Apple Demands Prototype iPhone Back

[cmaier]

"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 illegal.

Again, can you cite some case law that a matter of public concern could be interpretes so broadly? The DeCSS code was found not to be a matter of public concern in the case I cited. There's another case that says a restaurant's recipes aren't a matter of public concern. There is another case that says, in dicta, that engineering specs are only a matter of public concern if they, for example, involved public safety.

 

[ddarko]

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.

We agree, I think the payment - and Gawker/Gizmodo LONGSTANDING POLICY of paying for info - is what could get them into trouble. This is one of the reasons why most news orgs don't pay for info. Even Think Secret, which Apple did sue for publishing trade secrets, didn't pay for its scoops. Gizmodo does and did pay, which Apple's very able lawyers could pounce on, should they choose to take it to court.

 

[Lershac]

Good Lord

All this THEFT and TRADE SEKRETS!!!! OMGWTFBBQ!


Apple will get their device back and that will be the end of it... wait and see.

 

[cmaier]

We agree, I think the payment - and Gawker/Gizmodo LONGSTANDING POLICY of paying for info - is what could get them into trouble. This is one of the reasons why most news orgs don't pay for info. Even Think Secret, which Apple did sue for publishing trade secrets, didn't pay for its scoops. Gizmodo does and did pay, which Apple's very able lawyers could pounce on, should they choose to take it to court.

What is your legal basis for saying that somehow paying for the information changes things? What cause of action are you thinking of, and which element of that cause of action does the payment satisfy?

 

[zub3qin]

I do not get it. Why exactly does Gizmodo have an obligation to keep Apple's (or anyone else's to this matter) secrets?

Because in this twisted world we seem to live in, everyone has to blame someone else for their mistakes. It can't be apple's fault for having seemingly lax security with this top secret device. It can't be the fault of gray powell for losing the device in a bar while drinking beer.

Gizmodo did nothing wrong and to those that think that steve jobs will reserve a seat next to him with a free iPhone thrown in simply for stating so, if you don't like spy shots and rumors, then don't read macrumors or gizmodo!

 

[Peace]

All this THEFT and TRADE SEKRETS!!!! OMGWTFBBQ!


Apple will get their device back and that will be the end of it... wait and see.

The only thing Apple is getting is free advertising. There is no way in the world TWO prototypes get "lost".

 

[pdjudd]

We agree, I think the payment - and Gawker/Gizmodo LONGSTANDING POLICY of paying for info - is what could get them into trouble.

I think it could be argued that their payment can be argued as intent - they paid money for a physical product with trade secrets. They knew what they were getting.

 

[coleridge78]

Because in this twisted world we seem to live in, everyone has to blame someone else for their mistakes. It can't be apple's fault for having seemingly lax security with this top secret device. It can't be the fault of gray powell for losing the device in a bar while drinking beer.

Gizmodo did nothing wrong and to those that think that steve jobs will reserve a seat next to him with a free iPhone thrown in simply for stating so, if you don't like spy shots and rumors, then don't read macrumors or gizmodo!

Yes. We should encourage theft of people's personal property, like phones, and we should also encourage trying to undo the hard work of everyone who would like to create something and bring it to market.

The reactionary anti-apple trolls don't realize this isn't about Apple. It's about people STEALING. If you think this is hunky-dory, you are not allowed to complain when I hang out in your parking lot at work, wait for the one day you leave your car unlocked, and drive away in it.

 

[cmaier]

Because in this twisted world we seem to live in, everyone has to blame someone else for their mistakes. It can't be apple's fault for having seemingly lax security with this top secret device. It can't be the fault of gray powell for losing the device in a bar while drinking beer.

Gizmodo did nothing wrong and to those that think that steve jobs will reserve a seat next to him with a free iPhone thrown in simply for stating so, if you don't like spy shots and rumors, then don't read macrumors or gizmodo!

The law is this way so as to eliminate the incentive for theft. Otherwise I could be incentivized to go break into Coke's headquarters and steal the secret recipe in order to sell it to CNN.

"Gizmodo did nothing wrong?" Funny how no legitimate news organization pays for news, isn't it?

 

[bergmef]

Forget all this crap, did it have the new qualcomm gsm/cdma chip in it? Did the battery measure any larger? Is the back glass for touch controls? For more antennas (cdma?)

 

[Shin3r]

The First Amendment's "freedom of speech"/"freedom of the press" is applicable only to government entities.

You should go back to school and figure out what the first amendment is all about. Seriously, that was about the stupidest thing you could have ever written.

 

[coleridge78]

You should go back to school and figure out what the first amendment is all about. Seriously, that was about the stupidest thing you could have ever written.

Explain. You're wrong, so it will be interesting.

 

[rcandre2]

Well I think I have too much time on my hands as I've been following this story all over and been reading the majority of the posts. I can now give my worthless opinion and say that I think this was completely staged and not an "accidental loss" of the phone. Anyways.... I want one!

 

[PBG4 Dude]

Forget all this crap, did it have the new qualcomm gsm/cdma chip in it? Did the battery measure any larger? Is the back glass for touch controls? For more antennas (cdma?)

The battery did measure larger and was removeable.

 

[cmaier]

The battery did measure larger and was removeable.

ALthough there was speculation that it was removable, I didn't notice that Gizmodo confirmed that - in fact, the speculation assumed that the pinhole was for releasing the battery, but gizmodo said it was a background noise cancelling mic.

Did I miss where Gizmodo confirmed a removable battery?

 

[djdole]

They bought stolen goods. They never contacted Apple that someone was trying to sell them a possible iphone prototype.

How do you know they never contacted Apple? Are you aware of every communique and action of every Giz employee at every moment?

Additionally, Giz didn't know it was a prototype upon purchase. There are TONS of fakes out there. Giz is a tech news blog, investigating gadgets is their JOB.
Besides it wasn't until they opened it up and saw the engineering detail and branding that they ruled out it being the guts of an existing model in a fake case.
Even upon posting of their story they only had a very strong suspicion that it was legit.

Are you saying EVERYONE should report to Apple the presence of EVERY fake being sold on the off chance that it could be a secret prototype?
That would be an extreme waste of everyone's time (not to mention Apple's).
*points at rectangular drawing on a beach* Possible iPhone 3GSand prototype!

Consumer loyalty is good for the company, but that's it.
When it comes down to responsibility, it was the Apple employee that failed here, not Giz.

 

[SirHaakon]

Because in this twisted world we seem to live in, everyone has to blame someone else for their mistakes. It can't be apple's fault for having seemingly lax security with this top secret device. It can't be the fault of gray powell for losing the device in a bar while drinking beer.

Gizmodo did nothing wrong...

Amen, brother. There are only two people at fault here: Gray for being dumb enough to get drunk whilst in possession of secret, sensitive material, and Apple for clearly not doing enough background research on said drunk before hiring him.

If the phone was indeed just left out in the open, no one stole anything, and Gizmodo couldn't publish "trade secrets" because once the phone was removed from Apple and left for all to see, they're no longer secrets!!

All Giz did was pick up the scoop, which is what they're in business to do. Of course they should list the employee's name, it's NEWS just like any other headline. The guy isn't a minor, and he made the mistake. It's unfortunate, yes... perhaps even a bit sad, but he should've thought of that before he went out to get trashed with a fourth-gen iPhone in his pocket. Assuming all of this is accurate information, of course.

Sorry, no sympathy for people who drink and do stupid things or companies who hire people who drink and do stupid things. Gizmodo is completely in the clear here.

 

[marcfogel]

The law is this way so as to eliminate the incentive for theft. Otherwise I could be incentivized to go break into Coke's headquarters and steal the secret recipe in order to sell it to CNN.

"Gizmodo did nothing wrong?" Funny how no legitimate news organization pays for news, isn't it?

But no one broke into anything. This device was left in the open by an Apple employee.

I recall, a man who left his thumb drive in a computer. Someone checked it to see if he could find evidence of who owned it. Instead he found child porn on it an alerted the authorities. The owner of the drive was arrested. He did try to get the evidence squashed. The judge ruled that since the drive was left out in the open he gave up his right to privacy.

I guess the question is did apple have the right to privacy regarding the device left in the bar.

I am not a lawyer nor do I play one on TV!

 

[Reed Rothchild]

At least in this case the hapless employee is still around to tell his tale.

Remember what happened last time an iPhone prototype went missing?


Last Thursday, 25 year-old Sun Danyong committed suicide after a fourth-generation iPhone prototype he was responsible for went missing. It’s a story, from what tech-industry friends in China tell me, of how Apple’s secretive ways send extreme pressure all the way down the company’s international supply chain. source

Looks like this time the Jobsian Cult have exercised some benevolence towards the culprit. Let us pray that he still has his job (as well as his limbs, etc).

 

[ddarko]

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.

Bartnicki v. Vopper, 532 U.S. 514 (2001) and the NYT and CBS cases. The CBS case may not be worth much because of the weird way it was decided but it is notable for its extension of the New York Times case to trade secrets. Not sure why you assume this Gizmodo publication isn't a matter of public concern. I think it plainly is.

The Brunner case can be distinguished from this Gizmodo matter because that case turned on the CA Supreme Court's determination that the published decryption code "addressed matters of purely private concern and not matters of public importance" and "highly technical information [that] adds nothing to the public debate over the use of encryption software..." The court emphasize how the code was published in only certain Internet forums, of interest to only certain users, and cited other factors that led it to conclude it was of private concern. I think it would be very hard to argue this is closer to DeCSS than it is to Bartnicki (which concerned publication of an illegally intercepted wiretap).

Also Ford Motor Company v. Lane, 67 F. Supp. 2d 745, a district court case about an injunction to prevent a blogger from posting internal Ford documents and Religious Technology Center v. F.A.C.T.NET, Inc., 901 F. Supp. 1519, another district court case which dealt with the publication of a trade secret ("If a threat to national security was insufficient to warrant a prior restraint ... the threat to plaintiff's ... trade secrets is woefully inadequate.").

 

[cmaier]

Oh, nonsense. Doesn't even pass the laugh test. Gizmodo knew there was a good chance this was an Apple phone. It had an apple trademark on its back. It turned on and showed the "restore" screen.

And, your argument is a strawman - no, gizmodo had no duty to report it to apple UNTIL they took possession of it. Just as I have no duty to report a fake unless I take possession of the fake and I have reason to believe the fake is not a fake but is someone else's property.

How do you know they never contacted Apple? Are you aware of every communique and action of every Giz employee at every moment?

Additionally, Giz didn't know it was a prototype upon purchase.
There are TONS of fakes out there.
It wasn't until they opened it up and saw the engineering detail and branding that they ruled out it being the guts of an existing model in a fake case.
Even upon posting of their story they only had a very strong suspicion that it was legit.

Are you saying EVERYONE should report to Apple the presence of EVERY fake being sold on the off chance that it could be a secret prototype?

Consumer loyalty is good for the company, but that's it.
When it comes down to responsibility, it was the Apple employee that failed here, not Giz.

 

[ddarko]

Explain. You're wrong, so it will be interesting.

Trade secret protection is granted by a law passed by a government entity. First Amendment therefore applies and is a defense that's available to a news org. This is settled law.

 

[Ironworker808]

But no one broke into anything. This device was left in the open by an Apple employee.

I recall, a man who left his thumb drive in a computer. Someone checked it to see if he could find evidence of who owned it. Instead he found child porn on it an alerted the authorities. The owner of the drive was arrested. He did try to get the evidence squashed. The judge ruled that since the drive was left out in the open he gave up his right to privacy.

I guess the question is did apple have the right to privacy regarding the device left in the bar.

I am not a lawyer nor do I play one on TV!

You must have stayed at a Holiday Inn Express last night!

 

[freelancing]

Once it was bricked it's hard to say who owned it.

Let's step back and think of this as a car with LoJack on it. Someone leaves their car running while they run in to drop off some dry cleaning. Someone "finds" the car - totally lost with no owner. I mean, it's not like they carjacked anyone - they "found it" and possibly drove around looking for the owner. Then, they drive home and go to sleep. The next morning, they examine the car they found. Cool - it's a Dodge Viper. This might be worth some money. No -wait, it probably belongs to *someone* ... but wait again, the ignition switch has just been disabled. The person who found it clearly owns the car now - because it's been bricked. See - it doesn't seem so ambiguous when it's a car. It shouldn't change simply because it's something someone can slip into their pocket without anyone seeing.

 

[freelancing]

But no one broke into anything. This device was left in the open by an Apple employee.

I recall, a man who left his thumb drive in a computer. Someone checked it to see if he could find evidence of who owned it. Instead he found child porn on it an alerted the authorities. The owner of the drive was arrested. He did try to get the evidence squashed. The judge ruled that since the drive was left out in the open he gave up his right to privacy.

I guess the question is did apple have the right to privacy regarding the device left in the bar.

I am not a lawyer nor do I play one on TV!

The difference here is between privacy and ownership/possession. The phone was laying there. There would be nothing wrong for anyone to pick it up and examine it, trying to find the legitimate owner. Slipping into your pocket is another story. The guy who called police did not first take the thumb drive and see if he could sell the contents.