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Apple Demands Prototype iPhone Back

marcfogel said:
Lets assume the guy left it in the bar, in the open. This guy is an employee of Apple. Who revealed trade secrets, Gizmodo or the employee.
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Based on my experience if I was that careless with an unreleased product and lost it, I would be totally screwed and could be liable for millions in damages.

That does not insulate Gizmodo however and they are still liable for accepting stolen property and revealing trade secrets.
 
Subby needs to work work on his/her reading skills...

"formal request" != "Demand"
 
marcfogel said:
Lets assume the guy left it in the bar, in the open. This guy is an employee of Apple. Who revealed trade secrets, Gizmodo or the employee.
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Gizmodo. Trade secrets law says that an inadvertent disclosure does not nullify the trade secret as long as the company continues to take steps to keep it secret. An inadvertent loss of this device - assuming for argument's sake that this phone was in fact just lost, although I have very big doubts about that - does not breach the trade secrets.

It doesn't matter anyway. The law affords great leeway to news organizations to report on what technically qualifies as trade secrets. Apple would have a big fight on its hands if it tried to sue Gizmodo and it would probably lose. Which doesn't mean what Gizmodo did was right. I absolutely condemn it for paying for this device because I think they paid a thief, not a good Samaritan, who fooled them. What a bunch of idiots.
 
cmaier said:
Gizmodo. They published it. The guy who accidentally left it in a bar was careless, but he didn't intentionally reveal anything. And even if he HAD intentionally revealed it, they are not HIS trade secrets, and Gizmodo knew that Apple wouldn't intentionally reveal this information and that it was trade secret, yet they chose to publish it. The passage I cited explains all this.
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I read it. I am not so sure it is that cut-and-dry.

I do find this interesting
 
ddarko said:
Gizmodo. Trade secrets law says that an inadvertent disclosure does not nullify the trade secret as long as the company continues to take steps to keep it secret. An inadvertent loss of this device - assuming for argument's sake that this phone was in fact just lost, although I have very big doubts about that - does not breach the trade secrets.
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ddarko. If the rules regarding trade secrets are indeed as all-encompassing as you describe. That places the press in a very weak position.

A company could claim *anything* to be a trade secret. And the company could then prevent publication.

C.
 
Any chance Gizmodo was getting it back for Apple?

Whatever is going on, There has to be a story behind this story!
 
cmaier said:
Gizmodo. They published it. The guy who accidentally left it in a bar was careless, but he didn't intentionally reveal anything. And even if he HAD intentionally revealed it, they are not HIS trade secrets, and Gizmodo knew that Apple wouldn't intentionally reveal this information and that it was trade secret, yet they chose to publish it. The passage I cited explains all this.
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I do not get it. Why exactly does Gizmodo have an obligation to keep Apple's (or anyone else's to this matter) secrets?
 
cmaier said:
Ok. Here's the fun part. If they slump more than they did last year, guess who's responsible. (More accurately - guess who's going to have to explain why they're not responsible.) And if the iphone HD launch goes worse than previous launches, guess who's responsible for that.

Gizmodo is going to find itself where ThinkSecret is unless they get real lucky.
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If people don't like the final product they won't buy the product.
Flawless secrecy and a perfect unveiling doesn't guarantee people will buy anything. (Yes, some foolish die-hard fans will part with their money just for the shiny logo, but they're not the norm.)
If seeing the external design of a product before unveiling means their sales will slump, then nothing was going to be driving their sales other than the "shiny new toy" factor. And when it comes to high end gadgets, they tend not to be impulse buys.

If I show you **** on a shingle now and tell you that you can't buy it for another two hours, would have allowing immediate purchase made you any more willing to buy it?
(And don't get a sandy vagina. I'm not saying the iPhone is **** on a shingle. I'm making the point that it's not the unveiling that makes the product or drives main sales.)

Basically, if Apple's next iPhone doesn't sell well it wouldn't have been due to a leaked prototype. It'll be because the final product wasn't what people wanted. (I personally believe it'll sell quite well)
 
Carniphage said:
ddarko. If the rules regarding trade secrets are indeed as all-encompassing as you describe. That places the press in a very weak position.

A company could claim *anything* to be a trade secret. And the company could then prevent publication.

C.
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The press can print matters of public interest (a new phone doesn't qualify) regardless. And not "anything" is a trade secret. Trade secrets are defined as secrets which give you a competitive advantage and which you expend reasonable efforts to try and keep secret. The plaintiff has to prove it actually is a trade secret.
 
Carniphage said:
If you accept that - then you accept that they also sat on the story for a week or more.

Why would they do that?

C.
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According to Gruber:
Asked whether he’s concerned his company may have committed a crime in buying the phone, Denton says that Gaby Darbyshire, Gawker Media’s chief operating officer, researched the relevant case law and came away satisfied that Gizmodo was in the clear.
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Looks like they held on to it until they can got a legal opinion (of course why they would ask a formal English trial lawyer instead of a relevant CA attorney is beyond me).

There is no evidence that Gizmodo ever intended to give it back unless Apple legal asked them (which I expect they probbaly planned on it). But if they thought that what they had wasn't illegal, why return it?
 
lilo777 said:
I do not get it. Why exactly does Gizmodo have an obligation to keep Apple's (or anyone else's to this matter) secrets?
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Most simply, because to do otherwise is theft and poisons the free market. A little more specifically: anything else leaves open a loophole where a competitor can arrange with a third party for that party to "happen upon" secrets, through an intermediary, which it may then reveal at will with no repercussion. This was (and still is, some would say) a common scenario and hence the law addresses it specifically.
 
Carniphage said:
If you accept that - then you accept that they also sat on the story for a week or more.

Why would they do that?

C.
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Because they can claim they didn't publish any trade secrets, since all the secrets were already publicly known after having been published by other blogs.
 
They bought stolen goods. They never contacted Apple that someone was trying to sell them a possible iphone prototype.
 
This very well may be a controlled leak. Apple is notorious for doing this. That is why Ole Steve-0 jobs is such a great salesman!! Whether it's what will be next, well it is very close. Apple only hands put "prototype" releases to select individuals when they PRETTY MUCH know what they are going to release to the public. This is there Beta phase. Clearly the last push before the release in June. Don't have to be worried about loosing it. It's there property, which is required to be returned if "found or stolen" just like anything else or be punished. That's why they were very formal, straightforward and didn't mention any punitive damages (which is clearly step two if needed)
 
Carniphage said:
ddarko. If the rules regarding trade secrets are indeed as all-encompassing as you describe. That places the press in a very weak position.

A company could claim *anything* to be a trade secret. And the company could then prevent publication.

C.
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I agree with you which is why the U.S. Supreme Court has said the press have a First Amendment protection to publish lawfully obtained info - even if they are trade secrets. Apple CANNOT sue Gizmodo for disclosing trade secrets (well, it can sue but it would lose) even though Gizmodo did disclose trade secrets. Case law says the press can do that. The wrinkle in this matter is that Gizmodo paid for the device and it has a long-standing policy of paying for info.

Everyone needs to read up on what happened several years ago when Apple sued Think Secret - remember that site? - for allegedly publishing trade secrets. Ultimately, that case was resolved with a settlement and the legal issues were not settled in court. However, it was clear to legal observers that had it gone to a judge, he would have ruled in Think Secret's favor if he concluded that Think Secret, a site run by a college student, qualified as a news organization. I don't think anyone dispute Gizmodo is a news operation. The wrinkle is their payment, which is why Gizmodo is staying mum about that $5000. Their lawyers probably told them to shut up (that's what I would tell them if they retained me as counsel).

cmaier said:
Because they can claim they didn't publish any trade secrets, since all the secrets were already publicly known after having been published by other blogs.
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No, incorrect legal analysis. News orgs can publish trade secrets even if there was no prior public disclosure. Besides, Gizmodo did publish trade secrets that most certainly were NOT published by other blogs. Engadget showed photos of the outer case and a couple details. Gizmodo did a full breakdown and revealed lots more info that Engadget that did not publish.

But it doesn't matter; case law carves out an exception to trade secrets laws for journalists.
 
ddarko said:
I agree with you which is why the U.S. Supreme Court has said the press have a First Amendment protection to publish lawfully obtained info - even if they are trade secrets. The wrinkle in this matter is that Gizmodo paid for the device and it has a long-standing policy of paying for info.

Everyone needs to read up on what happened several years ago when Apple sued Think Secret - remember that site? - for allegedly publishing trade secrets. Ultimately, that case was resolved with a settlement and the legal issues were not settled in court. However, it was clear to legal observers that had it gone to a judge, he would have ruled in Think Secret's favor if he concluded that Think Secret, a site run by a college student, qualified as a news organization. I don't think anyone dispute Gizmodo is a news operation. The wrinkle is their payment.
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I don't think you're correct. The supreme court has generally only said you can publish trade secrets that are "matters of public concern." (403 U.S. 713, 510 U.S. 1315). This certainly wouldn't qualify. I'm not an expert on all the case law though - what case are you thinking of?
 
Selenius said:
This very well may be a controlled leak. Apple is notorious for doing this.
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This is not a controlled leak like what Apple has done in the past. When Apple wants to leak something it's by phone to a contact at places like the New Yoke Times or The Washington Post. Not Gizmodo and not by loosing prototypes.
 
cmaier said:
I don't think you're correct. The supreme court has generally only said you can publish trade secrets that are "matters of public concern." (403 U.S. 713, 510 U.S. 1315). This certainly wouldn't qualify. I'm not an expert on all the case law though - what case are you thinking of?
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"Public concern" is defined VERY broadly. It's not just the Pentagon Papers, it also encompasses news about who Jennifer Aniston is dating. Basically, public concern means whatever the public is interested in, not what is worthy or meritorious of public attention. Judges don't want to be in the business of deciding what is or is not of legitimate public interest so this phrase has basically come to mean "whatever the public is interested in." Gizmodo's news falls somewhere in between; news about an upcoming product from the the third largest publicly traded company in the U.S. (measured by stock capitalization) would most certainly qualify as "public concern" even under a stricter test. If leaks about future business plans of public companies didn't qualify as a public concern, then Bloomberg, Reuters, Fox Business, etc. would all be sued out of existence.
 
ddarko said:
No, incorrect legal analysis. News orgs can publish trade secrets even if there was no prior public disclosure. Besides, Gizmodo did publish trade secrets that most certainly were NOT published by other blogs. Engadget showed photos of the outer case and a couple details. Gizmodo did a full breakdown and revealed lots more info that Engadget that did not publish.

But it doesn't matter; case law carves out an exception to trade secrets laws for journalists.
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I'm happy to be corrected, Counselor, but please provide a citation to the case(s) you are thinking of. NY Times v. US and CBS v. Davis clearly only apply to matters of public concern. The California supreme court has ruled against you, e.g. in DVD Copy Control Association v. Bunner.
 
I think it's absolutely disgusting that they published that page with his photos and personal links, the telephone conversation transcript and even a box to "send a message" to him on Facebook! That is just disgusting tabloid behavior and was completely unnecessary. And gee whiz, why don't they publish the name of the person who chose to sell it for $5,000.

There is no doubt in my mind that the person who was originally entrusted with the unreleased phone would have signed a huge pile of legal agreements which he will have to face up to in one way or the other. That tech site's actions in regards to him were pure d-baggery.
 
ddarko said:
If product leaks of public companies didn't qualify as a public concern, then Bloomberg, Reuters, Fox Business, etc. would all be illegal.
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There is a difference though, those guys don't go out and buy protype items, disassemble them and act as though they can do what they want with them. They will report rumors or cited reports that were given to them. There is a fine line IMO and buying a hot item like Gizmodo did is crossing the line.
 
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