Why Gizmodo and the Finder commited theft
For the sake of argument, We'll presume that Gizmodo's statements are taken to be true and that this is in no way a publicity stunt. As to the finder. We'll call him "Lucky Duck"
Did Lucky commit theft of the Iphone?
As to finding lost property: "One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft." Cal. Penal Code §485. Pursuant to California Penal Code § 487(a), Grand theft is theft committed when the money, labor, or real or personal property taken is of a value exceeding four hundred dollars. In determining the punishment for such offenses, the value of the stolen property is the "reasonable fair market value." Cal. Penal Code §484(a). Grand theft is punishable by imprisonment not to exceed one year. Cal. Penal Code §489(b).
Here Lucky was in a bar and happened upon a phone that had been left by its owner. Lucky stayed in the bar "awhile" and after took it home to try another day. Mr. Duck discovered who the phone belonged to via the facebook app on the phone but was unable to find any other contact before the phone was remotely disabled. Lucky called Apple's general care number who (justifiably) don't know anything about prototype phones in the wild. After that, he gave up and cashed in to the highest bidder (Gizmodo).
Lucky will say that his actions were reasonable and just in trying to return the phone. Apple will assert that, given the nature of the property and the close proximity from the place of finding to Apple's headquarters, Lucky didn't come close to meeting this standard. A judge is likely going to agree with Apple.
Now on to Gizmodo. Did it commit receipt of stolen property?
We turn to California Penal Code §496(a): Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, ...shall be punished by imprisonment in a state prison, or in a county jail for not more than one year. Any person who has been injured by this crime may bring an action for three times the amount of actual damages sustained including costs of suit, and reasonable attorneys fees. Ca. Penal Code §496(c).
Here, Gizmodo, as a tech blog that cover Apple products closely, knew without a doubt that Lucky didnt have rights to the phone because his name isnt Steve Jobs. Lucky even told them that he found it, proof that he didnt have the rights to sell it. Gizmodo then paid $5,000 for the phone and has gone straight to work to paint this as Apples mistake. Assuming that Luckys actions constitute theft, Gizmodos actions fit the statute exactly.
Apple will be able to bring an action against Gizmodo or Lucky for three times the damages incurred (Ill leave that up to you to speculate that amount) plus costs and attorneys fees.
Gizmodo is banking on public opinion being in their favor but a line crossed is a line crossed. That phone represented millions in R&D and Apple has every right to control how its products are unveiled to the market. While we all enjoyed getting a sneak peak at the new phone, Gizmodo did this to make money and now they want to pretend they were just doing a public service. This aint no WikiLeaks video.
