4 ms·

Wow, guys picking up phones in bars led to the current patent system? There's a piece of history I never knew. There is no "industrial espionage" here. Industr

by tghw 17y ago

Wow, guys picking up phones in bars led to the current patent system? There's a piece of history I never knew. There is no "industrial espionage" here. Industrial espionage would, at the very least, require Gizmodo to intend to steal the phone from the outset, which clearly isn't the case. As far as trade secrets go, Apple gives up all claim to them as soon as that phone leaves its campus. Gizmodo probably crossed some line in what it did and how it handled this story, but accusing a gadget site of industrial espionage is just ridiculous.

anigbrowl 17y ago
Would you happen to know what statute governs this?
- tghw 17y ago
  The trade secrets part is based on the Uniform Trade Secrets Act: The act defines a trade secret as information, including a formula, pattern, compilation, program, device, method, technique, or process, that: i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The auto industry has provided plenty of case law where car manufacturers tried suing people for photographing and reporting on new cars the companies were testing in public, almost all of which they lost because once the car was out in public, even with fake body work added (see http://www.worldcarfans.com/10803171807/vauxhall-reveal-the-secrets-of-camouflage http://www.worldcarfans.com/10803171807/vauxhall-reveal-the-...), it no longer met the second requirement of reasonable efforts to maintain secrecy.
  - cynicalkane 17y ago
    Field-testing a prototype phone that fits in your pocket isn't the same as driving a car all over the place! And it's not even clear whether the info on the new iPhone was obtained legally!
  - anigbrowl 17y ago
    Indeed. and you make a good point about cars, that being that if one actively shows the thing off in public one is inviting scrutiny. I would have no problem at all with a story along the lines of 'Man spotted in bar photographing self with iPhone - new model must have front-facing camera'. For that matter I'd be OK with 'iPhone prototype found? Man finds functional iPhone, but exterior case looks fake (obvious exterior facts)'. But suppose, to stick with the car example, the driver of a prototype car parked in a public lot and then dropped the keys, or was careless enough to leave them in the ignition. Would it be legitimate for someone to drive away and then sell it to a car fansite so they could pop the hood and partially disassemble it? There's a large qualitative difference between passive observation and active taking into possession. And I don't think opening the case is a proper means of evaluating a lost item, especially not when one has already ascertained the identity of the owner (by recognizing him from his facebook page, where he was easily contactable). Thanks for taking the time to flesh out your argument. I was hoping you'd refer me to the statute for industrial espionage, by the way, because I think you might be surprised at its scope and specificity. Would you like to, or shall I?
    - tghw 17y ago
      Your analogy breaks down a bit because you can't really lose a car the same way. Let's assume a different sequence of events, to help separate the issue of trade secrets and stolen property. Let's say that the phone was left behind at the bar, someone picks it up and hands to you, thinking your friend, who is currently in the wash room, left it behind. You've had a couple of beers and you know your friend has an iPhone, so you put it in your pocket for when he comes back. 10 minutes later (there was a line) he returns and you order another round, forgetting about the phone in the process. You don't remember you have it until you get home at 3am, having had a few more glasses of "golden liquid" (as Gizmodo would refer to it). Realizing you have someone's phone, and it's probably not your friend's, you turn it on, seeing the last thing the guy used before leaving it behind: his Facebook page. Good, you have a way to contact him. You thumb through the apps, try the camera, and then decide to go to bed. In the morning, you wake up groggy, and find the phone has bricked itself overnight. You didn't write down the name from the Facebook page because, well, you were drunk. So now what? You are now in possession of a "lost" item, meaning that, according to California law, you are "a depositary for the owner, with the rights and obligations of a depositary for hire." While pondering your situation, you notice something odd about the device. It looks like a 3GS with a case, but the buttons aren't the right shape. You take the cover off to investigate. It is immediately clear that this is not a 3GS. Knowing you have something interesting on your hands (even if it's a fake) you grab your trusty Nikon, and photograph the device from every angle. Once you're satisfied you have good pictures of it, you put the case back on and head down to your local police station to turn in the device, as required by California law. When you get home, you sell the photos you took to Engadget for $500. According to my (limited) understanding of trade secret law, Apple would have no case against you on the basis of trade secrets because, by bringing the phone out in public and leaving it behind at a bar, they clearly did not make reasonable efforts to keep it secret. Of course, the events of that night aren't nearly as clear, but, unless Apple can show that the phone was not lost but stolen (and not technically stolen because the guy misappropriated lost property, but stolen from the guy's pocket) there is no basis for a trade secret suit. This whole narrative leaves out the potential for other charges, like criminal theft by misappropriating lost property, or a civil suit against the "finder" for misappropriating lost property, but that's kind of the point. I'm trying to separate the issues so we can discuss them a little more clearly.

by tghw 17y ago

anigbrowl 17y ago

Would you happen to know what statute governs this?

tghw 17y ago
The trade secrets part is based on the Uniform Trade Secrets Act: The act defines a trade secret as information, including a formula, pattern, compilation, program, device, method, technique, or process, that: i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The auto industry has provided plenty of case law where car manufacturers tried suing people for photographing and reporting on new cars the companies were testing in public, almost all of which they lost because once the car was out in public, even with fake body work added (see http://www.worldcarfans.com/10803171807/vauxhall-reveal-the-secrets-of-camouflage http://www.worldcarfans.com/10803171807/vauxhall-reveal-the-...), it no longer met the second requirement of reasonable efforts to maintain secrecy.
- cynicalkane 17y ago
  Field-testing a prototype phone that fits in your pocket isn't the same as driving a car all over the place! And it's not even clear whether the info on the new iPhone was obtained legally!
- anigbrowl 17y ago
  Indeed. and you make a good point about cars, that being that if one actively shows the thing off in public one is inviting scrutiny. I would have no problem at all with a story along the lines of 'Man spotted in bar photographing self with iPhone - new model must have front-facing camera'. For that matter I'd be OK with 'iPhone prototype found? Man finds functional iPhone, but exterior case looks fake (obvious exterior facts)'. But suppose, to stick with the car example, the driver of a prototype car parked in a public lot and then dropped the keys, or was careless enough to leave them in the ignition. Would it be legitimate for someone to drive away and then sell it to a car fansite so they could pop the hood and partially disassemble it? There's a large qualitative difference between passive observation and active taking into possession. And I don't think opening the case is a proper means of evaluating a lost item, especially not when one has already ascertained the identity of the owner (by recognizing him from his facebook page, where he was easily contactable). Thanks for taking the time to flesh out your argument. I was hoping you'd refer me to the statute for industrial espionage, by the way, because I think you might be surprised at its scope and specificity. Would you like to, or shall I?
  - tghw 17y ago
    Your analogy breaks down a bit because you can't really lose a car the same way. Let's assume a different sequence of events, to help separate the issue of trade secrets and stolen property. Let's say that the phone was left behind at the bar, someone picks it up and hands to you, thinking your friend, who is currently in the wash room, left it behind. You've had a couple of beers and you know your friend has an iPhone, so you put it in your pocket for when he comes back. 10 minutes later (there was a line) he returns and you order another round, forgetting about the phone in the process. You don't remember you have it until you get home at 3am, having had a few more glasses of "golden liquid" (as Gizmodo would refer to it). Realizing you have someone's phone, and it's probably not your friend's, you turn it on, seeing the last thing the guy used before leaving it behind: his Facebook page. Good, you have a way to contact him. You thumb through the apps, try the camera, and then decide to go to bed. In the morning, you wake up groggy, and find the phone has bricked itself overnight. You didn't write down the name from the Facebook page because, well, you were drunk. So now what? You are now in possession of a "lost" item, meaning that, according to California law, you are "a depositary for the owner, with the rights and obligations of a depositary for hire." While pondering your situation, you notice something odd about the device. It looks like a 3GS with a case, but the buttons aren't the right shape. You take the cover off to investigate. It is immediately clear that this is not a 3GS. Knowing you have something interesting on your hands (even if it's a fake) you grab your trusty Nikon, and photograph the device from every angle. Once you're satisfied you have good pictures of it, you put the case back on and head down to your local police station to turn in the device, as required by California law. When you get home, you sell the photos you took to Engadget for $500. According to my (limited) understanding of trade secret law, Apple would have no case against you on the basis of trade secrets because, by bringing the phone out in public and leaving it behind at a bar, they clearly did not make reasonable efforts to keep it secret. Of course, the events of that night aren't nearly as clear, but, unless Apple can show that the phone was not lost but stolen (and not technically stolen because the guy misappropriated lost property, but stolen from the guy's pocket) there is no basis for a trade secret suit. This whole narrative leaves out the potential for other charges, like criminal theft by misappropriating lost property, or a civil suit against the "finder" for misappropriating lost property, but that's kind of the point. I'm trying to separate the issues so we can discuss them a little more clearly.