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Why Apple Could Sue Gawker Over 'Lost' iPhone Story

16 points by icey 17y ago

statictype 17y ago
Denton insists returning it to Apple was the plan all along if the phone turned out to be authentic. But Wallin doesn't believe that argument would be of much use in court. "How many times do people say after they're caught that their intention was to return something?" he says. "Can someone raise that defense? Of course. That doesn't mean it's going to be believed." I'm not getting it. Gawker did return the phone when Apple notified them that it was theirs, didn't they? The fact that Apple had requested the phone back is what solidified the fact that it was indeed a genuine Apple prototype.
- anigbrowl 17y ago
  They did...but in between they posted a ton of information about Apple's device, which they were not entitled to do, with the specific end of making a profit. this is illegal for two reasons: one is that you're not supposed to exploit someone else's ill fortune in this manner, and two is that you're not supposed to damage that someone else's interests. Besides benefiting Apple's competitors, there are already news stories saying things like 'don't buy an iPhone until June' and so forth.
  - statictype 17y ago
    this is illegal for two reasons: one is that you're not supposed to exploit someone else's ill fortune in this manner, and two is that you're not supposed to damage that someone else's interests. Illegal or unethical? As a thought experiment: Couldn't you turn it around and say it's unethical for Apple to allow customers to buy phones knowing full-well that they are going to introduce a top-of-the-line model in a few months? Isn't it in Gizmodo's best interest (as a journalistic establishment that serves the best interests of the people - again, just a thought experiment) to let people know about this? How is it different from DaringFireball talking about an Apple tablet device based on inside information that he received?
    - IdeaHamster 17y ago
      Couldn't you turn it around and say it's unethical for Apple to allow customers to buy phones knowing full-well that they are going to introduce a top-of-the-line model in a few months? W...T...F?!? Please, please explain this logic to me. Honestly, I don't understand how some people think like this! What would you have Apple do? Stop selling the previous model as soon as they have the first prototypes of the next one? Pre-announce the next generation of phone at the launch of each new generation? Are you familiar with the Osborne effect? Is it really so bad that Apple has managed to, more or less, completely eliminate the Osborne effect through their over-the-top secrecy? Why should you be entitled to know what some other company's plans are?
      - statictype 17y ago
        Honestly, I don't understand how some people think like this! I agree(it was just a thought experiment - I don't actually hold that view).No, I don't expect Apple to stop selling the previous model and I don't see anything wrong with that. I also don't see anything wrong with a tech magazine/blog breaking news about a new version of a device that could, as a side effect, damper sales of the existing device. We are not entitled to know everything Apple does and neither is Apple entitled to expect journalists to help them maintain their secrecy.
    - anigbrowl 17y ago
      My (amateur) understanding is that it is illegal. You raise reasonable points about the ethical question of informing the buying public about available products, but I think that legitimate journalistic purpose has limits. Exposing the internals, to the point of revealing construction and identifiable components, goes beyond that limit, as does holding the device hostage to confirmation. And I share the view of many other HN readers in feeling it was unecessary to make a public spectacle of the engineer who misplaced the device. There are definite prohibitions on exploiting such information for commercial gain, even the indirect gain of internet traffic. Consider the benefit to manufacturers of knockoffs from such a detailed teardown - that undermines Apple's future sales and imposes an extra burden on US customs officials charged with enforcing prohibitions on fake devices entering the domestic market.
- noilly 17y ago
  thought: if apple files a lawsuit, does it mean this was not a plant?
kevinh 17y ago
Asking around at the bar and calling Apple isn't a reasonable and just attempt to return the property to its owner? Let's not forget that the guy who found the iPhone was in a bar, and, most likely, had impaired though processes. I'm pretty sure most people would agree he went above and beyond the call of duty attempting to return the product to its owner.
- hristov 17y ago
  Not if you know where the owner's address is. You can just drop it off at their headquarters. Or at any apple store. OR you can mail it to them. So no, obviously not.
- snagage 17y ago
  Lets see. He checked with a couple of people sitting next to him, put the phone in his pocket, mucked around with it, found the owner's facebook page, and then sold it for $5K. No, I don't think he made a reasonable effort to return it at all. It's out and out theft.
- waterlesscloud 17y ago
  How about posting on the guy's facebook page "Hey I got ur phone."
- lurch_mojoff 17y ago
  ...and calling Apple isn't a reasonable and just attempt to return the property to its owner... Calling AppleCare - Apple's customer support - apparently? No, it is not reasonable. Going above and beyond the call of duty would have been stuff like - leaving contact information at the bar, so if someone comes looking for it they can get in touch with you; calling Apple corporate (you can find the number on apple.com/contact ) and demanding to speak with someone in charge; having access to the guy's Facebook information, you can try contacting him directly; and so on and so forth. The "finder's" actions are a lousy cop out, after which they started shopping the phone around to tech blogs.
- ja2ke 17y ago
  Selling it to Gawker for $5,000 is the opposite of returning it to its owner. There's no way around this really.
hristov 17y ago
I have to generally agree with the overall gist of this (not legal advice!). Interestingly I noticed gawker ran a very fawning article about Steve Jobs today, so they are obviously scared and trying to backpedal and suck up to Jobs.
- anigbrowl 17y ago
  John Gruber spotted this one already.... Gaby Darbyshire is the Chief Operating Officer of Gawker Media, overseeing Finance, Legal, Operations and Business Development. Gawker Media is the publisher of nine online blog titles, including the award-winning and acclaimed Gawker and Gizmodo. She holds a MA in Natural Sciences from Cambridge University and a law degree from City University, and is a member of the Bar of England and Wales. http://gabydarby.blogspot.com/ http://gabydarby.blogspot.com/ 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. http://www.dailyfinance.com/story/how-checkbook-journalism-gave-gizmodo-its-iphone-scoop/19445990/ http://www.dailyfinance.com/story/how-checkbook-journalism-g... Wonder if she looked at United States v. Mikahel Chang and Daniel Park, CR-00-20203 (N.D. California 2000)? Buying something that you know to be improperly obtained is itself criminal. Not sure what precedents, if any, exist for splashing the innards of the prototype all over the internet.
jrockway 17y ago
Misappropriation of trade secrets? It's not a trade secret when it's in a bar. To be a trade secret, it has to be secret.
- hga 17y ago
  Bingo. To maintain a trade secret you have to take effective steps to keep it secret. If you fail without external action (e.g. inducement to spill the secret, theft, etc.), e.g. by losing something in a public place, you lose your ability to pursue anything on trade secret grounds since you exposed the secret to the world.
- anigbrowl 17y ago
  Accidental loss != abandonment, especially when the item was disguised as an existing model. Gizmodo knew, or at least hoped, that they were getting a prototype of an unannounced new iphone.
iuguy 17y ago
I'm not a lawyer, but I'm fairly certain the author of this article is not a lawyer either. My experiences with litigation thus far are that you can sue anyone for anything. It's whether or not you get judgement in your favour and any money out of it that counts.

16 points by icey 17y ago

Denton insists returning it to Apple was the plan all along if the phone turned out to be authentic. But Wallin doesn't believe that argument would be of much use in court. "How many times do people say after they're caught that their intention was to return something?" he says. "Can someone raise that defense? Of course. That doesn't mean it's going to be believed." I'm not getting it. Gawker did return the phone when Apple notified them that it was theirs, didn't they? The fact that Apple had requested the phone back is what solidified the fact that it was indeed a genuine Apple prototype.

anigbrowl 17y ago
They did...but in between they posted a ton of information about Apple's device, which they were not entitled to do, with the specific end of making a profit. this is illegal for two reasons: one is that you're not supposed to exploit someone else's ill fortune in this manner, and two is that you're not supposed to damage that someone else's interests. Besides benefiting Apple's competitors, there are already news stories saying things like 'don't buy an iPhone until June' and so forth.
- statictype 17y ago
  this is illegal for two reasons: one is that you're not supposed to exploit someone else's ill fortune in this manner, and two is that you're not supposed to damage that someone else's interests. Illegal or unethical? As a thought experiment: Couldn't you turn it around and say it's unethical for Apple to allow customers to buy phones knowing full-well that they are going to introduce a top-of-the-line model in a few months? Isn't it in Gizmodo's best interest (as a journalistic establishment that serves the best interests of the people - again, just a thought experiment) to let people know about this? How is it different from DaringFireball talking about an Apple tablet device based on inside information that he received?
  - IdeaHamster 17y ago
    Couldn't you turn it around and say it's unethical for Apple to allow customers to buy phones knowing full-well that they are going to introduce a top-of-the-line model in a few months? W...T...F?!? Please, please explain this logic to me. Honestly, I don't understand how some people think like this! What would you have Apple do? Stop selling the previous model as soon as they have the first prototypes of the next one? Pre-announce the next generation of phone at the launch of each new generation? Are you familiar with the Osborne effect? Is it really so bad that Apple has managed to, more or less, completely eliminate the Osborne effect through their over-the-top secrecy? Why should you be entitled to know what some other company's plans are?
    - statictype 17y ago
      Honestly, I don't understand how some people think like this! I agree(it was just a thought experiment - I don't actually hold that view).No, I don't expect Apple to stop selling the previous model and I don't see anything wrong with that. I also don't see anything wrong with a tech magazine/blog breaking news about a new version of a device that could, as a side effect, damper sales of the existing device. We are not entitled to know everything Apple does and neither is Apple entitled to expect journalists to help them maintain their secrecy.
  - anigbrowl 17y ago
    My (amateur) understanding is that it is illegal. You raise reasonable points about the ethical question of informing the buying public about available products, but I think that legitimate journalistic purpose has limits. Exposing the internals, to the point of revealing construction and identifiable components, goes beyond that limit, as does holding the device hostage to confirmation. And I share the view of many other HN readers in feeling it was unecessary to make a public spectacle of the engineer who misplaced the device. There are definite prohibitions on exploiting such information for commercial gain, even the indirect gain of internet traffic. Consider the benefit to manufacturers of knockoffs from such a detailed teardown - that undermines Apple's future sales and imposes an extra burden on US customs officials charged with enforcing prohibitions on fake devices entering the domestic market.
noilly 17y ago
thought: if apple files a lawsuit, does it mean this was not a plant?

kevinh 17y ago

Asking around at the bar and calling Apple isn't a reasonable and just attempt to return the property to its owner? Let's not forget that the guy who found the iPhone was in a bar, and, most likely, had impaired though processes. I'm pretty sure most people would agree he went above and beyond the call of duty attempting to return the product to its owner.

hristov 17y ago
Not if you know where the owner's address is. You can just drop it off at their headquarters. Or at any apple store. OR you can mail it to them. So no, obviously not.
snagage 17y ago
Lets see. He checked with a couple of people sitting next to him, put the phone in his pocket, mucked around with it, found the owner's facebook page, and then sold it for $5K. No, I don't think he made a reasonable effort to return it at all. It's out and out theft.
waterlesscloud 17y ago
How about posting on the guy's facebook page "Hey I got ur phone."
lurch_mojoff 17y ago
...and calling Apple isn't a reasonable and just attempt to return the property to its owner... Calling AppleCare - Apple's customer support - apparently? No, it is not reasonable. Going above and beyond the call of duty would have been stuff like - leaving contact information at the bar, so if someone comes looking for it they can get in touch with you; calling Apple corporate (you can find the number on apple.com/contact ) and demanding to speak with someone in charge; having access to the guy's Facebook information, you can try contacting him directly; and so on and so forth. The "finder's" actions are a lousy cop out, after which they started shopping the phone around to tech blogs.
ja2ke 17y ago
Selling it to Gawker for $5,000 is the opposite of returning it to its owner. There's no way around this really.

hristov 17y ago

I have to generally agree with the overall gist of this (not legal advice!). Interestingly I noticed gawker ran a very fawning article about Steve Jobs today, so they are obviously scared and trying to backpedal and suck up to Jobs.

anigbrowl 17y ago
John Gruber spotted this one already.... Gaby Darbyshire is the Chief Operating Officer of Gawker Media, overseeing Finance, Legal, Operations and Business Development. Gawker Media is the publisher of nine online blog titles, including the award-winning and acclaimed Gawker and Gizmodo. She holds a MA in Natural Sciences from Cambridge University and a law degree from City University, and is a member of the Bar of England and Wales. http://gabydarby.blogspot.com/ http://gabydarby.blogspot.com/ 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. http://www.dailyfinance.com/story/how-checkbook-journalism-gave-gizmodo-its-iphone-scoop/19445990/ http://www.dailyfinance.com/story/how-checkbook-journalism-g... Wonder if she looked at United States v. Mikahel Chang and Daniel Park, CR-00-20203 (N.D. California 2000)? Buying something that you know to be improperly obtained is itself criminal. Not sure what precedents, if any, exist for splashing the innards of the prototype all over the internet.

jrockway 17y ago

Misappropriation of trade secrets? It's not a trade secret when it's in a bar. To be a trade secret, it has to be secret.

hga 17y ago
Bingo. To maintain a trade secret you have to take effective steps to keep it secret. If you fail without external action (e.g. inducement to spill the secret, theft, etc.), e.g. by losing something in a public place, you lose your ability to pursue anything on trade secret grounds since you exposed the secret to the world.
anigbrowl 17y ago
Accidental loss != abandonment, especially when the item was disguised as an existing model. Gizmodo knew, or at least hoped, that they were getting a prototype of an unannounced new iphone.

iuguy 17y ago

I'm not a lawyer, but I'm fairly certain the author of this article is not a lawyer either. My experiences with litigation thus far are that you can sue anyone for anything. It's whether or not you get judgement in your favour and any money out of it that counts.