matter to the case, at all. It matters only in a logical, rational examination of what people are posting here.

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post #252 of 310
Quote:
Originally Posted by thompr View Post

I'm not sure the fact that the "cat was already out of the bag, so what more harm can it do" is going to win the day if Gizmodo gets charged with divulging corporate secrets via the tear down photos. Especially since Gizmodo were the ones that initially let the cat out of the bag. Interesting concept that: "I was innocent because I didn't know what the cat was when I let it out of the bag, and I was also innocent later when I encouraged it to run around the neighborhood because what harm could it do... it was already out of the bag and was going to run around anyway."

You'd be surprised how much info competitors can glean from tear down pictures. Publishing them is another act of releasing privileged information, even though you could (correctly) argue that the competitors will have their own phones (not just pictures!) to tear down within a few of months. Now you could ask all day long about how those additional photos could have done any harm, but that's not for me to answer - nor do I have the knowledge to in the first place. Once Gizmodo knew that this was Apple property (Jobs' call) they needed to ask the question: "am I 100% certain that there's no way these photos could do any additional harm to Apple"? If they had asked that with an open mind, the only correct answer they could have come back with is, no, we can't be 100% certain. And if they asked the question: "are these photos protected by any sort of IP laws" they should have reached the conclusion "yes, probably". Remember, this is not the case of a journalist obtaining information to support whistle-blowing and the "greater good". This is sneakily getting information to support business (click-throughs) on a website. Big difference.

The bottom line is that even after Gizmodo knew for sure that they had an Apple prototype, they engaged in more acts of revealing IP. I kind of doubt that "well, we had already let the cat out of the bag back when we didn't know, so we figured what more harm can it do" is going to get much traction. It certainly doesn't with me. Guilty as hell.

Thompson

Except that if they are guilty of violating trade secret laws, then again, that was already done with the initial story, pictures and video. Perhaps the subsequent info was beneficial to competitors, but any crime they committed with the initial release was already committed, without or without the subsequent release.

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post #253 of 310
Quote:
Originally Posted by Tulkas View Post

And again, I am NOT arguing that it isn't stolen property. I am saying that to use the story the published after they had disassembled it as proof that they knew is was stolen before they saw it is logically flawed. The story in no way proves that they may have known before looking at it.

You're ignoring the second half of my post that you responded to. Let me repeat it:

* Here's the interesting hole in the Gizmodo story. The phone becomes stolen property if the finder did not make a reasonable effort to return it to its owner. Gizmodo is claiming that a phone call to AppleCare (which actually never occurred) is a reasonable effort to return it to the owner. That would be true ONLY IF APPLE WERE THE OWNER.

So Gizmodo painted themselves into a corner. If they claim that Hogan tried to return it to the owner, then they must have believed Apple to be the owner. If, OTOH, they want to claim that they didn't know Apple to be the owner, then a phone call (or even 100 phone calls) to Apple would not be a reasonable attempt to return it.

Either way, Gizmodo knowingly purchased stolen property.
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post #254 of 310
Quote:
Originally Posted by harleighquinn View Post

I've actually been reading your responses to others on this vein and chose not to respond. My reason for that was due to, just as you did in this response, your need to backtrack what you previously said.

This entire exchange is based upon your statements that Gizmodo had not published pictures showing disassembly on the 19th, but instead on the 20th, AFTER SJ called Brian Lam. The report refutes this, and you have elected to backtrack stating you never said that.

There is no point even engaging someone in this mode of argument and therefore I elected not to.

I have decided to no longer shout into the wind. You can carry on with everyone else.

Ah, and never mind the fact that you backtracked my statement to something about when the disassembly actual took place something which could not be definitively construed from my original statement, even though it was (understandably) misinterpreted to mean what you suggested (i.e. that Gizmodo hadn't posted anything prior).

This is my point, if you care to respond: Jobs calls and asks for phone back. Gizmodo subsequently runs a story with detailed internal pictures. Guilty, regardless of when or what Gizmodo did prior. (Actually, I have them as guilty before anyway, but this angle is undeniable... which is why even you called it a damning action.)

Funny how you (and Tulkas) jump all over other people's modes of argument, when you are doing the same thing (e.g. backtracking). Funny also that you both carefully slip out from under the current point which is, as you acknowledged in your previous post, that Gizmodo should not have run the tear down story after receiving the Jobs' call, and that that evidence is, in fact, damning.

I think that it is fairly obvious now, in spite of your desperate nitpicking, that Gizmodo is guilty of (at least) three things:

(1) receiving stolen property, per the CA law.
(2) divulging corporate secrets, which is clear because they ran more stories after Jobs' call, and
(3) damaging other's property.

None of your desperate attempts to focus on me have managed to provide any sort of defense for Gizmodo.

Thompson
post #255 of 310
You're arguing with a classic set of Sea Lawyers. Facts mean nothing, common sense is abolished.

Don't give up, just realize the impossible task of getting them to coexist in the rational universe that most of the rest of us inhabit.

Let them to their oddities, because if they get ignored they lose, they can't keep their alternate reality alive. They only have a forum for their self indulgent logic if somebody plays the foil. Let them be the guy in the pic.

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post #256 of 310
Quote:
Originally Posted by thompr View Post

Ah, and never mind the fact that you backtracked my statement to something about when the disassembly actual took place something which could not be definitively construed from my original statement, even though it was (understandably) misinterpreted to mean what you suggested (i.e. that Gizmodo hadn't posted anything prior).

This is my point, if you care to respond: Jobs calls and asks for phone back. Gizmodo subsequently runs a story with detailed internal pictures. Guilty, regardless of when or what Gizmodo did prior. (Actually, I have them as guilty before anyway, but this angle is undeniable... which is why even you called it a damning action.)

Funny how you (and Tulkas) jump all over other people's modes of argument, when you are doing the same thing (e.g. backtracking). Funny also that you both carefully slip out from under the current point which is, as you acknowledged in your previous post, that Gizmodo should not have run the tear down story after receiving the Jobs' call, and that that evidence is, in fact, damning.

I think that it is fairly obvious now, in spite of your desperate nitpicking, that Gizmodo is guilty of (at least) three things:

(1) receiving stolen property, per the CA law.
(2) divulging corporate secrets, which is clear because they ran more stories after Jobs' call, and
(3) damaging other's property.

None of your desperate attempts to focus on me have managed to provide any sort of defense for Gizmodo.

Thompson

Whatever you say.
post #257 of 310
Quote:
Originally Posted by jragosta View Post

You're ignoring the second half of my post that you responded to. Let me repeat it:

* Here's the interesting hole in the Gizmodo story. The phone becomes stolen property if the finder did not make a reasonable effort to return it to its owner. Gizmodo is claiming that a phone call to AppleCare (which actually never occurred) is a reasonable effort to return it to the owner. That would be true ONLY IF APPLE WERE THE OWNER.

So Gizmodo painted themselves into a corner. If they claim that Hogan tried to return it to the owner, then they must have believed Apple to be the owner. If, OTOH, they want to claim that they didn't know Apple to be the owner, then a phone call (or even 100 phone calls) to Apple would not be a reasonable attempt to return it.

Either way, Gizmodo knowingly purchased stolen property.

Actually, the claim that they posted was that Hogan made calls to multiple numbers at Apple, not one, but that is beside the point for our discussion here. Regardless of the story that Hogan gave Giz and that they later published and accepted, the content of his story (his calls) doesn't imply that Giz knew he was being honest before they looked at the phone. The withheld payment is an indication that they did not believe his story completely.

Once they knew it was Apple's (after disassembly by their account)then yes, they should have then known it qualifies as stolen and returned it. What we don't know is how long the gap was between them being convinced it was Apple's and them publishing the article and returning it to Apple. All the knew, by their story, before the looked it over, was that Hogan claimed it was real and Hogan claimed he had called Apple. If it wasn't real, i.e. was Hogan property legally, then his story about calling Apple wouldn't even matter, as it would have simply been his story in trying to boost the price.

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post #258 of 310
Quote:
Originally Posted by Tulkas View Post

Except that if they are guilty of violating trade secret laws, then again, that was already done with the initial story, pictures and video. Perhaps the subsequent info was beneficial to competitors, but any crime they committed with the initial release was already committed, without or without the subsequent release.

Leading to the interesting defense I suggested above, namely:

(1) Prior to Jobs' call, Gizmodo was innocent because they were only 99% sure that the phone was legit, therefore they could not be divulging trade secrets, and

(2) After Jobs' call, Gizmodo was innocent of divulging trade secrets, because those details were no longer secret, they themselves having already spilled the beans at a time when it was apparently OK to do so. (See argument 1. How freaking convenient.)

Don't you see a problem with this? Are you kidding me?

Under this defense, Gizmodo could continue posting articles until the cows come home, and all they have to do is testify to their original state of mind as not being 100% certain.

Thompson
post #259 of 310
Quote:
Originally Posted by Hiro View Post

You're arguing with a classic set of Sea Lawyers. Facts mean nothing, common sense is abolished.

Don't give up, just realize the impossible task of getting them to coexist in the rational universe that most of the rest of us inhabit.

Let them to their oddities, because if they get ignored they lose, they can't keep their alternate reality alive. They only have a forum for their self indulgent logic if somebody plays the foil. Let them be the guy in the pic.


Another valuable post by Hiro, full of meaningful contribution to the thread and discussion.

I love drive-by posters. I think they believe what they post has any meaning at all. The hit and run post takes some practice to be truly meaningful. By all means, please keep practicing.

Thanks Hiro. Your input is always valued for what it is worth.

Edit: You closing in on 1400 posts. Congrats. Any chance of actually contributing to a thread soon, or are you content with your interrupt-a-post pattern?

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post #260 of 310
Quote:
Originally Posted by thompr View Post

Leading to the interesting defense I suggested above, namely:

(1) Prior to Jobs' call, Gizmodo was innocent because they were only 99% sure that the phone was legit, therefore they could not be divulging trade secrets, and

(2) After Jobs' call, Gizmodo was innocent of divulging trade secrets, because those details were no longer secret, they themselves having already spilled the beans at a time when it was apparently OK to do so. (See argument 1. How freaking convenient.)

Don't you see a problem with this? Are you kidding me?

Under this defense, Gizmodo could continue posting articles until the cows come home, and all they have to do is testify to their original state of mind as not being 100% certain.

Thompson

I didn't present a defense. I said that if they were guilty, then the crime was committed prior to the call from Jobs. Afterwards, they would still be guilty because of their actions prior to the call, regardless of if they published additional info. They didn't get more guilty. They either were and are guilty or they are not guilty (of trade secret violations).

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post #261 of 310
Quote:
Originally Posted by Tulkas View Post

Actually, the claim that they posted was that Hogan made calls to multiple numbers at Apple, not one, but that is beside the point for our discussion here. Regardless of the story that Hogan gave Giz and that they later published and accepted, the content of his story (his calls) doesn't imply that Giz knew he was being honest before they looked at the phone. The withheld payment is an indication that they did not believe his story completely..

Are you completely incapable of understanding simple logic or is it that I've only posted the same message twice.

The fact is that it doesn't matter if they made one call to Apple or a million calls to Apple. Gizmodo has the same dilemma.

If they thought that making x calls to Apple constituted a reasonable effort to return the phone, that could only be true if they believed that the phone belonged to Apple - in which case the phone was stolen by CA state law.

If, OTOH, they want to argue that they didn't know for sure if the phone belonged to Apple, then even a billion calls to Apple would not constitute a reasonable effort to return the phone - and again, the phone is stolen under CA law.

No matter how you try to spin it, their own arguments prove them to be guilty of trafficking in stolen goods.
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post #262 of 310
Quote:
Originally Posted by Tulkas View Post

Once they knew it was Apple's (after disassembly by their account)then yes, they should have then known it qualifies as stolen and returned it. What we don't know is how long the gap was between them being convinced it was Apple's and them publishing the article and returning it to Apple. All the knew, by their story, before the looked it over, was that Hogan claimed it was real and Hogan claimed he had called Apple. If it wasn't real, i.e. was Hogan property legally, then his story about calling Apple wouldn't even matter, as it would have simply been his story in trying to boost the price.

What gave Gizmodo the right to run this story to begin with? The public's right to know? I'm sure you realize that there is no such thing as the public's right to know such a thing. The public has a huge desire to know, which is often the true barometer for a site like Gizmodo.

And what level of Gizmodo's certainty is required to make them liable for divulging trade secrets? Some would say it matters not whether they were certain at all. Others might say 50%, 90%, 100%. You seem to be leaning towards 100% in your defense, and I have allowed you to do so. But even that I question, especially if it serves as precedence for Gizmodo to continue the course of action without liability.

All of these questions are going to be highly scrutinized.

Thompson
post #263 of 310
Quote:
Originally Posted by jragosta View Post

Are you completely incapable of understanding simple logic or is it that I've only posted the same message twice.

The fact is that it doesn't matter if they made one call to Apple or a million calls to Apple. Gizmodo has the same dilemma.

If they thought that making x calls to Apple constituted a reasonable effort to return the phone, that could only be true if they believed that the phone belonged to Apple - in which case the phone was stolen by CA state law.

If, OTOH, they want to argue that they didn't know for sure if the phone belonged to Apple, then even a billion calls to Apple would not constitute a reasonable effort to return the phone - and again, the phone is stolen under CA law.

No matter how you try to spin it, their own arguments prove them to be guilty of trafficking in stolen goods.

Ok, here is the thing. I am NOT arguing that you are incorrect on that. Actually, you know it doesn't matter what they believed, with regard to whether they are actually guilt of trafficking in stolen property.

But, can you explain your statement that the fact that their published story, after they disassembled it, proves that they knew it was stolen before they ever saw it? The logic just isn't there. Again, it doesn't matter whether they knew it was stolen in terms of the legal case. But how do you get from them being convinced after they disassembled it, to they were convinced before they ever laid eyes on it because 3 weeks later they published a story that they now believe Hogan's story?

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post #264 of 310
Quote:
Originally Posted by Tulkas View Post

I didn't present a defense. I said that if they were guilty, then the crime was committed prior to the call from Jobs. Afterwards, they would still be guilty because of their actions prior to the call, regardless of if they published additional info. They didn't get more guilty. They either were and are guilty or they are not guilty (of trade secret violations).

OK, then what do you think?

Guilty before? Why or why not?

What does it take to prove violation of trade secrets? Do you have to prove someone's state of mind (especially 100% certainty)? A monumental task, I think, unless you have access to their communications surrounding the event. Ah! that seems like cause for obtaining their communication devices! Which they did! (It's becoming more clear, eh?)

Thompson
post #265 of 310
Quote:
Originally Posted by thompr View Post

What gave Gizmodo the right to run this story to begin with? The public's right to know? I'm sure you realize that there is no such thing as the public's right to know such a thing. The public has a huge desire to know, which is often the true barometer for a site like Gizmodo.

And what level of Gizmodo's certainty is required to make them liable for divulging trade secrets? Some would say it matters not whether they were certain at all. Others might say 50%, 90%, 100%. You seem to be leaning towards 100% in your defense, and I have allowed you to do so. But even that I question, especially if it serves as precedence for Gizmodo to continue the course of action without liability.

All of these questions are going to be highly scrutinized.

Thompson

I haven't 'leaned' anywhere. I am not defending them.

Are you arguing that you think they could be more and/or less guilty of a crime? I believe that if they were guilty before the call to Jobs, then they were guilty after the call to Jobs. The call from Jobs didn't absolve them of any crimes. They didn't get their guilty counters reset by Jobs call. If they were guilty, they were just as guilty after the call, regardless of them then releasing additional photos. That didn't make them more guilty.

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post #266 of 310
Quote:
Originally Posted by thompr View Post

OK, then what do you think?

Guilty before? Why or why not?

What does it take to prove violation of trade secrets? Do you have to prove someone's state of mind (especially 100% certainty)? A monumental task, I think, unless you have access to their communications surrounding the event. Ah! that seems like cause for obtaining their communication devices! Which they did! (It's becoming more clear, eh?)

Thompson

I think the first thing to do would be to determine if trade secret protections were in place. This will be decided by the courts. Now, if they were in place, then you simply have to prove they willingly violated Apple's trade secrets. That shouldn't be difficult.

Like I said, if they were and are guilty of violating Apple's trade secrets, they did so with their original article showing the pics, inside and out, and more importantly, their descriptions of the entire system. Therefore, they would be guilty before they received a call from Jobs. If Jobs had never called them, they would still be guilty. Therefore by time they released the rest of the photos, they were already guilty.

"My 8th grade math teacher once said: "You can't help it if you're dumb, you are born that way. But stupid is self inflicted."" -Hiro. 

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post #267 of 310
Quote:
Originally Posted by Tulkas View Post

I haven't 'leaned' anywhere. I am not defending them.

My apologies. I thought that you were defending them.

Quote:
Originally Posted by Tulkas View Post

Are you arguing that you think they could be more and/or less guilty of a crime? I believe that if they were guilty before the call to Jobs, then they were guilty after the call to Jobs. The call from Jobs didn't absolve them of any crimes. They didn't get their guilty counters reset by Jobs call. If they were guilty, they were just as guilty after the call, regardless of them then releasing additional photos. That didn't make them more guilty.

No, I agree with you on that score. If they are guilty before, then they are equally guilty after.

But there are some people that have proposed Gizmodo was not guilty before, and their argument is always based on the fact that Gizmodo didn't know for sure that what it was showing was legit. That's when I place the second question to them, and it gives them fits.

So I'll ask you again, then. Do you think that Gizmodo not guilty of violating trade secrets, even before the call from Jobs? Edit: I see that you have already answered this before I mashed the submit button.

Thompson
post #268 of 310
@ jragosta,

You have done an admirable job of showing that Gizmodo is likely guilty of trafficking in stolen goods. I have seen a lot of nitpicking about statements you made, but I'm not really seeing any good defense of Gizmodo here. Your strongest points are ignored. I have experienced a similar response with my angle about trade secrets: lots of huffing about the words I use; lots of valid points made that are tangential; but no actual arguing the real point of whether Gizmodo is guilty. I find it very hard to support the notion that they are not.

I do believe, however, that nobody will get any jail time out of this and that, most likely, whatever punishment Gizmodo sees will ultimately be made up for by future notoriety.

Thompson
post #269 of 310
Quote:
Originally Posted by thompr View Post

My apologies. I thought that you were defending them.



No, I agree with you on that score. If they are guilty before, then they are equally guilty after.
But there are some people that have proposed Gizmodo was not guilty before, and their argument is always based on the fact that Gizmodo didn't know for sure that what it was showing was legit. That's when I place the second question to them, and it gives them fits.

So I'll ask you again, then. Do you think that Gizmodo not guilty of violating trade secrets, even before the call from Jobs?

Thompson

To be honest, I have not decided.

In order for trade secret protection to apply, a company must make all reasonable efforts to ensure that it remains a secret. This is why many trade secrets never leave a company's facilities. Apple does a lot to keep their secrets and understandably so. But, if a company authorizes and instructs an employee to remove a device from their facilities and allows its use in a manner and in locales which might not be conducive to keeping it a secret, does it still maintain trade secret protection? Trade secret protection is lost if the keeper is found not to have taken necessary and reasonable steps to maintain its secrecy. Could that be argued here? I think so. Would that argument be successful? I have no idea.

If Giz successfully argues that trade secret protections did not apply, then how could Giz be guilty of trade secret violations? If, instead, the court finds that trade secret protection did apply, then I would say I think they are guilty.

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post #270 of 310
Quote:
Originally Posted by Tulkas View Post

But, can you explain your statement that the fact that their published story, after they disassembled it, proves that they knew it was stolen before they ever saw it?

OK. I've told you 3 times. Maybe you'll get it on the 4th.

The timing of publication doesn't matter. AT THE TIME THEY RECEIVED IT, they knew they were receiving stolen property. The logic (again) is:

If they thought that making x calls to Apple constituted a reasonable effort to return the phone, that could only be true if they believed that the phone belonged to Apple - in which case the phone was stolen by CA state law.

If, OTOH, they want to argue that they didn't know for sure if the phone belonged to Apple, then even a billion calls to Apple would not constitute a reasonable effort to return the phone - and again, the phone is stolen under CA law.

Either way, Gizmodo knew it was stolen AT THE TIME THEY RECEIVED IT (which is obviously before they published the pictures).

Quote:
Originally Posted by thompr View Post

@ jragosta,

You have done an admirable job of showing that Gizmodo is likely guilty of trafficking in stolen goods. I have seen a lot of nitpicking about statements you made, but I'm not really seeing any good defense of Gizmodo here. Your strongest points are ignored.

As I've said, Gizmodo must be hiring an especially poor bunch of shills. Even Adobe got better shills than Gizmodo. Maybe they used all their money on buying the stolen phone.
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Gatorguy 5/31/13
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post #271 of 310
Quote:
Originally Posted by Tulkas View Post

To be honest, I have not decided.

In order for trade secret protection to apply, a company must make all reasonable efforts to ensure that it remains a secret. This is why many trade secrets never leave a company's facilities. Apple does a lot to keep their secrets and understandably so. But, if a company authorizes and instructs an employee to remove a device from their facilities and allows its use in a manner and in locales which might not be conducive to keeping it a secret, does it still maintain trade secret protection? Trade secret protection is lost if the keeper is found not to have taken necessary and reasonable steps to maintain its secrecy. Could that be argued here? I think so. Would that argument be successful? I have no idea.

If Giz successfully argues that trade secret protections did not apply, then how could Giz be guilty of trade secret violations? If, instead, the court finds that trade secret protection did apply, then I would say I think they are guilty.

Well, OK, I see your angle. Let's look at it this way...

Unlike many of Apple's products, a candidate phone would have to undergo serious field testing. So the fact that Apple authorizes an employee to remove it from the facility wouldn't seem to be an unreasonable thing to do. But the question might then be just how much latitude the employee has in the locals he goes to and the manner in which he uses it. Given Apple's wonderful success at keeping previous models of iPhone secret so far, do you have any doubt whatsoever that they have a very restrictive policy for the field test employees to follow? Now, it may never come out in public, but if a court of law "goes there" I think they'll likely discover that Mr Powell broke a half dozen guidelines on the night that he lost the iPhone. (One thing to ask is how the iPhone actually left Powell's control. The rumors that he left it behind seem to be in question now.)

Then one might ask, does Mr Powell's mistake(s) invalidate the trade secrets? Can Gizmodo just purchase such a device and reveal it to the world, knowing that by law it should be returned to the control of the owner (whoever that may be... it wasn't Mr Hogan). Does the purchase of stolen property turn this back from a case of a company not keeping control of their property into a case of seeking to obtain corporate secrets and reveal them? I think the latter is self-evident, i.e. that Gizmodo actively sought to obtain Apple's secrets and reveal them. If Apple had simply done a piss-poor job of controlling their secrets, and it somehow landed on the front page of the New York Times without some sneaky action on behalf of the writer, I might feel differently. But this was active illegal behavior on Gizmodo's part.

This is looking like a very week angle, but I must confess that it has backed me down from "Guilty as Hell" to a good solid "Guilty as Heck". :-)

Thompson
post #272 of 310
Quote:
Originally Posted by jragosta View Post

As I've said, Gizmodo must be hiring an especially poor bunch of shills. Even Adobe got better shills than Gizmodo. Maybe they used all their money on buying the stolen phone.

Ah, I don't think they're shills. I just think they're folks with an argument and time to fight it on their hands. Kind of like us.

Thompson
post #273 of 310
Quote:
Originally Posted by thompr View Post

Then one might ask, does Mr Powell's mistake(s) invalidate the trade secrets? Can Gizmodo just purchase such a device and reveal it to the world, knowing that by law it should be returned to the control of the owner (whoever that may be... it wasn't Mr Hogan).

No. Under the law, a trade secret is still protected as long as the owner takes reasonable precautions to protect it. Apple clearly did so - up to the point of disguising the appearance.

Even if one argued that its outward appearance was not covered (an argument you'd lose), that would not give someone the right to disassemble it.

The phone is clearly a trade secret and Apple did nothing to void that status.
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post #274 of 310
Quote:
Originally Posted by jragosta View Post

No. Under the law, a trade secret is still protected as long as the owner takes reasonable precautions to protect it. Apple clearly did so - up to the point of disguising the appearance.

Even if one argued that its outward appearance was not covered (an argument you'd lose), that would not give someone the right to disassemble it.

The phone is clearly a trade secret and Apple did nothing to void that status.

I agree with you, and you agree with me, but I'm playing Devil's advocate here. The opposing argument would be that the very fact that the top secret iPhone prototype was left sitting in a bar for someone else to just stumble across is proof of Apple's negligence. We might answer that Mr Powell himself was the one begin negligent, as opposed to the corporate entity. But the response would be, as it usually is, that the employee is agent for the company, and his negligence is attributed to the company unless you can show that he severely broke policy. Then we go round and round about details of policy. Ack!

In order to avoid that fight, I would allow that there may be negligence there, but then I would argue that the active (and illegal) pursuit of the secrets by Gizmodo nullified the negligence argument. It would be such that damage was done NOT just because of Apple's negligence but also because Gizmodo's wrong-doings.

For instance:

Suppose that Mr Hogan himself had taken a bunch of pictures and posted them on his private website prior to giving the phone back to Apple as quickly as he could the next day. Then, and only then, do I think that the negligence argument would apply in Hogan's defense, and he probably would not be in any trouble. (And his notoriety forever more would certainly be worth more than the illegal $5K he received from Gizmodo.)

Thompson
post #275 of 310
Quote:
Originally Posted by jragosta View Post

OK. I've told you 3 times. Maybe you'll get it on the 4th.

The timing of publication doesn't matter. AT THE TIME THEY RECEIVED IT, they knew they were receiving stolen property. The logic (again) is:

If they thought that making x calls to Apple constituted a reasonable effort to return the phone, that could only be true if they believed that the phone belonged to Apple - in which case the phone was stolen by CA state law.

If, OTOH, they want to argue that they didn't know for sure if the phone belonged to Apple, then even a billion calls to Apple would not constitute a reasonable effort to return the phone - and again, the phone is stolen under CA law.

Either way, Gizmodo knew it was stolen AT THE TIME THEY RECEIVED IT (which is obviously before they published the pictures).

And for the last time, everything you just posted again, shows why you think they are guilty and that is fine. Nothing you have posted show they must have known it was stolen. If I call you right now and tell you I have a prototype Apple device and tell you some story about its background (lost , stolen, fell from a plane), then you know exactly jack shit about whether it is stolen or not. You have no clue if I bought it in China or made it my basement. You have no idea if I killed someone to steal it or found it in a bar. You may rightfully question my story, whether my story says I found it or bought in Shanghai. You know nothing about its legal state.

To repeat again, this doesn't mean that if it was stolen and you bought it from me that you wouldn't be guilty of buying stolen property. You would be. But only a fool would claim to say you knew it was stolen based on my story.

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post #276 of 310
Quote:
Originally Posted by thompr View Post

Well, OK, I see your angle. Let's look at it this way...

Unlike many of Apple's products, a candidate phone would have to undergo serious field testing. So the fact that Apple authorizes an employee to remove it from the facility wouldn't seem to be an unreasonable thing to do. But the question might then be just how much latitude the employee has in the locals he goes to and the manner in which he uses it. Given Apple's wonderful success at keeping previous models of iPhone secret so far, do you have any doubt whatsoever that they have a very restrictive policy for the field test employees to follow? Now, it may never come out in public, but if a court of law "goes there" I think they'll likely discover that Mr Powell broke a half dozen guidelines on the night that he lost the iPhone. (One thing to ask is how the iPhone actually left Powell's control. The rumors that he left it behind seem to be in question now.)

Then one might ask, does Mr Powell's mistake(s) invalidate the trade secrets? Can Gizmodo just purchase such a device and reveal it to the world, knowing that by law it should be returned to the control of the owner (whoever that may be... it wasn't Mr Hogan). Does the purchase of stolen property turn this back from a case of a company not keeping control of their property into a case of seeking to obtain corporate secrets and reveal them? I think the latter is self-evident, i.e. that Gizmodo actively sought to obtain Apple's secrets and reveal them. If Apple had simply done a piss-poor job of controlling their secrets, and it somehow landed on the front page of the New York Times without some sneaky action on behalf of the writer, I might feel differently. But this was active illegal behavior on Gizmodo's part.

This is looking like a very week angle, but I must confess that it has backed me down from "Guilty as Hell" to a good solid "Guilty as Heck". :-)

Thompson

Powell would have been acting on the behalf of Apple while doing his testing. Mistakes while acting in that role would be shared by his employer. If a Dominos pizza delivery driver hits you while on delivery, Dominos gets to share the blame. That's why they got rid of their 30 minutes or free guarantee...too many drivers in too big a rush.

It is likely a stolen property case entirely. Does this change whether Apple did or didn't do enough to satisfy 'reasonable'? Maybe. But before it was 'stolen' it was lost. Does misplacing it/leaving it in a public nullify TS protections? That is for the courts.

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post #277 of 310
Quote:
Originally Posted by thompr View Post

Ah, I don't think they're shills. I just think they're folks with an argument and time to fight it on their hands. Kind of like us.

Thompson

You've missed the point. As an experiment, try presenting a reasonable and rationale argument that goes counter to the party line sometime. Create an alt if you want to keep it off of this name (within forum rules-just don't post together) and keep it nice and civil and factually accurate. No trolling, just play a polite devil's advocate. You will be amazed at the level of righteous fury, aggression and bile you will run into.

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post #278 of 310
Quote:
Originally Posted by Tulkas View Post

Powell would have been acting on the behalf of Apple while doing his testing. Mistakes while acting in that role would be shared by his employer. If a Dominos pizza delivery driver hits you while on delivery, Dominos gets to share the blame. That's why they got rid of their 30 minutes or free guarantee...too many drivers in too big a rush.

Ah, exactly the argument that I predicted you would make a few posts above!

And the counter to the Dominos example is that if the driver is doing enough things against the corporate policies that the employee has received training on and signed acknowledgement for (all big corporations have these for CYA!) then Dominos does not necessarily share the blame. It depends on the details, and the arguments then dive into the policies and the details, etc, etc,etc.

Since we don't have these details, and likely never will, I'll consider the lost iPhone a case of Apple's negligence, similar to leaving your door unlocked. But shouldn't we also consider Gizmodo's active pursuit and illegal acquisition of that iPhone as a primary factor, much as we would hold the car thief liable for stealing your car as opposed to you for leaving it unlocked? Gizmodo's active involvement in the acquisition (can anyone deny it happened?) likewise takes precedence over Apple's mistake. If it were Chen himself who had found the iPhone... well, then, that's a whole 'nother can of worms. But that's not the way it went down.

Quote:
Originally Posted by Tulkas View Post

It is likely a stolen property case entirely. Does this change whether Apple did or didn't do enough to satisfy 'reasonable'? Maybe. But before it was 'stolen' it was lost. Does misplacing it/leaving it in a public nullify TS protections? That is for the courts.

Misplacing it may nullify it from TS protections, I don't know either. But a series of criminal actions after the fact brings TS protection right back into focus. Performing an illegal act to exploit a mistake is like sneaking into a top secret Government facility that was carelessly left unlocked. It's illegal, and the TS protection should be there for whatever you manage to pull out of the act.

Thompson
post #279 of 310
Quote:
Originally Posted by Tulkas View Post

And for the last time, everything you just posted again, shows why you think they are guilty and that is fine. Nothing you have posted show they must have known it was stolen.

This is worse than talking to a wall. At least walls don't keep repeating the same inane response.

Go back and read what I wrote. Get someone to read it to you since you're apparently incapable of simple comprehension.

Quote:
Originally Posted by thompr View Post

Misplacing it may nullify it from TS protections, I don't know either.

As I"ve explained above, it doesn't. As long as Apple took reasonable precautions, they can claim it as a trade secret - even if it was accidentally released.
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post #280 of 310
Quote:
Originally Posted by thompr View Post

Ah, exactly the argument that I predicted you would make a few posts above!

And the counter to the Dominos example is that if the driver is doing enough things against the corporate policies that the employee has received training on and signed acknowledgement for (all big corporations have these for CYA!) then Dominos does not necessarily share the blame. It depends on the details, and the arguments then dive into the policies and the details, etc, etc,etc.

And yes, that is exactly why corporations implement such policies. It reduces the chance of accidents occurring. But accidents while acting as an agent of a corporation will still, often, result in the company being held responsible. If he was out with the device, testing it for Apple, then he was acting as an agent of Apple.

Quote:
Originally Posted by thompr View Post

Since we don't have these details, and likely never will, I'll consider the lost iPhone a case of Apple's negligence, similar to leaving your door unlocked. But shouldn't we also consider Gizmodo's active pursuit and illegal acquisition of that iPhone as a primary factor, much as we would hold the car thief liable for stealing your car as opposed to you for leaving it unlocked? Gizmodo's active involvement in the acquisition (can anyone deny it happened?) likewise takes precedence over Apple's mistake. If it were Chen himself who had found the iPhone... well, then, that's a whole 'nother can of worms. But that's not the way it went down.

Misplacing it may nullify it from TS protections, I don't know either. But a series of criminal actions after the fact brings TS protection right back into focus. Performing an illegal act to exploit a mistake is like sneaking into a top secret Government facility that was carelessly left unlocked. It's illegal, and the TS protection should be there for whatever you manage to pull out of the act.

Which is why I say it will come to the stolen property case. The fact that the lost item became a stolen item will play a huge role in deciding the trade secret violations issue. But that doesn't remove Apple's responsibility to have done as much as possible to keep it a secret nor the issue of if they did so.

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