we all like to know all the new features the next generation iPhone is going to have, and although Mr. Steve Jobs is good at keeping things a secret, and the anticipation was killing me, the wait would have been more thrilling.
So all I can say to Gizmodo, thanks for nothing, and all action taking by law inforcement agencies is well deserved.
I keep thinking about all the spy pictures of new automobiles that are in the auto magazines. Are the pictures any different? A d if you know anything about pawn shops, a lot of what they buy are stolen items. The police are always coming in and taking items without charging the shop owners.
Pictures of prototype cars are allowed because they are taken/acquired in the public domain. If you are on public property, you are allowed to snap as many shots as you want within sight, even if said car is on private property. Same with celebrities. The line is drawn when snapping shots inside a private residence.
Pawnshops are required, by law, to gather identification info from the person he receives the property from and gives the "loan" to. The pawnshop is not required to check ownership, just retain the identification of the person with whom he is doing business with. The main line of business of a pawnshop is to loan money based on the value of collateral. They make their money via interest earned from the loan.
Pawnshops are friends of the police. Lots of crimes are solved in conjunction with pawnshops.
You have a point that's trying to come out, but you're giving bad examples.
Gizmodo got a scoop and went for it. I can't believe I'm reading all these hateful comments here. People should be pumped they got to see the new iPhone early. I know I am. I guess if you're a stockholder that's one thing, but it's probably not going to hurt the stock price at all. Does it help the competition? Maybe, but most of them have shown they really don't get it anyway, and I don't know how knowing there's a front facing camera or new design is going to help them in the least. It's the software, and Apple already showed off OS 4 to the public.
I love Apple, the company makes great stuff and I wish them well. I get tired of the secrecy and mystery. It wears thin three phones in. Not to mention the iPad. I don't see how most people, especially gadget lovers, can be upset about seeing what is arguably the ultimate gadget early. You should be happy.
I am a stockholder. I don't think it will hurt the stock at all, honestly, if anything it will cause a false elevation in the price temporarily before it begins climbing as normal.
I was quite happy to see the new phone, what I wasn't happy about was the smug, arrogant manner in which those hacks at Gizmodo lied about every facet of this story from the beginning (and it does not take a rocket scientist to detect the BS) and then top it off by throwing this poor kid under the bus.
See, whatever epic, foolish mistake the kid MIGHT have made (and we still don't know the if phone was really stolen from him or not) Gizmodo wrote an article for the sole purpose of throwing him under the bus to save themselves.
They used him to draw attention away from themselves, to distract, and in the process, ruined any chance at a career for him in the future by plastering his name and face everywhere they could in an attempt to either make him look like the bad guy of the year, or the idiot of the year. They mocked and insulted him, and frankly, what they wrote tastes of libel to me.
Before you suggest that he IS the idiot of the year for losing a prototype iPhone, tell me first that you've never left a phone somewhere yourself.
Apple didn't disclose his identity. Neither did he.
Gizmodo did.
It was nine kinds of wrong, and if there is one thing I have come to despise with every fiber of my being, it is seeing people do things that are mean and nasty to others for self-serving reasons.
That's what Gizmodo did, and that's why I hope those idiots are fired.
Which is why it was disguised as a current model iPhone. It's one thing if they take it out bare naked for everyone to see. That they're hiding it when in public means it is still considered to have trade secret protection. Besides, it was not "brought out by Apple." It was carried by an employee and he didn't publicly announce that it was a next-gen iPhone. Trade secrets are considered misappropriated even if they were revealed by accident.
It being disguised seems to be irrelevant since it was out in the public. The employee that took it from the Apple facilities, was acting as an agent of Apple and was authorized and instructed to remove it from the facilities. That is the same as it having been "brought out by Apple". It wasn't 'brought out' as in announced, but it was brought out into the public by an employee of Apple at Apple's request.
Once it is out in public, trade secret protection won't seem to apply. For the same reason that car makers lose trade secret protection when they take their vehicles out in public for testing. They might disguise it, but that make no difference. It is also irrelevant that someone knows that it is considered a trade secret. Anything someone can discern from observing the vehicle, while it is in the public, is fair game. If this was not the case, you would have the car makers suing every publication every time pictures and info of test vehicles that are seen in public are published, especially if they took steps to disguise the vehicle. The publication knows it isn't meant to be public yet, but because the information was discovered as a result of the vehicle being in the public, it is fair and legal.
Does this cover all of the pictures that Giz published? Probably any of the exterior. Once they disassembled it, that might change the equation. They could argue that they intentionally disassembled only as far as a technician would without causing physical harm to it and intentionally did not expose parts that Apple has used extra precautions to prevent being seen. But, they did not simply take and publish information that was readily discoverable simply by the phone being in the public. They had to take the extra steps of disassembly and this is what might bite them in the ass.
Actually, the manner in which it was lost isn't particularly relevant.
What MIGHT be relevant is whether Gizmodo knew it was an Apple trade secret. Since they spent $5 K on it AND took it apart AND identified it as a prototype 4G phone on their web site, they knew what it was - and therefore knew it was a trade secret.
Under NY AND CA law, they're guilty. It's about as close to a slam dunk as these things get.
Sorry, they're almost certainly guilty - their $5 K payment, immediate disassembly, and publishing that it was a 4G phone is about 99% of the proof needed. It won't be hard to get the rest.
Actually, skimming the links you posted, how it was lost becomes very important. Critical in fact.
from the UTSA:
Quote:
(1) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means.
(2) "Misappropriation " means: (i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
How the finder came into possession is important, because it is the key factor in the very first definition. Did he come into possession of it through 'improper means'?
Since the definition of 'misappropriating' depends on how it was acquired, it would seem you are quite wrong in dismissing how it was found (acquired).
Also in your links, they discuss efforts to keep it secret. This is up to a court to decide, but it seems that an argument could be made that slightly tighter restrictions on the usage of the prototype phones could have prevent this fiasco and still been reasonable. There is no need for an employee to bring the phone to a bar where he intends to drink. It would have been reasonable to prohibit this. There are other steps that could have been implemented. The argument would be, were reasonable steps take to ensure its secrecy was maintained? Maybe. Maybe not. If not, no trade secret case, period.
Once it is out in public, trade secret protection won't seem to apply. For the same reason that car makers lose trade secret protection when they take their vehicles out in public for testing.
You are 100% wrong. I do this for a living.
You lose protection ONLY ON THE VISIBLE ITEMS when you take it out in public. If a car manufacturer takes a new car out in public without designing it, you are free to take pictures.
If, however, that car has a Micro-Fusion reactor driving the wheels which is not visible from outside the engine compartment and they do not disclose it, the fact that they drove it in public is 100% irrelevant.
Quote:
Originally Posted by Tulkas
Actually, skimming the links you posted, how it was lost becomes very important. Critical in fact.
from the UTSA:
How the finder came into possession is important, because it is the key factor in the very first definition. Did he come into possession of it through 'improper means'?
Since the definition of 'misappropriating' depends on how it was acquired, it would seem you are quite wrong in dismissing how it was found (acquired).
Also in your links, they discuss efforts to keep it secret. This is up to a court to decide, but it seems that an argument could be made that slightly tighter restrictions on the usage of the prototype phones could have prevent this fiasco and still been reasonable. There is no need for an employee to bring the phone to a bar where he intends to drink. It would have been reasonable to prohibit this. There are other steps that could have been implemented. The argument would be, were reasonable steps take to ensure its secrecy was maintained? Maybe. Maybe not. If not, no trade secret case, period.
Stick to your day job.
The fact that they disguised the phone AND have a written and enforced policy regarding disclosing information (look at the guy who got fired for showing the iPad to Woz) is more than sufficient.
As for your definitions, read the relevant part of the NY law:
"Under New York law, misappropriation consists of use or disclosure of a trade secret that was acquired through a relationship of trust (such as employment), or through fraud or other improper means, such as theft, bribery, or hacking. This definition appears to include publishing a trade secret while knowing that your source obtained it through improper means or in breach of a confidentiality agreement."
Gizmodo knew it was Apple's prototype phone at the time they published the article. They knew that they paid someone $5 K for a phone that was allegedly found on a bar stool - which clearly fits the definition of theft in both CA and NY. More importantly, they knew 100% that the 'finder' did not have the authority to sell an Apple prototype phone. Yet they published trade secret information, anyway (the inside of the phone, for example).
Even a C- law school graduate right out of school could win this one for Apple. And you can be sure that if they decide to prosecute that they' won't be using a kid right out of school.
You lose protection ONLY ON THE VISIBLE ITEMS when you take it out in public. If a car manufacturer takes a new car out in public without designing it, you are free to take pictures.
If, however, that car has a Micro-Fusion reactor driving the wheels which is not visible from outside the engine compartment and they do not disclose it, the fact that they drove it in public is 100% irrelevant.
You do what for a living? Take partial quotes from people to misrepresent what they said? Nice job, must be fun. Let's look at what I actually said.
Quote:
Once it is out in public, trade secret protection won't seem to apply. For the same reason that car makers lose trade secret protection when they take their vehicles out in public for testing. They might disguise it, but that make no difference. It is also irrelevant that someone knows that it is considered a trade secret. Anything someone can discern from observing the vehicle, while it is in the public, is fair game. If this was not the case, you would have the car makers suing every publication every time pictures and info of test vehicles that are seen in public are published, especially if they took steps to disguise the vehicle. The publication knows it isn't meant to be public yet, but because the information was discovered as a result of the vehicle being in the public, it is fair and legal.
Does this cover all of the pictures that Giz published? Probably any of the exterior. Once they disassembled it, that might change the equation.
I mean, really, at least try to keep your argument honest.
As I said, the disassembly would be in question. But pictures of the exterior, after it was left in a public place? You honestly consider an leaving an item in a bar to be a reasonable effort to keep it secret?
Quote:
Originally Posted by jragosta
Stick to your day job.
Could I try for yours? Using reason and logic can tiring. Yours seems like more fun.
Quote:
Originally Posted by jragosta
The fact that they disguised the phone AND have a written and enforced policy regarding disclosing information (look at the guy who got fired for showing the iPad to Woz) is more than sufficient.
yeah, just look at the guy that got fired. And then use your brain and look at the guy that didn't get fired. he didn't get fired, which by your logic means he didn't violate those 'written and enforced' policies. Polcies which then allowed teh device to be observed in public?
(You really do this for a living? Really?)
Quote:
Originally Posted by jragosta
As for your definitions, read the relevant part of the NY law:
"Under New York law, misappropriation consists of use or disclosure of a trade secret that was acquired through a relationship of trust (such as employment), or through fraud or other improper means, such as theft, bribery, or hacking. This definition appears to include publishing a trade secret while knowing that your source obtained it through improper means or in breach of a confidentiality agreement."
Gizmodo knew it was Apple's prototype phone at the time they published the article. They knew that they paid someone $5 K for a phone that was allegedly found on a bar stool - which clearly fits the definition of theft in both CA and NY. More importantly, they knew 100% that the 'finder' did not have the authority to sell an Apple prototype phone. Yet they published trade secret information, anyway (the inside of the phone, for example).
Oh, so then how it was acquired does matter. Gotcha. (really, you do this for a living?) So then we agree, regardless of what you previosuly said. (for a living?)
Seems to me that Apple needs to be careful here. They might just end up creating an incentive to sell a future iDevice prototype to somebody who isn't based in the US and who won't be so cooperative as to give the device back.
Huh? The concept of theft is pretty universal and most western countries reciprocate with each other for criminal offenses. Even if you were to or ran to some place like China I don't think you would automatically be "safe".
Certainly Apple might go along with criminal charges, just not a huge lawsuit. Let the bad karma points kill off advertising and any company wanting to give them review copies/units (Apple certainly won't anymore or invite them to any of their press stuff). That will hurt pretty bad.
I was listening to Merlin Mann on the 5by5 podcast and he made an excellent point - Apple has up to three years to prosecute. So, wait until June or whenever the next iPhone update is and then I think Apple will whack them. And whack them hard. They have them criminally, and under the CA trade secrets law they have them civilly. They are so blatantly in the wrong, and they admitted it in their own statements on multiple occasions! They are (and should be) toast.
But not until after the next iPhone gets released. Right now I'm sure Apple just want's this to blow over.
I've been thinking about Gray Powell, the Apple engineer that was relieved of his prototype iPhone in a bar. Despite what some seem to think, Gray Powell is a victim, not a perp. If, indeed, he did leave his iPhone behind, it was certainly nothing he did intentionally. He simply made a mistake. Hell, it might not even be a mistake. The iPhone could have accidentally worked its way out of Gray's pocket and he simply didn't notice. Or it could have been intentionally stolen rather than "found". At this point, we don't know the exact details of HOW Gray lost possession of the prototype iPhone that night. Sure, Gizmodo has their story. But we all know there are always two (or more) sides to a story!
What we do know is that Gizmodo "outed him". And that's what I've been thinking about. Until Gizmodo caused Gray's name to be splashed all over the internet, Gray wasn't a "public figure". Since Gray was not a public figure, Gray has a reasonable expectation of privacy. In fact, he has a Constitutional RIGHT to privacy. From the California Constitution:
Article 1, Section 1
"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
Now, if Gray had voluntarily shared the prototype iPhone with a blogger, or if Gray had broken any laws to cause that information to be shared, then Gray's right to privacy could have been lost because he caused himself to become a news story, in essence, a public figure. But is the simple act of losing an iPhone enough to cause Gray to become a "public figure"?
I think not. Gray did nothing proactive to abandon his right to privacy. He simply lost an iPhone (or he was relieved of it without his knowledge). And, while a "found" prototype iPhone may be a news story that many want to read about, going into the private contents of that device and turning personal information found there into a news story seems to be a violation of privacy. The person that "found" the iPhone had no right to share that personal information with anyone. The only justification that person has for looking at the data on the iPhone is to return the iPhone to the rightful owner. That person reportedly looked through the data on the iPhone enough to find Gray Powell to be the owner, but made no attempt to return the iPhone to Gray Powell. Instead, according to Gizmodo's story, that person reported Gray's name to Gizmodo. And we know what happened after that.
It seems to me that the person that found the iPhone violated Gray Powell's Constitutional Rights by sharing private information with Gizmodo. Less clear to me is whether Gizmodo also violated Gray Powell's Constitutional Rights by making that information public.
At this point however, I wouldn't be surprised to see a civil lawsuit brought by Gray Powell naming John Doe and Gizmodo as defendants for violation of his Constitutional Right to Privacy.
Sadly, there are still people that ignorantly believe Gray Powell is to blame for all this. Which, of course, is ridiculous. That's like having a pedestrian on the sidewalk getting hit by a car being driven by a drunk and then blaming the accident on the pedestrian because he was on the sidewalk when the car was there.
what i most find offensive in Gizmodo's action is outing the Apple engineer who lost the phone. I really see no benefit whatsoever even in the journalistic sense. Not only do they reveal his name, displayed his photo but also went as far as posting his private messages. Whatever integrity that Gizmodo writers had before this incident they've now been flushed down the toilet.
I do wish for the engineer to file a civil suit on the grounds that his privacy has been compromised.
+1
I think Apple is going to whack Gizmodo - it will just be after the iPhone launch. If they don't, they would be seen more as condoning this, and I don't think they want that at all.
Gizmodo/Gawker has left them so much to show clear intent, and a clear pattern of the blatant disregard for the law, it would be crazy for them to not follow through.
That and the letter to Gizmodo coming from the head of Apple's Legal, and not the normal attorney's working for Apple who send cease and desist letters, is a clue as to just how seriously Apple is taking this.
It's far from over. We won't see anything today, but there will be real fireworks this summer - that's for sure!
What we do know is that Gizmodo "outed him". And that's what I've been thinking about. Until Gizmodo caused Gray's name to be splashed all over the internet, Gray wasn't a "public figure". Since Gray was not a public figure, Gray has a reasonable expectation of privacy. In fact, he has a Constitutional RIGHT to privacy. From the California Constitution:
Mark
He did something newsworthy, and he became news.
There is no violation of rights.
If you do something that becomes international news, then YOU become international news. His name is nothing more nor less than a fact that is news.
If Apple had filed the criminal complaint, wouldn't that be public knowledge by now? Also, unless it was specifically requested by the 'injured party' (in this case Apple), I would have to believe that Santa Clara police have cost-benefit trade-offs to make: I'll bet this is far from the most pressing law enforcement issue in that town/county.
Apple has three years to do so. What makes more sense - do it now and continue the fuss they have little control over about an unreleased product?
Or wait until the product is released when the press over the issue doesn't matter, and then go for it?
I think the easy choice is the latter. Apple gains nothing by letting this go. I don't think this is over - not by a long shot.
If that's what he's saying, he's 100% wrong. PLEASE make some effort to learn something about the law before spouting off any further.
The brightline case regarding inadvertent disclosure outside trial deals narrowly with disclosure of a secret customer list. Defiance Button Machine Co. v. C&C Metal Products Corp., 759 F.f2d 1053 (2nd Cir. 1985). The possessor of a trade secret must take "reasonable measures" to protect its secrecy. See id. at 1063, quoting Milgram on Trade Secrets. "[T]he owner is entitledb] to such protection only as long as he maintains the list in secrecy;upon disclosure, even if inadvertent or accidental, the information ceases to be a trade secret and will no longer be protected." Id. While Defiance Button speaks specifically to disclosure of a customer list, other cases involving a wide range of trade secrets and types of disclosure have relied heavily on it. A Second Circuit district court stated that accidental or inadvertent disclosure will result in loss of status when deciding a case involving an electronic photographic retouching and imaging system. Julie Research Laboratories, Inc. v. Select Photographic Engineering, Inc., 810 F. Supp. 513 (S.D.N.Y. 1992). "The adequacy of the measures taken to protect the secrecy of the product is a fact question." Id. at 520. It should be noted that the appellate court reversed the damages awarded at the district court level; however, it left the dicta regarding loss of trade secret status untouched.
I don't think they are ridiculous. If anything there are more people giving Gizmodo the benefit of the doubt than they deserve.
The reason for all the "hate" against Gizmodo is that they are all colossal jerks and have behaved like spoiled kids (with a potty mouth to boot), for years now. Also, whenever they performed one of their "hi-jinks" they usually got people defending them saying that they were basically good kids etc., so you can't say people haven't in general given them a break even when they didn't deserve it.
If someone with impeccable moral credentials makes a mistake like this (buying stolen goods, exposing trade secrets etc.), simply because they don't understand the law, and then apologises profusely, they probably wouldn't get into any trouble at all.
Gizmodo on the other hand has a horrible record morally speaking and they've done similar things in the past. They did this particular deed on purpose, in full knowledge of how wrong it was, and then thumbed their noses at everyone concerned. They were smug about it. They were mean about it. They blamed others for their own crimes. They covered up the identity of the original thief. They blamed the Apple employee who was the chief victim of the crime.
Excellent post - well worth repeating. What I find "breathtaking" is the people defending Gizmodo
The problem is Gizmodo people are not journalists. They are part of a blog.
IMHO they are scum that don't deserve page hits.
Not sure how you can say tgatvwhen they get some if the too scoops. Personally, I'm wondering where the nano phone is. Patients had it like the square nano x two that folded over. No crime if they bought it from sine that found it. A crime committed if they paid someone to steal it from the campus. Just like ipad rev two and three, they will becsi much better. Everyone knows June and July = new phones.
I really wish some of you would listen to your nonsense.
Wow, you need a mirror...
Quote:
People steal/find things all the time.
Yup, two wrongs make a right
Quote:
Beginning with Steve Jobs and the Xerox UI he stole.
Apple paid Xerox for access to their lab. It was a common practice at the time when companies had stuff they didn't know what to do with, they would sell access to others. Apple didn't steal anything, yet this idiotic meme somehow survives on the Internet.
All you do by repeating it is reveal just how ignorant you are.
Quote:
had a president that stole 2 elections
Now we pass from ignorance into tin foil territory. Nice.
Quote:
Do you really think only Giz would've acted that way? Giz was probably the only one with the balls to investigate and it paid off.
Uh, yes we know they were the only ones to ac this way because other sites like Engadget turned the "sellers" down.
Because it was the right thing to do.
Quote:
Nothing is gonna happen to them except not get invited to any Apple events. Big deal. There are still many tech companies that will have them.
Why don't we reserve judgment until this works it's way out? Apple has three years to do something - I have a pretty strong feeling that after the next generation iPhone launches, things will get interesting.
The suggestiont that it is reasonable and ethical for Gizmodo to encourage theft of private property (by offering the reward in the first place) and then pay for stolen property ?all in the interests of journalism? is reprehensible.
Bingo! This is the crux of the matter. Criminal intent - all the armchair lawyers in this thread need to go look that one up. Think of it as a bonus multiplier - but without the positive connotations
Now that the mother of all inside Apple news comes out you're all up in arms. You're all hypocrites
Actually, if you want to set aside the legality/morality of their actions they kind of screwed that up too, now didn't they? We really didn't learn anything new other than confirming a front facing camera (which Engadget and others had already reported) and that it was smaller.
Woo! What a coupe! They had it physically in their hands and they were able to tell us very little, other than what had already been speculated.
In a year we'll have to ask them if it was really worth it...
Comments
So all I can say to Gizmodo, thanks for nothing, and all action taking by law inforcement agencies is well deserved.
Hasta Nunca Estupidos De Gizmodo
I keep thinking about all the spy pictures of new automobiles that are in the auto magazines. Are the pictures any different? A d if you know anything about pawn shops, a lot of what they buy are stolen items. The police are always coming in and taking items without charging the shop owners.
Pictures of prototype cars are allowed because they are taken/acquired in the public domain. If you are on public property, you are allowed to snap as many shots as you want within sight, even if said car is on private property. Same with celebrities. The line is drawn when snapping shots inside a private residence.
Pawnshops are required, by law, to gather identification info from the person he receives the property from and gives the "loan" to. The pawnshop is not required to check ownership, just retain the identification of the person with whom he is doing business with. The main line of business of a pawnshop is to loan money based on the value of collateral. They make their money via interest earned from the loan.
Pawnshops are friends of the police. Lots of crimes are solved in conjunction with pawnshops.
You have a point that's trying to come out, but you're giving bad examples.
Gizmodo got a scoop and went for it. I can't believe I'm reading all these hateful comments here. People should be pumped they got to see the new iPhone early. I know I am. I guess if you're a stockholder that's one thing, but it's probably not going to hurt the stock price at all. Does it help the competition? Maybe, but most of them have shown they really don't get it anyway, and I don't know how knowing there's a front facing camera or new design is going to help them in the least. It's the software, and Apple already showed off OS 4 to the public.
I love Apple, the company makes great stuff and I wish them well. I get tired of the secrecy and mystery. It wears thin three phones in. Not to mention the iPad. I don't see how most people, especially gadget lovers, can be upset about seeing what is arguably the ultimate gadget early. You should be happy.
I am a stockholder. I don't think it will hurt the stock at all, honestly, if anything it will cause a false elevation in the price temporarily before it begins climbing as normal.
I was quite happy to see the new phone, what I wasn't happy about was the smug, arrogant manner in which those hacks at Gizmodo lied about every facet of this story from the beginning (and it does not take a rocket scientist to detect the BS) and then top it off by throwing this poor kid under the bus.
See, whatever epic, foolish mistake the kid MIGHT have made (and we still don't know the if phone was really stolen from him or not) Gizmodo wrote an article for the sole purpose of throwing him under the bus to save themselves.
They used him to draw attention away from themselves, to distract, and in the process, ruined any chance at a career for him in the future by plastering his name and face everywhere they could in an attempt to either make him look like the bad guy of the year, or the idiot of the year. They mocked and insulted him, and frankly, what they wrote tastes of libel to me.
Before you suggest that he IS the idiot of the year for losing a prototype iPhone, tell me first that you've never left a phone somewhere yourself.
Apple didn't disclose his identity. Neither did he.
Gizmodo did.
It was nine kinds of wrong, and if there is one thing I have come to despise with every fiber of my being, it is seeing people do things that are mean and nasty to others for self-serving reasons.
That's what Gizmodo did, and that's why I hope those idiots are fired.
Which is why it was disguised as a current model iPhone. It's one thing if they take it out bare naked for everyone to see. That they're hiding it when in public means it is still considered to have trade secret protection. Besides, it was not "brought out by Apple." It was carried by an employee and he didn't publicly announce that it was a next-gen iPhone. Trade secrets are considered misappropriated even if they were revealed by accident.
It being disguised seems to be irrelevant since it was out in the public. The employee that took it from the Apple facilities, was acting as an agent of Apple and was authorized and instructed to remove it from the facilities. That is the same as it having been "brought out by Apple". It wasn't 'brought out' as in announced, but it was brought out into the public by an employee of Apple at Apple's request.
Once it is out in public, trade secret protection won't seem to apply. For the same reason that car makers lose trade secret protection when they take their vehicles out in public for testing. They might disguise it, but that make no difference. It is also irrelevant that someone knows that it is considered a trade secret. Anything someone can discern from observing the vehicle, while it is in the public, is fair game. If this was not the case, you would have the car makers suing every publication every time pictures and info of test vehicles that are seen in public are published, especially if they took steps to disguise the vehicle. The publication knows it isn't meant to be public yet, but because the information was discovered as a result of the vehicle being in the public, it is fair and legal.
Does this cover all of the pictures that Giz published? Probably any of the exterior. Once they disassembled it, that might change the equation. They could argue that they intentionally disassembled only as far as a technician would without causing physical harm to it and intentionally did not expose parts that Apple has used extra precautions to prevent being seen. But, they did not simply take and publish information that was readily discoverable simply by the phone being in the public. They had to take the extra steps of disassembly and this is what might bite them in the ass.
Actually, the manner in which it was lost isn't particularly relevant.
What MIGHT be relevant is whether Gizmodo knew it was an Apple trade secret. Since they spent $5 K on it AND took it apart AND identified it as a prototype 4G phone on their web site, they knew what it was - and therefore knew it was a trade secret.
Under NY AND CA law, they're guilty. It's about as close to a slam dunk as these things get.
CA:
http://www.ndasforfree.com/UTSA.html
NY:
http://www.citmedialaw.org/legal-gui...s-law-new-york
Sorry, they're almost certainly guilty - their $5 K payment, immediate disassembly, and publishing that it was a 4G phone is about 99% of the proof needed. It won't be hard to get the rest.
Actually, skimming the links you posted, how it was lost becomes very important. Critical in fact.
from the UTSA:
(1) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means.
(2) "Misappropriation " means: (i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
How the finder came into possession is important, because it is the key factor in the very first definition. Did he come into possession of it through 'improper means'?
Since the definition of 'misappropriating' depends on how it was acquired, it would seem you are quite wrong in dismissing how it was found (acquired).
Also in your links, they discuss efforts to keep it secret. This is up to a court to decide, but it seems that an argument could be made that slightly tighter restrictions on the usage of the prototype phones could have prevent this fiasco and still been reasonable. There is no need for an employee to bring the phone to a bar where he intends to drink. It would have been reasonable to prohibit this. There are other steps that could have been implemented. The argument would be, were reasonable steps take to ensure its secrecy was maintained? Maybe. Maybe not. If not, no trade secret case, period.
Once it is out in public, trade secret protection won't seem to apply. For the same reason that car makers lose trade secret protection when they take their vehicles out in public for testing.
You are 100% wrong. I do this for a living.
You lose protection ONLY ON THE VISIBLE ITEMS when you take it out in public. If a car manufacturer takes a new car out in public without designing it, you are free to take pictures.
If, however, that car has a Micro-Fusion reactor driving the wheels which is not visible from outside the engine compartment and they do not disclose it, the fact that they drove it in public is 100% irrelevant.
Actually, skimming the links you posted, how it was lost becomes very important. Critical in fact.
from the UTSA:
How the finder came into possession is important, because it is the key factor in the very first definition. Did he come into possession of it through 'improper means'?
Since the definition of 'misappropriating' depends on how it was acquired, it would seem you are quite wrong in dismissing how it was found (acquired).
Also in your links, they discuss efforts to keep it secret. This is up to a court to decide, but it seems that an argument could be made that slightly tighter restrictions on the usage of the prototype phones could have prevent this fiasco and still been reasonable. There is no need for an employee to bring the phone to a bar where he intends to drink. It would have been reasonable to prohibit this. There are other steps that could have been implemented. The argument would be, were reasonable steps take to ensure its secrecy was maintained? Maybe. Maybe not. If not, no trade secret case, period.
Stick to your day job.
The fact that they disguised the phone AND have a written and enforced policy regarding disclosing information (look at the guy who got fired for showing the iPad to Woz) is more than sufficient.
As for your definitions, read the relevant part of the NY law:
"Under New York law, misappropriation consists of use or disclosure of a trade secret that was acquired through a relationship of trust (such as employment), or through fraud or other improper means, such as theft, bribery, or hacking. This definition appears to include publishing a trade secret while knowing that your source obtained it through improper means or in breach of a confidentiality agreement."
Gizmodo knew it was Apple's prototype phone at the time they published the article. They knew that they paid someone $5 K for a phone that was allegedly found on a bar stool - which clearly fits the definition of theft in both CA and NY. More importantly, they knew 100% that the 'finder' did not have the authority to sell an Apple prototype phone. Yet they published trade secret information, anyway (the inside of the phone, for example).
Even a C- law school graduate right out of school could win this one for Apple. And you can be sure that if they decide to prosecute that they' won't be using a kid right out of school.
You are 100% wrong. I do this for a living.
You lose protection ONLY ON THE VISIBLE ITEMS when you take it out in public. If a car manufacturer takes a new car out in public without designing it, you are free to take pictures.
If, however, that car has a Micro-Fusion reactor driving the wheels which is not visible from outside the engine compartment and they do not disclose it, the fact that they drove it in public is 100% irrelevant.
You do what for a living? Take partial quotes from people to misrepresent what they said? Nice job, must be fun. Let's look at what I actually said.
Once it is out in public, trade secret protection won't seem to apply. For the same reason that car makers lose trade secret protection when they take their vehicles out in public for testing. They might disguise it, but that make no difference. It is also irrelevant that someone knows that it is considered a trade secret. Anything someone can discern from observing the vehicle, while it is in the public, is fair game. If this was not the case, you would have the car makers suing every publication every time pictures and info of test vehicles that are seen in public are published, especially if they took steps to disguise the vehicle. The publication knows it isn't meant to be public yet, but because the information was discovered as a result of the vehicle being in the public, it is fair and legal.
Does this cover all of the pictures that Giz published? Probably any of the exterior. Once they disassembled it, that might change the equation.
I mean, really, at least try to keep your argument honest.
As I said, the disassembly would be in question. But pictures of the exterior, after it was left in a public place? You honestly consider an leaving an item in a bar to be a reasonable effort to keep it secret?
Stick to your day job.
Could I try for yours? Using reason and logic can tiring. Yours seems like more fun.
The fact that they disguised the phone AND have a written and enforced policy regarding disclosing information (look at the guy who got fired for showing the iPad to Woz) is more than sufficient.
yeah, just look at the guy that got fired. And then use your brain and look at the guy that didn't get fired. he didn't get fired, which by your logic means he didn't violate those 'written and enforced' policies. Polcies which then allowed teh device to be observed in public?
(You really do this for a living? Really?)
As for your definitions, read the relevant part of the NY law:
"Under New York law, misappropriation consists of use or disclosure of a trade secret that was acquired through a relationship of trust (such as employment), or through fraud or other improper means, such as theft, bribery, or hacking. This definition appears to include publishing a trade secret while knowing that your source obtained it through improper means or in breach of a confidentiality agreement."
Gizmodo knew it was Apple's prototype phone at the time they published the article. They knew that they paid someone $5 K for a phone that was allegedly found on a bar stool - which clearly fits the definition of theft in both CA and NY. More importantly, they knew 100% that the 'finder' did not have the authority to sell an Apple prototype phone. Yet they published trade secret information, anyway (the inside of the phone, for example).
Oh, so then how it was acquired does matter. Gotcha. (really, you do this for a living?) So then we agree, regardless of what you previosuly said. (for a living?)
Seems to me that Apple needs to be careful here. They might just end up creating an incentive to sell a future iDevice prototype to somebody who isn't based in the US and who won't be so cooperative as to give the device back.
Huh? The concept of theft is pretty universal and most western countries reciprocate with each other for criminal offenses. Even if you were to or ran to some place like China I don't think you would automatically be "safe".
Certainly Apple might go along with criminal charges, just not a huge lawsuit. Let the bad karma points kill off advertising and any company wanting to give them review copies/units (Apple certainly won't anymore or invite them to any of their press stuff). That will hurt pretty bad.
I was listening to Merlin Mann on the 5by5 podcast and he made an excellent point - Apple has up to three years to prosecute. So, wait until June or whenever the next iPhone update is and then I think Apple will whack them. And whack them hard. They have them criminally, and under the CA trade secrets law they have them civilly. They are so blatantly in the wrong, and they admitted it in their own statements on multiple occasions! They are (and should be) toast.
But not until after the next iPhone gets released. Right now I'm sure Apple just want's this to blow over.
What we do know is that Gizmodo "outed him". And that's what I've been thinking about. Until Gizmodo caused Gray's name to be splashed all over the internet, Gray wasn't a "public figure". Since Gray was not a public figure, Gray has a reasonable expectation of privacy. In fact, he has a Constitutional RIGHT to privacy. From the California Constitution:
Article 1, Section 1
"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
Now, if Gray had voluntarily shared the prototype iPhone with a blogger, or if Gray had broken any laws to cause that information to be shared, then Gray's right to privacy could have been lost because he caused himself to become a news story, in essence, a public figure. But is the simple act of losing an iPhone enough to cause Gray to become a "public figure"?
I think not. Gray did nothing proactive to abandon his right to privacy. He simply lost an iPhone (or he was relieved of it without his knowledge). And, while a "found" prototype iPhone may be a news story that many want to read about, going into the private contents of that device and turning personal information found there into a news story seems to be a violation of privacy. The person that "found" the iPhone had no right to share that personal information with anyone. The only justification that person has for looking at the data on the iPhone is to return the iPhone to the rightful owner. That person reportedly looked through the data on the iPhone enough to find Gray Powell to be the owner, but made no attempt to return the iPhone to Gray Powell. Instead, according to Gizmodo's story, that person reported Gray's name to Gizmodo. And we know what happened after that.
It seems to me that the person that found the iPhone violated Gray Powell's Constitutional Rights by sharing private information with Gizmodo. Less clear to me is whether Gizmodo also violated Gray Powell's Constitutional Rights by making that information public.
At this point however, I wouldn't be surprised to see a civil lawsuit brought by Gray Powell naming John Doe and Gizmodo as defendants for violation of his Constitutional Right to Privacy.
Sadly, there are still people that ignorantly believe Gray Powell is to blame for all this. Which, of course, is ridiculous. That's like having a pedestrian on the sidewalk getting hit by a car being driven by a drunk and then blaming the accident on the pedestrian because he was on the sidewalk when the car was there.
Mark
what i most find offensive in Gizmodo's action is outing the Apple engineer who lost the phone. I really see no benefit whatsoever even in the journalistic sense. Not only do they reveal his name, displayed his photo but also went as far as posting his private messages. Whatever integrity that Gizmodo writers had before this incident they've now been flushed down the toilet.
I do wish for the engineer to file a civil suit on the grounds that his privacy has been compromised.
+1
I think Apple is going to whack Gizmodo - it will just be after the iPhone launch. If they don't, they would be seen more as condoning this, and I don't think they want that at all.
Gizmodo/Gawker has left them so much to show clear intent, and a clear pattern of the blatant disregard for the law, it would be crazy for them to not follow through.
That and the letter to Gizmodo coming from the head of Apple's Legal, and not the normal attorney's working for Apple who send cease and desist letters, is a clue as to just how seriously Apple is taking this.
It's far from over. We won't see anything today, but there will be real fireworks this summer - that's for sure!
What we do know is that Gizmodo "outed him". And that's what I've been thinking about. Until Gizmodo caused Gray's name to be splashed all over the internet, Gray wasn't a "public figure". Since Gray was not a public figure, Gray has a reasonable expectation of privacy. In fact, he has a Constitutional RIGHT to privacy. From the California Constitution:
Mark
He did something newsworthy, and he became news.
There is no violation of rights.
If you do something that becomes international news, then YOU become international news. His name is nothing more nor less than a fact that is news.
Unfortunately, in this case, if you aren't against Gizmodo then you must be against Apple.
Not hardly. I am not against Gizmodo. But that has nothing whatsoever to do with Apple.
Had the prototype been a Ford or a Dell or a Sony or a Nokia, I'd feel exactly the same way.
If Apple had filed the criminal complaint, wouldn't that be public knowledge by now? Also, unless it was specifically requested by the 'injured party' (in this case Apple), I would have to believe that Santa Clara police have cost-benefit trade-offs to make: I'll bet this is far from the most pressing law enforcement issue in that town/county.
Apple has three years to do so. What makes more sense - do it now and continue the fuss they have little control over about an unreleased product?
Or wait until the product is released when the press over the issue doesn't matter, and then go for it?
I think the easy choice is the latter. Apple gains nothing by letting this go. I don't think this is over - not by a long shot.
If that's what he's saying, he's 100% wrong. PLEASE make some effort to learn something about the law before spouting off any further.
The brightline case regarding inadvertent disclosure outside trial deals narrowly with disclosure of a secret customer list. Defiance Button Machine Co. v. C&C Metal Products Corp., 759 F.f2d 1053 (2nd Cir. 1985). The possessor of a trade secret must take "reasonable measures" to protect its secrecy. See id. at 1063, quoting Milgram on Trade Secrets. "[T]he owner is entitledb] to such protection only as long as he maintains the list in secrecy;upon disclosure, even if inadvertent or accidental, the information ceases to be a trade secret and will no longer be protected." Id. While Defiance Button speaks specifically to disclosure of a customer list, other cases involving a wide range of trade secrets and types of disclosure have relied heavily on it. A Second Circuit district court stated that accidental or inadvertent disclosure will result in loss of status when deciding a case involving an electronic photographic retouching and imaging system. Julie Research Laboratories, Inc. v. Select Photographic Engineering, Inc., 810 F. Supp. 513 (S.D.N.Y. 1992). "The adequacy of the measures taken to protect the secrecy of the product is a fact question." Id. at 520. It should be noted that the appellate court reversed the damages awarded at the district court level; however, it left the dicta regarding loss of trade secret status untouched.
http://cyber.law.harvard.edu/openlaw...General_8.html
I don't think they are ridiculous. If anything there are more people giving Gizmodo the benefit of the doubt than they deserve.
The reason for all the "hate" against Gizmodo is that they are all colossal jerks and have behaved like spoiled kids (with a potty mouth to boot), for years now. Also, whenever they performed one of their "hi-jinks" they usually got people defending them saying that they were basically good kids etc., so you can't say people haven't in general given them a break even when they didn't deserve it.
If someone with impeccable moral credentials makes a mistake like this (buying stolen goods, exposing trade secrets etc.), simply because they don't understand the law, and then apologises profusely, they probably wouldn't get into any trouble at all.
Gizmodo on the other hand has a horrible record morally speaking and they've done similar things in the past. They did this particular deed on purpose, in full knowledge of how wrong it was, and then thumbed their noses at everyone concerned. They were smug about it. They were mean about it. They blamed others for their own crimes. They covered up the identity of the original thief. They blamed the Apple employee who was the chief victim of the crime.
Excellent post - well worth repeating. What I find "breathtaking" is the people defending Gizmodo
The problem is Gizmodo people are not journalists. They are part of a blog.
IMHO they are scum that don't deserve page hits.
Not sure how you can say tgatvwhen they get some if the too scoops. Personally, I'm wondering where the nano phone is. Patients had it like the square nano x two that folded over. No crime if they bought it from sine that found it. A crime committed if they paid someone to steal it from the campus. Just like ipad rev two and three, they will becsi much better. Everyone knows June and July = new phones.
I really wish some of you would listen to your nonsense.
Wow, you need a mirror...
People steal/find things all the time.
Yup, two wrongs make a right
Beginning with Steve Jobs and the Xerox UI he stole.
Apple paid Xerox for access to their lab. It was a common practice at the time when companies had stuff they didn't know what to do with, they would sell access to others. Apple didn't steal anything, yet this idiotic meme somehow survives on the Internet.
All you do by repeating it is reveal just how ignorant you are.
had a president that stole 2 elections
Now we pass from ignorance into tin foil territory. Nice.
Do you really think only Giz would've acted that way? Giz was probably the only one with the balls to investigate and it paid off.
Uh, yes we know they were the only ones to ac this way because other sites like Engadget turned the "sellers" down.
Because it was the right thing to do.
Nothing is gonna happen to them except not get invited to any Apple events. Big deal. There are still many tech companies that will have them.
Why don't we reserve judgment until this works it's way out? Apple has three years to do something - I have a pretty strong feeling that after the next generation iPhone launches, things will get interesting.
The suggestiont that it is reasonable and ethical for Gizmodo to encourage theft of private property (by offering the reward in the first place) and then pay for stolen property ?all in the interests of journalism? is reprehensible.
Bingo! This is the crux of the matter. Criminal intent - all the armchair lawyers in this thread need to go look that one up. Think of it as a bonus multiplier - but without the positive connotations
It's not over, not by a long shot...
Now that the mother of all inside Apple news comes out you're all up in arms. You're all hypocrites
Actually, if you want to set aside the legality/morality of their actions they kind of screwed that up too, now didn't they? We really didn't learn anything new other than confirming a front facing camera (which Engadget and others had already reported) and that it was smaller.
Woo! What a coupe! They had it physically in their hands and they were able to tell us very little, other than what had already been speculated.
In a year we'll have to ask them if it was really worth it...