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.
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?
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?)
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.
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.
I haven't 'leaned' anywhere. I am not defending them.
My apologies. I thought that you were defending them.
Quote:
Originally Posted by Tulkas
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.
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.
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.
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
@ 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.
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". :-)
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.
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.
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.)
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.
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.
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.
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
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.
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
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.
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
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.
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.
It seems like I got the point exactly, then. At least I think so.
I told the other guy that you aren't a "shill", a conclusion that is supported by your response. And I basically suggested that you like to dally a bit in argument when you have time to do so... a perfect reason for playing Devil's advocate. Is that not truly the case?
Your manner throughout this exchange is this: you are having fun with the debate, honing your skills at intellectual challenges, probing here, thrusting there. And then I said that that is just like us. And I have no problem with it. (Edit: except perhaps you called me out a little too harshly in the early goings because of misunderstandings.)
Was there some other point you thought I was making or that you meant to make?
Comments
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
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?
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
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.
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.
I haven't 'leaned' anywhere. I am not defending them.
My apologies. I thought that you were 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.
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
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
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.
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).
@ 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.
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
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
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
It seems like I got the point exactly, then. At least I think so.
I told the other guy that you aren't a "shill", a conclusion that is supported by your response. And I basically suggested that you like to dally a bit in argument when you have time to do so... a perfect reason for playing Devil's advocate. Is that not truly the case?
Your manner throughout this exchange is this: you are having fun with the debate, honing your skills at intellectual challenges, probing here, thrusting there. And then I said that that is just like us. And I have no problem with it. (Edit: except perhaps you called me out a little too harshly in the early goings because of misunderstandings.)
Was there some other point you thought I was making or that you meant to make?
Thompson