4 ms·

Maybe so. But if so, then REACT shouldn't have any trouble explaining why the investigation of this single phone was so important. There are thousands of IT bus

Maybe so. But if so, then REACT shouldn't have any trouble explaining why the investigation of this single phone was so important. There are thousands of IT businesses that have been cheated, defrauded, stolen from, and counterfeited, and yet Apple's already-returned single phone gets preferential treatment. Why? Your explanation might be perfectly valid, but it's not the explanation REACT has given. They haven't explained anything at all.

CWuestefeld 16y ago
My point wasn't that Apple is a business, and that other businesses should be treated the same. I was working on an idea of "size of the crime multiplied by the number of people impacted" might define where the threshold lies. So murdering one person is significant in that it affects one person ultimately, and a good chunk of other people in the second order. Losing one's own phone affects a single person only, and not very significantly at that. Apple's losing their prototype is analogous in the actual act, but the effect on Apple's marketing multiplies it out big-time. Other test cases for the thought experiment: bank robbery; simple assault; rape; creating a public nuisance. I think the idea can be applied successfully across all of these. I don't know anything specific about the stolen iPhone case. I find the whole "zOMG I saw a picture of the new iPhone!!!1!!" thing to be ridiculous. So I can't address anyone's behavior in this instance.
- MaxwellKennerly 16y ago
  That's, by and large, what most district attorneys and police departments do, and that's what's so troubling about this action and the priority it was given. No one seriously believes that Gawker Media poses a continuing threat to anyone, including Apple. There's also no question about the disposition of the property; it's in Apple's hands. Further, the damage done is questionable. (I don't mean "frivolous." By "questionable," I mean that there's a legitimate dispute as to whether or not anyone suffered legally-recognized damages from the leak, as compared to, say, someone running a counterfeit-iPhone operation.) In such a situation, most cops and DAs would put the investigation at the bottom of their pile, tell the victim to file a civil lawsuit, and then focus their resources at on-going criminal activity or crimes with substantial damages to the public. Here, however, REACT raced into action with a particularly aggressive maneuver: a subpoena and unannounced seizure of a journalist's property. That's among the most aggressive actions they could have taken, and the decision-making behind it deserves an explanation.
  - slantyyz 16y ago
    Makes me want to mangle that Animal Farm line: "All lost phones are equal, but some lost phones are more equal than others."
anigbrowl 16y ago
Mr Kennerly, I feel you're being a little disingenuous here. A couple of days ago (before the police involvement) you mentioned this story in another article on your blog(http://www.litigationandtrial.com/2010/04/articles/series/special-comment/lost-iphones-and-goldman-sachs-filtering-deception-through-middlemen/ http://www.litigationandtrial.com/2010/04/articles/series/sp...), saying Gawker Media, publisher of Gizmodo, paid $10,000 to the "finder" of a "lost" prototype iPhone. ($10k was the original rumor about the sum paid). Now, if I may paraphrase, you're saying 'all this for a single phone that is going to be sold to millions anyway? pfff.' But you know it's a prototype, if you've followed the story closely, you know that Gawker did publish "more than information the appearance of the phone": http://gizmodo.com/5520876/the-next-iphone-dissected http://gizmodo.com/5520876/the-next-iphone-dissected - such things are not readily ascertainable by proper means, so I don't think IDX v Epic systems is a good comparison. You say there are 'thousands of businesses [that have been wronged] and yet Apple [...] gets preferential treatment.' I can't agree. A quick search of justice.gov for the terms ''economic espionage' arrested' - a different jurisdiction, to be sure, but a similar kind of enforcement - yields over 100 cases of the police power being used on behalf of companies' intellectual property - and as we both know, a comprehensive search through legal databases would turn up many more. We both know that IP theft or misappropriation isn't about the physical devices, DVDs or sheets of paper which may go missing, but about the large sums of money and time that go into their development: which money and time represent the assets and jobs of a good many people, and may have a large bearing on their economic security. I don't know about Philadelphia, but here on the west coast US customs regularly find shipments of counterfeit devices; here's a recent (pre-Gizmodo) story about a batch of 2000 such units: http://abclocal.go.com/kgo/story?section=news/local/peninsula&id=7382428 http://abclocal.go.com/kgo/story?section=news/local/peninsul... The numbers seized here are trivial in comparison to those sold abroad. Although black markets are notoriously hard to estimate, extrapolating from recent assessments by Nokia suggest that annual production of counterfeit iPhones might amount to ~2.5 million units (http://communities-dominate.blogs.com/brands/2010/03/revised-mobile-phone-global-market-shares-for-2009-after-we-add-counterfeit-phones-number.html http://communities-dominate.blogs.com/brands/2010/03/revised...). Obviously not every purchaser of a fake would or could buy a real device, but even if we assume the number of actual lost sales is only 20% of fake sales, based on the typical price differential of fake and real units, we're still looking at something in the region of a quarter-billion dollars a year in lost revenue. Now, while this is not Gizmodo's fault - and like other gadget blogs, they frequently 'out' fake devices as fake - showcasing the interior construction of the new iPhone several months ahead of release is surely a significant, if incidental, assist to black market manufacturers. What engineer wouldn't be delighted to get a head start on their design cycle? I'd wager that a fake iPhone v4 appears for sale in China before the release of the genuine device by Apple, anticipated in June. I mean, suppose this happened to you - a few months out from important litigation, a draft of your brief is accidentally exposed - perhaps a paralegal briefly mis-configures the wi-fi settings on a laptop, allowing a 'guest' to access it and open a file. I've seen it happen. Some freewheeling industry blog buys the document, disseminates it widely, and gleefully mocks your staffer's preference for triple-cream lattes and weak understanding of wireless networking for added yuks. Your case is strong enough on its merit to litigate successfully, but the incident would still be a nightmare for your firm, would it not? Now, to address your headline question of whether the police should be equally or more assiduous where missing children are concerned - undoubtedly. But the contrast you draw is a poor match in time, scope, and geography, and borders on saying that one enforcement action is unjustified because an unrelated police department once failed to serve the public effectively, with a horrible outcome. I'm glad to have found your blog, which has many interesting and thought-provoking articles. But I really feel your approach to this episode has been somewhat one-sided. True, there are issues of press freedom at stake whenever police find cause to investigate members of the media. But there are also issues of wilful misappropriation of private IP, publication resulting in private harm but no obvious public benefit, and a management team carelessly exposing junior employees to civil and criminal liability. Disclaimers: I'm not an attorney, have never owned any Apple hardware, software, or stock, have no connection with anyone even remotely close to this case. I admit having a bee in my bonnet about this; in a past life I was a tech journalist at PC Magazine (UK) and feel personally offended by Gawker Media's cavalier ethical outlook.

CWuestefeld 16y ago

My point wasn't that Apple is a business, and that other businesses should be treated the same. I was working on an idea of "size of the crime multiplied by the number of people impacted" might define where the threshold lies. So murdering one person is significant in that it affects one person ultimately, and a good chunk of other people in the second order. Losing one's own phone affects a single person only, and not very significantly at that. Apple's losing their prototype is analogous in the actual act, but the effect on Apple's marketing multiplies it out big-time. Other test cases for the thought experiment: bank robbery; simple assault; rape; creating a public nuisance. I think the idea can be applied successfully across all of these. I don't know anything specific about the stolen iPhone case. I find the whole "zOMG I saw a picture of the new iPhone!!!1!!" thing to be ridiculous. So I can't address anyone's behavior in this instance.

MaxwellKennerly 16y ago
That's, by and large, what most district attorneys and police departments do, and that's what's so troubling about this action and the priority it was given. No one seriously believes that Gawker Media poses a continuing threat to anyone, including Apple. There's also no question about the disposition of the property; it's in Apple's hands. Further, the damage done is questionable. (I don't mean "frivolous." By "questionable," I mean that there's a legitimate dispute as to whether or not anyone suffered legally-recognized damages from the leak, as compared to, say, someone running a counterfeit-iPhone operation.) In such a situation, most cops and DAs would put the investigation at the bottom of their pile, tell the victim to file a civil lawsuit, and then focus their resources at on-going criminal activity or crimes with substantial damages to the public. Here, however, REACT raced into action with a particularly aggressive maneuver: a subpoena and unannounced seizure of a journalist's property. That's among the most aggressive actions they could have taken, and the decision-making behind it deserves an explanation.
- slantyyz 16y ago
  Makes me want to mangle that Animal Farm line: "All lost phones are equal, but some lost phones are more equal than others."

anigbrowl 16y ago

Mr Kennerly, I feel you're being a little disingenuous here. A couple of days ago (before the police involvement) you mentioned this story in another article on your blog(http://www.litigationandtrial.com/2010/04/articles/series/special-comment/lost-iphones-and-goldman-sachs-filtering-deception-through-middlemen/ http://www.litigationandtrial.com/2010/04/articles/series/sp...), saying Gawker Media, publisher of Gizmodo, paid $10,000 to the "finder" of a "lost" prototype iPhone. ($10k was the original rumor about the sum paid). Now, if I may paraphrase, you're saying 'all this for a single phone that is going to be sold to millions anyway? pfff.' But you know it's a prototype, if you've followed the story closely, you know that Gawker did publish "more than information the appearance of the phone": http://gizmodo.com/5520876/the-next-iphone-dissected http://gizmodo.com/5520876/the-next-iphone-dissected - such things are not readily ascertainable by proper means, so I don't think IDX v Epic systems is a good comparison. You say there are 'thousands of businesses [that have been wronged] and yet Apple [...] gets preferential treatment.' I can't agree. A quick search of justice.gov for the terms ''economic espionage' arrested' - a different jurisdiction, to be sure, but a similar kind of enforcement - yields over 100 cases of the police power being used on behalf of companies' intellectual property - and as we both know, a comprehensive search through legal databases would turn up many more. We both know that IP theft or misappropriation isn't about the physical devices, DVDs or sheets of paper which may go missing, but about the large sums of money and time that go into their development: which money and time represent the assets and jobs of a good many people, and may have a large bearing on their economic security. I don't know about Philadelphia, but here on the west coast US customs regularly find shipments of counterfeit devices; here's a recent (pre-Gizmodo) story about a batch of 2000 such units: http://abclocal.go.com/kgo/story?section=news/local/peninsula&id=7382428 http://abclocal.go.com/kgo/story?section=news/local/peninsul... The numbers seized here are trivial in comparison to those sold abroad. Although black markets are notoriously hard to estimate, extrapolating from recent assessments by Nokia suggest that annual production of counterfeit iPhones might amount to ~2.5 million units (http://communities-dominate.blogs.com/brands/2010/03/revised-mobile-phone-global-market-shares-for-2009-after-we-add-counterfeit-phones-number.html http://communities-dominate.blogs.com/brands/2010/03/revised...). Obviously not every purchaser of a fake would or could buy a real device, but even if we assume the number of actual lost sales is only 20% of fake sales, based on the typical price differential of fake and real units, we're still looking at something in the region of a quarter-billion dollars a year in lost revenue. Now, while this is not Gizmodo's fault - and like other gadget blogs, they frequently 'out' fake devices as fake - showcasing the interior construction of the new iPhone several months ahead of release is surely a significant, if incidental, assist to black market manufacturers. What engineer wouldn't be delighted to get a head start on their design cycle? I'd wager that a fake iPhone v4 appears for sale in China before the release of the genuine device by Apple, anticipated in June. I mean, suppose this happened to you - a few months out from important litigation, a draft of your brief is accidentally exposed - perhaps a paralegal briefly mis-configures the wi-fi settings on a laptop, allowing a 'guest' to access it and open a file. I've seen it happen. Some freewheeling industry blog buys the document, disseminates it widely, and gleefully mocks your staffer's preference for triple-cream lattes and weak understanding of wireless networking for added yuks. Your case is strong enough on its merit to litigate successfully, but the incident would still be a nightmare for your firm, would it not? Now, to address your headline question of whether the police should be equally or more assiduous where missing children are concerned - undoubtedly. But the contrast you draw is a poor match in time, scope, and geography, and borders on saying that one enforcement action is unjustified because an unrelated police department once failed to serve the public effectively, with a horrible outcome. I'm glad to have found your blog, which has many interesting and thought-provoking articles. But I really feel your approach to this episode has been somewhat one-sided. True, there are issues of press freedom at stake whenever police find cause to investigate members of the media. But there are also issues of wilful misappropriation of private IP, publication resulting in private harm but no obvious public benefit, and a management team carelessly exposing junior employees to civil and criminal liability. Disclaimers: I'm not an attorney, have never owned any Apple hardware, software, or stock, have no connection with anyone even remotely close to this case. I admit having a bee in my bonnet about this; in a past life I was a tech journalist at PC Magazine (UK) and feel personally offended by Gawker Media's cavalier ethical outlook.