Apple vs. Gizmodo
April 28th, 2010, 3:22am by JakeTime to move this over from Twitter. [edited by Mike, see below]
————–
# jakerome: High-tech task force that deals with massive counterfeiting operations & online threats is handling a case involving a phone left in a bar
# sbono13: @jakerome It’s not illegal to leave a phone in a bar. It’s illegal to steal, sell stolen property, buy stolen property. Fascinating story.
# jakerome: @sbono13 Do you think I can get REACT to go after whoever found my iPod on the SWA plane?
# sbono13: @jakerome I don’t think that’s the same thing. Do you?
# jakerome: @sbono13 Why not? My name was on the device & I didn’t brick it. Someone sold it, if buyer returned is buyer a crook? http://bit.ly/aksbFm
# sbono13: @jakerome Are you complaining because it’s not illegal, or that REACT should not be handling it?
# jakerome: @sbono13 1) Don’t see a case against Gizmodo; 2) Any case should be handled by regular police; 3) Shield laws protect Gizmodo.
# sbono13: @jakerome I don’t understand your vitriol. You don’t think there’s anything wrong with this guy making out with $5000?
# sbono13: @jakerome Oh c’mon, you’d just omplain that regular police should be arresting murderers or jaywalkers!
# jakerome: @sbono13 They searched the journalist’s house, not “this guy’s.” And the guy did make a (half-hearted) attempt to return it.
# jakerome: @sbono13 Not to mention, couldn’t be sure it wasn’t a KIRF until they cracked open the case since it was bricked.
# jakerome: @sbono13 Check out Engadget comments. Gizmodo didn’t know what it was until they had it, then returned it. Not a crime. http://bit.ly/cKGMIi
# sbono13: @jakerome I’m sure this guy offered it to engadget and then gizmodo, for a price. What if he also offered it to Google or better yet, Palm?
# jakerome: @sbono13 As soon as Palm or Google figured out it was real, they’d return it to Apple. Same as Gizmodo did.
# sbono13: @jakerome No way. You think Palm could get away with paying $$ for it, tearing it down and examining it for a week, then returning it?
# jakerome: @sbono13 I think they’d have a hell of a civil lawsuit on their hands.
April 28th, 2010 at 1:02 pm
First of all, hope you don’t mind that I edited the post. I just reversed the order so it’s chronological, linkified the links, and removed the timestamps so it read like a conversation. Even left the typos in place 😉
I’ll put together a real comment when I have some time. But basically, I think Gizmodo are liars and dicks, regardless of whether they broke the law or not.
April 28th, 2010 at 2:29 pm
Fact is, according to Gizmodo’s own statements, they were not sure it was a real Apple prototype until they disassembled it. Further the seller– who according to his own accounts was handed the phone by someone who found it left on a bar stool by a drunken patron– made at least two (2) attempts to return the phone to Apple by calling their help phone. In addition, the journalist in question is not only protected by California Shield Law from being subjected to search in pursuit of a source, but he is also explicitly protected by Federal law from having his property seized with a only warrant even if he was suspected of receiving stolen property as part of a journalistic investigation.
In summary, your honor, I would move immediately to invalidate the warrant, return all items seized to Mr. Chen and provide him reasonable compensation for his busted door and lost productivity. In addition, I would urge this court to enjoin the industry-connected REACT group and the Santa Clara District Attorney from pursuing Mr. Chen any further in this matter as either a witness or a suspect.
I rest my case.
April 28th, 2010 at 2:32 pm
So what if Gizmodo had just taken photos of it then told the guy he should return it to Apple. Would have caused Apple the exact same harm.
April 28th, 2010 at 4:11 pm
You can’t tell me you believe that story! If some drunk guy in a bar (convenient that the “finder” is a different person than the “seller” — meaning the seller is, according to the story, not complicit in the phone leaving its owner) gave you a phone that was clearly not yours, wouldn’t you at least turn it in to the lost & found? (I’m speaking as someone who has actually lost an iPhone in a bar, and got it back from the bartender’s lost and found — that’s how it works). And why would the guy call Apple to try to return it anyway, if presumably, he didn’t know it was Apple’s phone? And you really think that he tried to call Apple and return it? He was in Redwood City, it’s not like it’s hard to find Apple, since their corporate headquarters is not far away. I find it hard to believe he contacted any official Apple representative and was unable to return the phone. And at the time he sold it to Giz, both parties clearly knew that they had an Apple prototype (the average Gizmodo reader would have known that) — what they didn’t know was how close it was to the final product. I’m not saying that anybody intentionally stole the phone, but the story is so bad that it’s impossible not to suspect they’re covering something up.
We can definitely debate whether the law as written makes any sense or not (understanding that none of us are lawyers), but it seems like this case falls pretty clearly under the laws I keep seeing cited. As for your analogy to your lost iPod, if you knew it was missing, the person who had it knew that it was yours, and you knew they had it because they had put photos of it on their website, I would think you would have a case under the law. Whether the DA would take your case is a separate issue (law enforcement vs statutory law), and nobody is surprised that large, rich corporations exert more weight than individuals in this and almost all other cases.
And shield laws are intended to protect journalists from revealing sources who give them information. Not necessarily to protect people who steal objects. There’s been no (public) discussion as to whether the DA is making a case against Chen’s “source” as a thief — ostensibly, the DA is trying to figure out whether Giz knew they were buying property that belonged to someone else, which constitutes theft under the law. If Jason Chen wrote a mail saying, “That’s so cool that you found an Apple prototype, we’d love to buy it for $5000!” he’s in trouble. Again, it’s for somebody else to decide whether the phone was *stolen* or not, but since that’s the investigation, I don’t know that shield laws apply here. Again, not a lawyer, and neither are you. I’m sure that will be part of Chen’s defense, however.
As for the last point, I had the same thought — what if Gizmodo hadn’t actually taken possession of the “stolen object?” I think that’s pretty interesting — and you’re right it would have caused Apple the same harm. To go one step further, what if the “source” had photographed the phone, including its careful disassembly, and mailed the photos anonymously to Giz? There’s no way Giz could be liable in that case — there are anonymous photos from Chinese factories of case designs all the time. And this is the sort of case that shield laws are designed for.
What I think is motivating the blogosphere is that Gizmodo really acted like jerks throughout the whole affair. They could have broken the story without the attitude, and really had a leg-up on more respected news outlets (not to mention tech blogs), but instead, they came off looking like rank amateurs. Their outing of the engineer was both pointless and harmful (didn’t help the story — certainly Apple already knew who he was, revealing his name publicly helps nobody and hurts him), their response to Apple’s legal request for the phone’s return was ridiculously immature, and their continued lack of class isn’t winning them any friends. The blogosphere would probably be more behind them if they weren’t acting like such dicks.
April 28th, 2010 at 10:07 pm
Jake, I think you’re trivializing the situation with your iPod analogy… This isn’t like you dropped a dollar bill on the ground and someone else found it. We’re talking about the potential theft of $5,000 worth of merchandise. And I agree with Mike, I can’t take everything Gizmodo says at face value. I suspect there’s an email from Giz telling the finder exactly how he should go through the motions to return the lost phone without really returning the lost phone. If the finder had any intention of returning the phone, he could have emailed steve jobs directly. It’s not that big a deal.
April 30th, 2010 at 8:38 pm
This week’s On The Media, from NPR, has a segment on the story and how shield laws affect it (and may be affected by it). Haven’t listened yet, but will over the weekend.