

Another Case Against Gizmodo - andreyf
http://andreyf.tumblr.com/post/541010597/another-case-against-gizmodo

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cmatthias
I'm reasonably certain that you cannot copyright the design of a physical
product. Apple might be able to patent the design of a phone, especially if
its design is novel in some way, but copyright is reserved for "intellectual
works" like writing, artwork, computer software, etc.

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dhimes
_because it was a secret prototype, Gizmodo’s unlicensed reproduction is
different: it has clear and quantifiable damages to Apple’s business_

We haven't seen clear and quantifiable damages yet. If the new Android phone
were to show up looking exactly like it (not talking about the port
<http://news.ycombinator.com/item?id=1283780>) and subsequently Apple's sales
fell substantially below expectations, then maybe.

I doubt they'll be hurt at all by this, actually. I'm already hearing "oh,
sick, I can't wait to get it!"

~~~
dhimes
Somehow the parent post to which I replied looks strangely different now... ;)

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sunchild
No, this won't fly. Maybe a lawsuit based on trade secret misappropriation,
but not infringement of copyright.

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pedalpete
I'd have to disagree with most of what you are saying Andrey.

The product was not stolen from Apple, it was left in the public domain (if it
wasn't leaked).

The IP was therefore available for them to photograph and publicize.

Gizmodo didn't sell it or benefit from it's sale. They benefited from
reporting on a lost or stolen object. I doubt there is much legal recourse for
Apple there.

If Gizmodo did in fact pay for the iPhone, then Apple may have a case. But I
think it would have to depend on what they actually paid for.

They didn't hand over $10k without a legal contract, and that contract is
likely for the story, not for the physical product, as that could be construed
as possibly purchasing stolen goods, as Gizmodo really had no idea how the
person who found the phone actually got it.

~~~
andreyf
You're mixing up copyright and property law [1]. If you record Lady Gaga
humming an unreleased song in public, she still retains her copyright to the
tune, and can pursue you for damages, especially if you sell that recording
for $5000 to someone who makes a lot of money off of it.

 _They benefited from reporting on a lost or stolen object._

Precisely! That reporting just happens to include distributing a derivative
work of Apple's copyrighted material (the design of the phone). And because of
the distribution, Apple has incurred quantifiable damages. IANAL, but that's
one of the keys of a successful copyright violation suit: proving damages.
Such "reporting" is covered under "free speech" as much as distributing an
unreleased movie would be (i.e. not much).

1\. I edited the article to say "copyright" instead of "IP" explicitly

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shekmalhen
I'm curious, why does it matters so much to you, as you received no "damage"
in this story?

~~~
andreyf
I wonder that myself. It has something to do with a feeling that people aren't
understanding Apple in tech circles, and that we have a lot to learn from them
as a company. In this case, I think people are underestimating the damage to
Apple from this leak. It's not a coincidence that Steve was CEO of Pixar:
Apple doesn't just sell gadgets, but the entire narrative - about the company,
about Steve, and about their devices. It's inherent in their secrecy, in their
packaging, in their stores, in their presentation, and in the unveiling.
Preserving this "Willy Wonka" narrative is why they go to such lengths to
avoid leaks, not because of some manic control issues.

Also, I hate to find myself disagreeing with the "stream of thought" around
here: for example, I think 3.3.1 is good for startups because it's
unenforceable (hence, hackers and founders get to ignore it and get a
competitive advantage against risk-averse competitors). Another example: I
think one can easily paint Android as evil (Google is clearly developing it at
a loss to commoditize complementary markets). It's the equivalent of Microsoft
funding extensive open hardware design at a loss. As a heuristic, open is
good, but reality isn't that simple: had Microsoft done that, IBM and Intel
would never had a reason to invest the billions into chip development they
did.

I love Google and think they do many great things for the world, but I easily
see a different perspective in the case of Android. I can see how what Apple
is doing could be about Steve's ego issues, but also about making the best
devices possible.

