I’m having trouble getting my mind around the legal case against Gizmodo editor Jason Chen, who purchased an iPhone prototype that was apparently mislaid in a bar, published photographs of it on the Gawker-affiliated blog, and then returned it to Apple when the company asked for its property back.
Here’s a thought experiment: Suppose you’re out walking and a neighbor says to you: “Look at this cool dog I found. I think I’m going to keep him.” You think you know who actually owns the dog–let’s call him Steve–and so you offer the neighbor some money to give it to you instead. You take a picture of the dog and make a flyer that says, “Steve, I think this is your dog.” When Steve sees your flyer and calls you, you give him his dog back.
Now, are you guilty of grand theft dog? I’m no lawyer, but I have to think the answer is obviously no–because you have no intention of keeping Steve’s dog.
The main difference between the dog situation and the iPhone case is that–even though in each case the stolen property is brought to the attention of and returned to the owner–the primary motivation for purchasing the property is not returning it, but publishing a news story about it. Does this journalistic intention really transform the action from a good deed into a potential felony?
It seems that what the 17 police agencies involved in this case are protecting is not Apple’s physical property but its secrets. The spectacle of cops seizing computers from a journalist’s home in defense of corporate secrecy is, as CJR‘s Ryan Chittum (4/26/10) suggests, more than a little creepy.
Is there any US or CA law against sharing others’ trade secrets when the one who shared wasn’t bound by a confidentiality agreement? (Perhaps the law would be unjust if it existed. But does it exist?)
FAIR’s blog needs to get rid of this spam from other blogs/sites.
Are we supposed to see some equivalence between knowingly buying and then publishing a company’s closely guarded trade secrets and intellectual property, which causes real measurable financial harm in its disclosure to competitors, with publishing pictures of a missing dog?
There are laws forbidding the former, not the latter. Recall that these are the same people who offered a bounty to anyone who would give them access to an iPad months before its release and were forced to retract that offer. They were offering money to someone to break the law: to divulge trade secrets. Apple, like any other company, is entitled to their trade secrets and that’s precisely why there are laws against divulging them regardless of whether you’ve signed a confidentiality agreement.
Any “journalist” slimy enough to offer money to encourage others to break the law is not showing much in the way of “intent to commit journalism.” It’s a crime and they knew it was a crime, but they did it anyway.
It Does make “trade secret” sound quite a bit like “National Security”… that marvelous catch-all that’s used to hide embarrassing issues more often than legitimate “threats to the nation”.
Besides, if one’s ‘trade secrets’ (which I assume are unpatentable, or else they’d have THAT protection already) are outed, well, Someone is going to profit… so it’s not a total economic loss, in the larger sense… right? And Apple already has the head start… ^..^
So web sites have the right to publish videos of small animals being tortured for viewers’ gratification under the protection of the First Amendment…but not pictures of an iPhone prototype? Something is wrong here.
Thanks I was not aware that Gizmodo offered a bounty for Apple prototypes. It seems like the criminal is the guy who sold the phone. Supposedly he tried to return it. How hard is it to call or go to Apple HQ and ask the receptionist to find out if something is missing. He might not have gotten the $5K that he seems to have sold it to Giz for but it seems like by Giz offering the bounty he knew for sure who to sell it to.
You might want to look at this:
http://www.networkworld.com/news/2010/042910-apple-comes-down-hard-on.html?source=NWWNLE_nlt_security_2010-04-30
Gee, if you put it that way, I guess the choice is you either make that sort of theft legal–so Pepsi can learn Coke’s recipe and Coke can have Pepsi’s because some “journalist” somehow acquired and published them–or you just rewrite press releases; that middle ground of independent thought and analysis one might expect of a real journalist being some vast empty wasteland.
There are legal limits imposed on the circulation of “trade secrets,” and there are legitimate reasons for such limits. These are not in order to hide gross violations of the law. The fact that Halliburton management chose to look the other way while their male employees raped female employees could probably not be construed as a protected trade secret or business practice. Trade secret laws protect investment in research and development, intellectual property the company paid to develop. Gizmodo wasn’t exposing criminal activity or even proprietary “business practices.”
Don’t confuse Apple’s clear interest in protecting it’s intellectual property with the rights of a free press. There was no public interest served in publishing Apple’s trade secrets. This was done not to inform the public of something they have every right to know: this was done to turn a profit for Gizmodo at Apple’s expense under the guise of journalism.
If the same information were to appear on one of Apple’s competitor’s web sites through the same acquisition method used by Gizmodo, do you think they could claim journalistic license and free press protection?
Leaving your iphone or wallet in a bar does not mean you intended to give it away. It belongs to you. The dude sold it rather than returning it or giving it away or trashing it. Gizmodo was engaging in what is know as “checkbook journalism”.
I would have thought the complete absurdity of your scenario would have thrown you onto the idea that maybe what Gizmodo did isn’t on the up and up. Who in the world, upon seeing that someone else has Steve’s dog would offer the person money to buy the dog? Why don’t you instead tell him it’s Steve’s dog and call Steve, or, if he refuses to return it to Steve, call the police? Or, even after you offer them money, why do you put up flyers advertising that you have the dog instead of calling Steve?
The fact that the primary intention was to publish a news story is completely irrelevant to whether the law was broken. Try this: take any felony and imagine you commit it because your primary intention is to publish a news story: Murder, felonious assault, burglary, etc. Would you really think that somehow journalist shield laws were relevant?
The analogy which is the premise of this article is inapt at best, and entirely deceptive.
Gizmodo did not use “journalism” to notify Apple that they had their lost device. In typical puerile fashion they deliberately hid behind journalism like their Mama’s skirts in order to expose Apple’s trade secrets to their competitors for fun and profit. That was the entire purpose of the purchase, as was their earlier (forcibly retracted) solicitation. The solicitation exposed their lack of ethics and crossed a legal line. By following through with it later, albeit with a different device, they did the same thing.
If you can wrap your head around the idea that stealing intellectual property and publishing it for profit (while causing deliberate financial harm) can be confused with journalism then good luck with that head.
Leaving aside Gizmodo’s ethics, I think the key question here is whether a crime was committed, right?
Nothing was stolen by them, was it? The device was mislaid, appropriated by someone, and sold to Gizmodo, who published images of it, and then sought to return it to Apple, if I have the facts straight.
If the appropriation can be considered theft, then perhaps someone at Gizmodo can be charged as an accessory after the fact?
If not, then why was the constabulary involved? Is revealing trade secrets a crime, regardless of whether theft was part of the equation?
In any event, don’t you have to look askance at this level of law enforcement response?
Can someone speak specifically to the questions above?
Much obliged.