Legality of Gizmodo's Next-Generation iPhone Acquisition Examined

[cjmillsnun]

Problem: if the profit margin on the 3GS is $100 and the profit margin on the 4G is $150, there are no damages. No damages, no case.

Newer phone is likely to be more expensive to produce than 3GS which used 3G tooling for the case.

Also remember the newer phone has higher res screen (more expensive), bigger battery (more expensive) front facing camera (additional cost over 3GS), better rear camera (more expensive).

Therefore the newer phone is likely to initially have a smaller profit margin than the 3GS.

 

[troop231]

Or a competitor could have gotten it or it could have been sold to a competitor - that's a mighty big risk for a prototype to be "leaked" right?

Exactly, another reason why it's controlled and not an accident. If HTC was at the bar you know for sure they'd have to examine it.

 

[ct2k7]

You're missing my point... you have to say that Apple definitely sold this many fewer phones because of the leak. You have to go into court with a specific figure and a specific dollar amount that it cost you. The declining sales idea will be countered by the fact that sales decline every spring. And again, if the 4G has a higher profit margin than the 3GS - there are no damages, period.

They will most likely request a potential figure, and it would be more reasonable to request so. CMaier or BRBLawyer will be able to expand on this. At this stage, can you say that the sales are declining?

Given what we know, the device is going to cost more to manufacture - given that it is made of newer material, which could be some sort of glass or ceramic, which has a higher dielectric constant capacity.

 

[cjmillsnun]

Apple has the ability to route the call as necessary. There are four Apple phone numbers on the website. Should he have called the Apple Store? Jobs' house? I trust you have Jobs' number, yeah?

Point out the number he should have called.

It was found roughly 20 miles away from infinite loop.

Perhaps put it in an envelope marked with said engineers name and also marked private and confidential, and take it to reception at building 1.

 

[ghostface147]

Gizmodo is on my boycott list.

 

[troop231]

Unfortunately, a few of the staff at Gizmodo have questionable ethics.

Not to mention they have a guy named Jesus working for them

 

[SFC Archer]

The employee was a field tester - it's his job to go out and test prototypes in real-life situations. It was in a case that made it look like a 3Gs.

LINK...where does it say it was in a case made to look like a 3G??? Where does it say the employee was a field tester??? A classfied prototype is NOT tested in a BAR where all the patrons could see and ask questions. NOT an ANSWER.

It was his birthday and he was drinking. He accidentally left the phone. Apple could not track the device because that feature of MobileMe is broken in iPhone OS 4.

Remote Wipe is part of MOBILE ME...seems it worked just fine. Prototype is going to have a different software package then the 4.0 developer release. Sorry, FAIL again...not proof. By the way having a Birthday is no excuse to have a classified prototype in possession in a public place.

Apple could not risk that the phone enter into the wrong hands, so they wiped it, hoping that it would either be returned to them (The employee reported it missing to police and was calling the bar), or upon realising the phone would not work, the person who found it would just bin it or something.

Not even gonna bother with this one cause it makes no sense if they wiped it

 

[pdjudd]

Apple has the ability to route the call as necessary. There are four Apple phone numbers on the website. Should he have called the Apple Store? Jobs' house? I trust you have Jobs' number, yeah?

Point out the number he should have called.

This one would have been a good start:

Phone: Arrange a phone call with an Apple Expert who specializes in your exact question. Talk to us now or later at your convenience. We'll even call you.

Or even their corporate office:

Apple

1 Infinite Loop
Cupertino, CA 95014
408.996.1010

And ask for Apple Legal

He had lots of options outside of contacting law enforcement (being that this phone is above the minimum that the state requires) or the owner/manager of the bar.

 

[ShiftyPig]

They will most likely request a potential figure, and it would be more reasonable to request so. CMaier or BRBLawyer will be able to expand on this. At this stage, can you say that the sales are declining?

Was there not a story on the front page of a site called Macrumors.com that confirmed as much today?

It was found roughly 20 miles away from infinite loop.

Perhaps put it in an envelope marked with said engineers name and also marked private and confidential, and take it to reception at building 1.

Aha..... and there you reach the key phrase: reasonable. A reasonable effort doesn't mean you have to drive it back to the person.

 

[troop231]

Watch on announcment day the iPhone look completely different perhaps

 

[mcrain]

I would have showed up at Apple headquarters with photos and a few requests. I would have been happy to turn over the phone, but I would have inquired about a reward or better yet, a chance to meet with the legal department at Apple. Hi, here's the phone and my resume!

 

[lewisdorigo]

Apple has the ability to route the call as necessary. There are four Apple phone numbers on the website. Should he have called the Apple Store? Jobs' house? I trust you have Jobs' number, yeah?

Point out the number he should have called.

The guy looked at the facebook app that was on the phone. It was logged in. He remembered the name of the person who was logged in - he told it do Gizmodo, after all.

He could have easily posted a note on his facebook page saying "Hey, I found something that belongs to you".

Or, he could have opened up the Phone app and called someone who may have been able to point him in the right direction.

Or he could have handed it into the police like any normal person would. Phoning AppleCare would get you nowhere. They likely get thousands of such calls a day; claiming to have found a prototype device.

 

[cjmillsnun]

Remote Wipe is part of MOBILE ME...seems it worked just fine. Prototype is going to have a different software package then the 4.0 developer release. Sorry, FAIL again...not proof. By the way having a Birthday is no excuse to have a classified prototype in possession in a public place.

Remote wipe is also part of the exchange integration. If he was using exchange then that function is working in OS4.0

 

[troop231]

better yet, a chance to meet with the legal department at Apple

Barf in mouth, why not Steve Jobs instead? *My dream*

 

[mags631]

What? So, if the victim of the theft made the theft easier, the thief should get off? You leave your Macbook in the backseat of your unlocked car for the world to see and it gets stolen. The thief should get a pass because you were dumb enough to leave an invitation?

Apparently the original finder tried to find the owner. In this case, it's unclear to me whether it constitutes theft. I'm just saying whether it does or does not, it was shady -- so we are in partial agreement here.

 

[LagunaSol]

How did he steal a "Lost" phone? Who is at fault here?

"Finding" something doesn't grant ownership. If you come across an overturned armored truck, stuff your pockets with cash and then spend that cash, that's a crime.

The finder of this phone could easily have returned it to the rightful owner with a bit of common sense and reasonable effort. The moment he decided to sell it was the moment he crossed the line.

And Gizmodo is entirely complicit as well. And their endless milking of the situation has become embarrassing.

*Posted from my legitimately-owned iPhone*

 

[cjmillsnun]

Was there not a story on the front page of a site called Macrumors.com that confirmed as much today?



Aha..... and there you reach the key phrase: reasonable. A reasonable effort doesn't mean you have to drive it back to the person.

OK so mail it. Point being he KNEW who it belonged to. He could even name the engineer who had it in their possession. Therefore it's not reasonable steps to find out who owned it, because that was already known. You should then take steps to return it.

 

[pdjudd]

LINK...where does it say it was in a case made to look like a 3G??[\quote]
Gizmodo themselves asserted this.
? Where does it say the employee was a field tester???

The employee in question is an engineer testing the basband software - that is his official job.

A classfied prototype is NOT tested in a BAR where all the patrons could see and ask questions. NOT an ANSWER.

Cite please - they can be tested anywhere they want.

Remote Wipe is part of MOBILE ME...seems it worked just fine. Prototype is going to have a different software package then the 4.0 developer release. Sorry, FAIL again...not proof. By the way having a Birthday is no excuse to have a classified prototype in possession in a public place.

Not in 4.0 - the only remote wipe that works is exchange. If it doesn't work in the developer release why would it work in an earlier one?

Not even gonna bother with this one cause it makes no sense if they wiped it

Companies wipe smart phones all the time if they go missing regardless of the circumstance. I have personally delat with this several times. It is nothing new.

 

[ShiftyPig]

***all that stuff***

Again, again, again for yet another effing time - Apple has the ability to route the call. You think you're going to make better progress requesting an "expert" call than AppleCare and saying you need to return something? Apple thought it was a hoax so they didn't route him to talk to anyone else.

And again, for only the second time this time, you come to the word reasonable. Reasonable effort. A reasonable person would call Apple - duty fulfilled, whether you like it or not.

 

[sleeks]

I'll just stick with the Gizmodo side of things here:



Actually, Gizmodo:
1) Paid someone $5000 for a device that the *seller* told them didn't belong to him. (Knowingly purchasing stolen property.)
2) Took it apart. (Potentially damaging said personal property.)
3) Made no attempt to return the device to Apple. (Surely *they* have contacts they could have used to get in touch)
4) Profited from the endeavor. (The articles and their associated income.)
5) Refused to return the device to Apple without a formal, written request. (Even after they *knew* the device belonged to Apple.)

There's not much wiggle room in there for calling it an 'oops'. They willfully and *knowingly* purchased stolen goods. How dumb can you get?

1) They can easily argue that it was not known that it was stolen
2) Who cares, they didn't damage it.
3) They again can easily argue that they needed to verify it was a legit Apple product first. There were reports during the week that it was a Chinese fake.
4) So?
5) Again, So? They asked for a formal request so they could have a record of the request instead of just a phone conversation. Not a big deal.

Apple isn't going to do anything other than possibly change their policies regarding who/how products can be taken off campus in the future.

Suing Gizmodo or the guy who found it would not be in Apple's best interest at this point. The information is out there and can't be taken back with a lawsuit. Its done. They are getting a huge amount of press over this. While it might not be the way that Steve would want to introduce the phone to the world, its still publicity. Lastly, if it is shown that the guy had an open ticket with Apple and had tried repeatedly to get in touch with someone at Apple, no judge is going to throw him in jail....please. Suing would just be BAD press for apple.

 

[Seward Johnson]

9/10ths of the Law

To all the budding legal scholars here who claim that "possession is 9/10ths of the law" - it isn't - it only shows that 9/10ths are ignorant of the law and ignorance of the law is no defense to a felony.

One thing is true - if you are in possession of stolen goods (whether it's a cellphone, a laptop or a car), you are more than 9/10ths guilty in the eyes of the law. Those who like to bandy about legal colloquialisms might say you've been "caught red handed". Slippery self-serving statements on your website - after you've basically admitted all of the relevant facts to your participation in a felony on such website - won't help even 1/10th when the DA decides to prosecute.

And that brings me to my final point - it is not the victim - Apple - who has the right to prosecute this case or not (at least the felony part) - it is the District Attorney's office. And, if the facts are clear (as they are here), they don't have a real option NOT to prosecute - they have a responsibility.

 

[TheSlush]

Aren't those conference call questions pre-screened anyway before the questioner gets put on the mic?

 

[ct2k7]

Apple has the ability to route the call as necessary. There are four Apple phone numbers on the website. Should he have called the Apple Store? Jobs' house? I trust you have Jobs' number, yeah?

Point out the number he should have called.

(408) 974-2042

to start with, and back up with an email to apple, and someone high up in the chain (with [a] photo(s) of the device)

I don't appreciate your sarcasm.

Just saying to the rep: I think I have an iPhone 4G is not enough. You need to describe it, and the circumstance it was found it- but don't stop there, you know the owner, give them his name. If he had not deliberately witheld information from the rep, he would have then been able to forward the call to someone more appropriate.

 

[gethyphyyo]

The employee in question is an engineer testing the basband software - that is his official job.

Cite please - they can be tested anywhere they want.


Not in 4.0 - the only remote wipe that works is exchange. If it doesn't work in the developer release why would it work in an earlier one?




Companies wipe smart phones all the time if they go missing regardless of the circumstance. I have personally delat with this several times. It is nothing new.

Don't even bother with that guy. He obviously hasn't read the full articles on Gizmodo's site.

 

[Vogue Harper]

Irrelevant. He sold it. You can't sell crap that isn't yours, not ethically, not legally.

Maybe, maybe calling the wrong people and giving up would be excusable if he hadn't then sold it. Maybe then we could call him simply lazy. But he knew the identity of the owner, and obviously knew the owner would want it back because it was pretty damn valuable. And then he sold property that was not his.

Whether or not Gizmodo is legally liable is another issue. The guy who actually stole the phone...stole the phone.

What is the relevant definition of theft here? I'm an English law lawyer so can only comment if English law applied here - I agree that if he had sold it it would satisfy the 'intention to permanently deprive' element of the English law definition of theft (which I understand is also relevant to the case in hand). Selling it to someone else is as clear as you can get that you yourself intend to permanently deprive the rightful owner of their property - regardless of whether the person you sold it to made assurances to you that they will return it to the rightful owner.

What's the dishonesty requirement under relevant law? Under English law we need to show dishonest appropriation - which is where lost property cases like this sometimes fall down because it turns on what efforts were made to return the lost property (which seem to be where the majority of arguments on this thread have focussed). I know under English law you can leave lost property with a Police station and go back for it if it has remained unclaimed for a few months - from which point onwards you can do as you please with it including selling it. No theft because there was no dishonest appropriation.

If the laws applicable to this prototype iPhone are equivalent then it is not as clear a case of theft as some on here would like us to believe it is.