

The Appalling Reaction to the Apple iPhone Leak - hernan7
http://abcnews.go.com/print?id=10523213

======
hammerdr
I think he brings up a point in his post which effectively nullifies his
argument. Throughout the article, both explicitly and implicitly, he alludes
to the fundamental nature of a strong free press in American society.

Occam's Razor; which is more likely? The American public has completely lost
sight of the principle of a strong free press despite having held on to the
ideal for 200 years. Or, that the American principle of a strong free press is
still alive and kicking but the American ideal is not offended by this
particular case.

I think, even for the most cynical among us, that the second seems more
likely.

Why would that be? Well, there is the "distressing" issue of Gawker Media
purchasing (known) stolen goods. There is also the general distaste that most
Americans have for tabloid (yellow) journalism. Gawker Media is not very well
respected by the American public. Combine this with the general attitude of
Gizmodo (Look what we got! Na na na naa!) and the disgusting way that Gizmodo
ousted the engineer involved in losing the prototype and we start to see a
clearer picture of why getting the police involved doesn't offend too many
people's free press sensibilities.

Consider, just for a moment, that Gruber had gotten pictures of an Apple
product (legally) and posted those pictures on his blog. Do you think police
would be breaking into his home?

~~~
sheldonwt
Can you remind me again how you qualify a phone (lost, drunkenly) as 'stolen'.
You seem to be using that word rather loosely, when the person who found that
phone in fact found lost property, not stolen property. Nobody stole from
Apple here, rather Apple made a grave mistake which it seems in hindsight they
then used the police to assist in helping them recover from. How can you say
that Apple's clear and apparent ability to influence the actions of the police
isn't at least a little bit frightening? A little bit? It doesn't matter
whether Gruber or Gawker posted those pictures, the fact of the matter is that
the journalist who did post them faced what seems to be police persecution at
Apple's direction. Consider, just for a moment, that it had been a Windows
Mobile 7 phone. Do you think the police would be breaking into his home?

~~~
vtail
Your intuition regarding California Law is wrong.

"One who finds lost property under circumstances which give him knowledge of
or means of inquiry as to the true owner, and who appropriates such property
to his own use, or to the use of another person not entitled thereto, without
first making reasonable and just efforts to find the owner and to restore the
property to him, is guilty of theft."

CAL. PEN. CODE § 485

~~~
johSho7w
> without first making reasonable and just efforts to find the owner and to
> restore the property to him

See, the problem is that according to the law you quoted simply picking up and
taking the lost phone home is itself not equivalent to theft. You must prove
that no "reasonable and just efforts" were made. That paragraph doesn't even
say all reasonable and just efforts or even that the most reasonable and just
efforts (such as returning it to the beer garden) must be made. Only that
_some_ reasonable and just effort must be made. It doesn't even define success
as a test for determining if an effort was reasonable and just. Calling and
contacting Apple when you realize you have a prototype that has been
deactivated remotely so you cannot identify the user is reasonable. The law
does not support the blanket assertion that all lost property is stolen. It's
just more nuanced than you want to believe. Sorry your absolutism doesn't jive
with reality.

You seem to think that language is there to protect owners of lost property.
In reality it's there to protect finders of lost property i.e. business owners
so that they can dispose of abandoned junk.

------
ugh
Hm, I’m not so sure whether Chen’s house was raided because he published
information. After all, Engadget also posted photos of the prototype, even
that same prototype, yet the police didn’t raid their editors’ homes.

Rather this seems to be a case of Gizmodo being clueless about how to do
proper investigative reporting (i.e. don’t buy stolen stuff). Should
journalists be allowed to buy things they know to be stolen? Sure, but not
always. Memos which show government fraud? Hand over cash. Consumer
electronic? Rather not.

~~~
ahk
What's the big diference between government secrets and company secrets? Just
that one is more tawdrier and of less consequence?

These days companies are getting so unaccountable to anyone that I'd rather
not have reporters make any such distinctions.

~~~
somebear
You could start with the simple question "who will be hurt if I do not publish
this information?" I have a hard time finding anyone who would be hurt if the
finder of iphone had handed it over to the bartender, apart from Apple's
competitors.

Like it or not, real journalists make these distinctions all the time.

~~~
ugh
“Like it or not, real journalists make these distinctions all the time.”

It‘s their job. Finding stuff that’s worth publishing, checking all the facts
and writing it up nicely. That’s journalism in a nutshell.

------
rbranson
The guy bought something that was obviously stolen. This was willful behavior.
He spent $5,000. Come on! This article was written as if he saw it sitting on
a table in a bar and took pictures of it.

~~~
madmaze
How was it stolen? It was lost. The finder tried to return it and when he got
turned down with no success, he turned around and sold it. The person who did
the wrong doing was the finder and not Chen.

~~~
halostatue
A good-faith attempt was _not_ made, IMO. A manager of an Apple store
certainly would have been a good person to return it to. A note to Steve Jobs
would have gotten their attention, and it's not like no one has his email
address.

You're right that the finder did the most wrong thing here, by selling the
lost phone (at which point, IMO but IANAL, the phone was stolen because the
finder no longer had any intention of making any further effort to return the
lost phone to the rightful owner). However, Gizmodo/Gawker/Chen are not
blameless as buying stolen goods is itself a crime.

------
nollidge
That's all well and good, but the author is neglecting to mention the fact
that there was a stolen item involved here, which is the entire point.

~~~
nostrademons
Right.

If you take away the whole bit about this being a 4G iPhone, the facts are
something like this. Guy leaves cell phone at a bar. Cell phone is picked up
by another patron. Instead of leaving the phone with the bartender, finder
takes it home. Finder fires it up, logs onto FaceBook, discovers who the phone
belongs to. Instead of contacting the phone's owner, finder sells it to Gawker
for $5000.

Gawker makes halfhearted attempt to contact Apple. Gawker knows who phone
belongs to, yet never makes an attempt to contact them directly and return it.
Gawker (to our knowledge) never tells Apple "Hey, this is Gawker Media, we
have one of your development phones". Gawker takes apart phone and runs a
story. Gawker exposes phone's owner as the most unlucky engineer within Apple.

If it were my phone (even aside from the dev phone aspect), I'd be pissed. I'd
probably press charges. If it were just a matter of losing my phone, okay,
these things happen, I should've been more careful. If it were a matter of
losing my phone, someone picking it up and not knowing how to contact me,
okay, that's understandable. But if someone picks up my phone, knows exactly
who I am, and then _sells_ it instead of giving it back, how is this not
theft?

------
sh1mmer
I think as Gruber pointed out previously the material point here is a criminal
action may have been committed rather than just a breach of a civil contract.

Leaking information about product launches is one thing stolen goods is
another. If Gizmodo's actions are ok, does it open the door for protection of
the press when an employee of a company decides to sell them stolen materials?

~~~
Judson
I'm so tired of hearing "Gruber" in a context that comes closer and closer to
meaning "the one and only way of looking at the law".

Yea, I enjoy his blogging, but his bias is surely towards whatever Steve Jobs
whispers in his ear.

The fact of the matter is: This wouldn't be a big deal if it was _Nokia's_ 4th
gen phone, or a CD of Windows 2012 a Microsoft Employee left laying around.

I'm no lawyer, but lets be honest, if this isn't innocent intent (a legal
defense against Receiving Stolen Property: <http://www.shouselaw.com/stolen-
property.html>) I don't know what is.

Hell, without Gizmodo, Apple would have never gotten the phone back!

~~~
rimantas

      Hell, without Gizmodo, Apple would have never gotten the
      phone back!
    

The guy who lost the phone called the bar several times to find out if anybode
gave the phone back. If the guy who took the phone had done that he
should—gave the device to bartender, the Apple would have the phone back
easeily. Of course, there would be no story for Gizmodo in that case.

~~~
ewjordan
From the link Judson posted (not the text of a law, but some sort of legal
advice link):

 _You can't be convicted of a California Penal Code 496 charge if you intended
to return the property to its owner or the police when you bought or received
the stolen property.14

However, this defense will not apply if you decided to return the property
after you illegally received it. Similarly, it will not apply if you
originally had the intent to return the property, but later decided to keep it
instead._

If this is accurate, then I'd suspect they're fine, at least in regards to the
receiving stolen property thing - they bought the stolen property with the
intent to give it back to its owner, and did so in a reasonable time frame
(whether or not they could have gotten it back earlier, they _did_ get it to
Apple within a couple days, which in most situations would be considered very
reasonable). They almost certainly decided before buying it to give it back to
Apple.

Whether or not they could be in trouble for trade secret violations or
anything else like that, I have no idea.

~~~
wtn
If he claims having had the intent to return, the act of disassembling the
phone will not have helped them.

------
sophacles
This absolutely cannot be the first time a prototype has turned up in some
reporter's hands via dubious means. So here is what I would like to know: When
Apple is NOT involved, what are the reactions? Not just of the company and
reporters, but people who don't really have any stake in it? I am genuinely
curious how much of the "apple did nothing wrong" crowd is just apple
fanboyism, and how much of the "gawker was in the clear" crowd is just anti-
appleism.

Another thing I would like to know: Gawker returned the phone when apple
finally admitted the phone was theirs. During the denial stage, why would
anyone be responsible for returning property to someone who claims "that isn't
mine". Forget apple: if someone sees a $100 bill at my feet and says, "Hey did
you drop that bill?" and I say "Nope, not mine", I can't later claim "that guy
stole my $100!".

Final question: since apple did get their property back, why are all these
people outraged? A large number of them have probably downloaded leaked
movie/tv/music. Many of them have railed against IP law in the US. But now
that it's Apple they are talking about the "terrible damages that come from
Apple not getting to talk about the phone on their own terms". I call
shennanagans.

------
Anechoic
FYI, here is On The Media's report on the situation:
<http://onthemedia.org/transcripts/2010/04/30/01>

"I think what makes it fundamentally less compelling is the fact that they
paid for this phone. If they had simply discovered this phone and took
pictures of it, no one would question that that’s a valid journalistic
enterprise. But what they were doing here puts them a hair’s breadth away from
what a fence does."

"I think that the prosecutor should have shown more restraint, ironically, in
the same fashion that Gizmodo should have shown more restraint. I mean, this
is not a mob case. You don't have Chen saying, leave the iPhone, take the
cannoli."

------
johnswamps
Can someone explain to me what the purpose of the shield law is? Whether Chen
is protected under it or not seems like a technicality to me. I'm more
interested in how the law is supposed to benefit society.

Is the idea that journalists should be able to keep their sources
confidential? Or that they should be be immune from retaliation for printing
unflattering stories of the government and police? Is it to protect whistle
blowers? Is it supposed to protect journalists who have broken the law?

~~~
philk
The idea is that a free press protects society and protecting people/sources
who publish things that the powerful don't want published facilitates this.

------
rajbot
How can a journalist, who writes a piece about the iPhone 4G proto and then
spends half his article praising "good hard reporting", get the name of the
product wrong? s/G4/4G/

~~~
philk
Just because someone makes a trivial mistake does not invalidate their
argument.

~~~
Maktab
But it does call into question their command of the facts and the small yet
important details of the situation. In my opinion it was quite evident
throughout the article that Malone had not studied the situation sufficiently
and did not seem to be aware of the California penal code provisions which can
make lost property stolen, the Wired story which implied that Hogan made no
effort to return the phone and what level of actual power over day-to-day
decisions Apple would enjoy on the REACT steering board. Are they even in a
position to order a raid? Malone writes as though that's an uncontested fact,
but that's hardly true.

