gotten to the really interesting and amusing part: armchair legal interpretations. There have been a number of stories, but my favorites so far was this: www.technovia.co.uk/2010/04/has-gizmodo-broken-the... This morning, Gruber gave his expert legal opinion, too: daringfireball.net/2010/04/gizmodo_prototype_iphon...
Without getting into my own interpretation of the (supposed) events that led to the greatest gadget scoop I've ever seen -- and whether it was indeed ill-gotten -- I think it bears noting that there are almost never scoops in the tech world that are not born out of some illegality. At Engadget, whenever we'd publish a breaking story that no one else had (a great example is this week's awesome Dell Lightning leak: www.engadget.com/2010/04/21/dell-lightning-the-ult... ), what you are actually witnessing is the act of someone providing a scoop that betrays their team, breaks their NDA with at least one party (if not sometimes more), and possibly violates trade secret law -- no ifs, ands, or buts.
Publications are well within their journalistic rights to publish this information, but the process behind the scenes isn't always pretty. I've had sources whose employers have spied on them and, in some cases, terminated their careers and upended their lives. I don't want to go into more detail than that, but bearing some responsibility for those instances (even if only indirect, since I believe good pubs don't solicit scoops) is something I carry with me. (Somehow I'm reminded of the meat packing industry: people don't want to see the cows slaughtered behind the scenes, they just want to enjoy their steak.)
So anyone who's ever worked to break a story -- and Gruber has had some damned decent scoops -- should probably know a little better than to get up on a high horse about the letter of the law, because these situations aren't always black and white. I'm not saying there's zero culpability here, or that Gizmodo's circumstances were in any way crisp, or that they weren't extremely cavalier about certain aspects of the situation (like publishing the name of the engineer who lost the phone, which I am strongly opposed to), but it's a hell of a lot easier to pass judgment and blockquote penal code than it is to break real, industry-shifting stories.
Discussion about
I've been following the iPhone 4th-gen story pretty closely (as I'm sure many have), and now that the initial shock and awe has settled, we've…
My favorite part of the whole story was that some OTHER drunk guy was the one who both noticed the abandoned phone and picked it up. This OTHER guy was the one who thrust possession of the phone into the source's hands. Doesn't that seem a little fishy?
Go back and review basic law concepts: Apple suing Think Secret for trade secrets made that a civil case - NOT a criminal offense.
Thanks for that, but still, it's not criminal if Apple or any other private interest is doing the suing.
It's obviously an important issue, however, in this day and age where new IP laws
are so obviously being created in alignment to industry interests, instead of the 'public good'.
It's obviously an important issue, however, in this day and age where new IP laws
are so obviously being created in alignment to industry interests, instead of the 'public good'.
Yes, Apple sueing is civil. However, if the Feds wanted, they could pursue since it could be considered that there was economic gain on Gizmodo's part.
Personally, I think nothing's gonna happen. Apple will turn the other cheek. Just my opinion.
And if Apple doesn't persue, the Feds won't either.
Personally, I think nothing's gonna happen. Apple will turn the other cheek. Just my opinion.
And if Apple doesn't persue, the Feds won't either.
Sorry, Ryan, but as much as I respect you, I take what you say about this with a grain of salt, since Brian Lam is a pal (as you say elsewhere on this site). I appreciate John Gruber's opinion. Did he claim to be a lawyer? If so, I missed it. He did do his research, though. Thanks for weighing in.
Ryan, you're comparing *scoops* - information gained which may or may not break NDAs vs what Gruber is arguing is THEFT, and grand theft at that. Pretty rich comparison. Engadget provided a *scoop* by being the first to display the pictures first; Gizmodo (Gruber argues) engaged in theft and more despicably character assassination of the Apple engineer while protecting their sources of Apple's property.
You're all arm chair pundits; that's why we come here and Daringfireball (honestly, I come back to gdgt for what I see as you and Peter's *expert* gadget punditry, NOT the social gadget network you've created here). You're the best in the business at this sort of stuff - I know you aren't in a position to provide real legal advice but that doesn't mean you can't have an opinion (you certainly did when discussing the HTC v. Apple patent brewhaha).
We're never going to receive real "expert" legal opinion (that being professionally binding and expensive advice) by people who also are experts on Apple, that's means John's view is the best we've got. Got a countering view that 'complicates' what Gizmodo did ? Write it up! Snarky comments on the line that "pffft, these hosers aren't lawyers" add very little to the conversation. I come here to hear your "interpretation of the (supposed) events" - not solely hear you complain about other bloggers/journalists.
You're all arm chair pundits; that's why we come here and Daringfireball (honestly, I come back to gdgt for what I see as you and Peter's *expert* gadget punditry, NOT the social gadget network you've created here). You're the best in the business at this sort of stuff - I know you aren't in a position to provide real legal advice but that doesn't mean you can't have an opinion (you certainly did when discussing the HTC v. Apple patent brewhaha).
We're never going to receive real "expert" legal opinion (that being professionally binding and expensive advice) by people who also are experts on Apple, that's means John's view is the best we've got. Got a countering view that 'complicates' what Gizmodo did ? Write it up! Snarky comments on the line that "pffft, these hosers aren't lawyers" add very little to the conversation. I come here to hear your "interpretation of the (supposed) events" - not solely hear you complain about other bloggers/journalists.
I guess I felt you teased us in saying "without getting into my interpretation"; we want to hear it, if and when you can give it to us. That's why we come here. If you can't tell us the full story, tell us why, and while some will bitch, most will understand.
I fully understand there are legal complications in journalists / bloggers doing their jobs, but there are lines that (typically) don't get crossed. Gruber fully admits to this, but drew a line at theft of personal property. In a gadget-world where software increasingly dominates, this POV is obviously a little outdated, but I think it still stands. The average person feels very differently about stealing a physical CD or boxed copy of Windows 7 Professional compared with downloading a mp3 or diskimage.
Likewise, thousands of people not in the Apple developer program are running the beta of iPhone 4.0 on their device, but I bet many of those same people think what Gizmodo did crossed a line. Strange, and a little hypocritical, but true.
I fully understand there are legal complications in journalists / bloggers doing their jobs, but there are lines that (typically) don't get crossed. Gruber fully admits to this, but drew a line at theft of personal property. In a gadget-world where software increasingly dominates, this POV is obviously a little outdated, but I think it still stands. The average person feels very differently about stealing a physical CD or boxed copy of Windows 7 Professional compared with downloading a mp3 or diskimage.
Likewise, thousands of people not in the Apple developer program are running the beta of iPhone 4.0 on their device, but I bet many of those same people think what Gizmodo did crossed a line. Strange, and a little hypocritical, but true.
Let's not forget that in validating whether the phone was even a fake, Gruber called around to his "insiders" to find out about this device. Surely those guys were breaking their NDAs in talking to Gruber.
No argument that this isn't criminal activity, only worthy of civil action, but nobody seems to mind that Gruber has no problem being on a high horse about the ill gotten nature of what will be a $500 device, but _actively_ calling insiders and have them risk their (most likely) $100K+ salaries/livelihood so that he can write an indignant blog entry.
You might argue that his sources are willing participants, but if Gruber didn't ask, would these sources have called him and given that information to him?
Gruber is clearly classier than Gizmodo, and doubtfully engaged in criminal activities to get his stories, but is he really able to take the _ethical_ high ground on this whole thing?
No argument that this isn't criminal activity, only worthy of civil action, but nobody seems to mind that Gruber has no problem being on a high horse about the ill gotten nature of what will be a $500 device, but _actively_ calling insiders and have them risk their (most likely) $100K+ salaries/livelihood so that he can write an indignant blog entry.
You might argue that his sources are willing participants, but if Gruber didn't ask, would these sources have called him and given that information to him?
Gruber is clearly classier than Gizmodo, and doubtfully engaged in criminal activities to get his stories, but is he really able to take the _ethical_ high ground on this whole thing?
How does Gruber quoting California's penal and civil code re: theft NOT add to a conversation over the legality of what Gizmodo did ? That's precisely what any lawyer would reference (in addition to a wack of cases for interpretation ), and it should be the starting point for when pundits decide some legal concern is worth arguing about.
No lawyer would volunteer their LEGALPROFESSIONAL OPINION on a blog! He's not cherry picking anything; he picked the specific sections on the civil & criminal code, which is a great start towards actually discussing the topic at hand, rather than using cheap rhetoric like "Gruber's not a lawyer, so he doesn't have a right to discuss the possible legal implications of what Gizmodo did".
Feel free to disagree with him, I just wish people would actually aruge how what Gizmodo did ISN'T theft, rather than point fingers.
Feel free to disagree with him, I just wish people would actually aruge how what Gizmodo did ISN'T theft, rather than point fingers.
Hi Ryan, thanks for the link. As I noted on my post, reporters do often have to walk a close line when it comes to the law. When I was doing tech news, I skated on thin ice plenty of times - and more than once had companies threaten me with law suits.
However, I think that Gizmodo overstepped the mark on a couple of points. First, they should have known enough about the law to know that the device *could* be stolen. I'm not saying it was - I think that's to be decided - but it certainly could be, either actively (was it really "just found"?) or passively (did the finder do enough to return it to Apple?) There's a big difference between someone leaking a copy of a spec sheet to you and paying someone $5000 for what may actually be stolen goods.
Second, I think they really overstepped the mark by naming the engineer. I think that was just basically spiteful - the story of how the phone was lost/found didn't need his name in it to be a great story. Exposing the guy to huge amounts of ridicule is just rubbing salt into the wound. On a human level, it was a pretty obnoxious thing to do.
It also doesn't help their case, when it comes to whether or not the phone actually counts as stolen. As I think Gruber points out, if the finder had his name after a day or so of finding it (and he must have got it early, as the phone was bricked after a couple of days) then why didn't he call him at Apple, or message him on Facebook, or email him (it's not exactly hard to work out Apple email addresses). The fact that he didn't do any of that suggests he wasn't making much effort to return the phone... and Gizmodo should have noted that, and the law which turns actions like that from a civil matter to a criminal one.
Heck, if I could find all the relevant statutes in half an hour of Googling, Gizmodo should have been able to do the same. That they didn't suggests to me that they didn't really try very hard.
BTW - gdgt is a great site, congratulations on getting it up and running! :)
However, I think that Gizmodo overstepped the mark on a couple of points. First, they should have known enough about the law to know that the device *could* be stolen. I'm not saying it was - I think that's to be decided - but it certainly could be, either actively (was it really "just found"?) or passively (did the finder do enough to return it to Apple?) There's a big difference between someone leaking a copy of a spec sheet to you and paying someone $5000 for what may actually be stolen goods.
Second, I think they really overstepped the mark by naming the engineer. I think that was just basically spiteful - the story of how the phone was lost/found didn't need his name in it to be a great story. Exposing the guy to huge amounts of ridicule is just rubbing salt into the wound. On a human level, it was a pretty obnoxious thing to do.
It also doesn't help their case, when it comes to whether or not the phone actually counts as stolen. As I think Gruber points out, if the finder had his name after a day or so of finding it (and he must have got it early, as the phone was bricked after a couple of days) then why didn't he call him at Apple, or message him on Facebook, or email him (it's not exactly hard to work out Apple email addresses). The fact that he didn't do any of that suggests he wasn't making much effort to return the phone... and Gizmodo should have noted that, and the law which turns actions like that from a civil matter to a criminal one.
Heck, if I could find all the relevant statutes in half an hour of Googling, Gizmodo should have been able to do the same. That they didn't suggests to me that they didn't really try very hard.
BTW - gdgt is a great site, congratulations on getting it up and running! :)
agree with crawford. Breaching a contract is not breaking the law. You end up in a different court, for a start.
Sure, one set of law that dishes out $$$, another that dishes out jail time and criminal record. No difference at all.
Honestly, I think they published his name to help draw attention away from themselves and what they'd done to get the prototype. In the original story (which has since changed), they only had five words about how it came into their possession. It really read like they had something to hide.
It's a fine point since I used NDAs as a proxy to refer to trade secret law -- which I've since clarified in my post. Yes, breach of NDA won't find you in jail, it'll find you in court; violation of trade secret law by way of breach of NDA could find you in jail, though, and I think a lot of companies (like Apple, for example), consider this kind of stuff trade secret.
I will say, given the timing with iPhone 4th-gen, my initial thought was that this was purely and blatantly reactionary from Dell to help keep potential customers from moving to (or staying on) iPhone. But when I looked closer, I started to notice the seams which made it feel totally unintentional -- lots of little telltale signs. Plus, I've received controlled leaks from Dell before (I'll save that for another time), and they were totally different than this kind of stuff. Still, the funny thing is Dell would have been brilliant to leak this in a controlled fashion in order to sucker punch their competition with what looks to be a genuinely good Dell / Windows Phone 7 device.
I seem to think this as well. You know that NEVER happens right? ;O
I don't think Gizmodo are defensible on this. Even assuming their story (and that of the "finder") is genuine, there are a few points.
1) Gizmodo must surely have contacts inside Apple that they could have given the phone to knowing it would get into the right hands. (Apple PR, for example?) I personally wouldn't have a problem if they'd taken some snaps, and posted about it after the fact. It still would have been exclusive.
2) You don't pay someone $5000 for something that is most likely a fake. You only pay them for something you think is most likely real. (Or maybe that's just me.)
3) Paying a third party for someone else's property is pretty dodgy ethically and legally. If it was an Apple prototype, then it rightfully belongs to Apple (unless he can produce receipts). If it's not an Apple prototype, then it's not worth $5000 (see above).
4) And then there's the whole outing of the engineer. He really didn't do anything wrong, and yet he's going to be known for the rest of his life as "That guy who lost the iPhone." It's bad enough that Gizmodo named him, but a large number of other outlets have passed on his name, making the whole thing worse. And yet, they still protect the source who clearly has done something wrong. That just seems out of whack to me.
Of course, I'm not a lawyer, nor do I live in California (or even the US). I do think Gruber made some valid points that should be addressed by more than accusations of hypocrisy and armchair lawyering.
1) Gizmodo must surely have contacts inside Apple that they could have given the phone to knowing it would get into the right hands. (Apple PR, for example?) I personally wouldn't have a problem if they'd taken some snaps, and posted about it after the fact. It still would have been exclusive.
2) You don't pay someone $5000 for something that is most likely a fake. You only pay them for something you think is most likely real. (Or maybe that's just me.)
3) Paying a third party for someone else's property is pretty dodgy ethically and legally. If it was an Apple prototype, then it rightfully belongs to Apple (unless he can produce receipts). If it's not an Apple prototype, then it's not worth $5000 (see above).
4) And then there's the whole outing of the engineer. He really didn't do anything wrong, and yet he's going to be known for the rest of his life as "That guy who lost the iPhone." It's bad enough that Gizmodo named him, but a large number of other outlets have passed on his name, making the whole thing worse. And yet, they still protect the source who clearly has done something wrong. That just seems out of whack to me.
Of course, I'm not a lawyer, nor do I live in California (or even the US). I do think Gruber made some valid points that should be addressed by more than accusations of hypocrisy and armchair lawyering.
"... it's a hell of a lot easier to pass judgment and blockquote penal code than it is to break real, industry-shifting stories."
It's a hell of a lot easier to break real, industry-shifting stories when you don't allow nuisances like "laws" and "ethics" to get in your way. I know the lines can be blurry at times, but it's clear that Gizmodo definitely crossed not only an ethical line but also possibly a legal one.
It's a hell of a lot easier to break real, industry-shifting stories when you don't allow nuisances like "laws" and "ethics" to get in your way. I know the lines can be blurry at times, but it's clear that Gizmodo definitely crossed not only an ethical line but also possibly a legal one.
Good points. I just think there is a difference between being justifiably proud about a great gadget scoop, and being assholes about it. And I'm reminded of Brian Lam's heartfelt and honest post about the rumors of Steve Jobs' health a couple years ago, how he realized that there was a line he wasn't interested in crossing anymore, and the difference between posting about gadgets and posting shitty gossip.
Looks like he still has a lot to learn or he wouldn't have published the name of the engineer or his Facebook profile picture. It added absolutely nothing to the story.
How is this an "industry-shifting story"? Because Apple's wall of secrecy has been broken due to an apparent honest mistake ?
Yeah I agree. This would have only been an industry-shifting story if it involved a first generation product like the iPad or OSX running on Intel (remember that?). If you look beyond how the phone was acquired, it's just an incremental improvement over the last version. The only way I can see the phone itself being incredibly newsworthy is if someone caught it running Flash.
I find this whole thing to be getting quite old, it's turning into a legal/ethical story rather than a tech story. I follow tech not so that I have to hear this stuff, I follow tech because I want to follow tech. I think most people using this site would agree. I know that this stuff is important and all, but I'm getting tired of it.
Yes, it is not black and white, but this specific instance contains buying stolen property (not just obtaining information). I think that there is a pretty big difference between the buying of stolen property and the obtaining of information that may have not been legally clear.
I haven't read ALL of the comments listed (there are many) but it seems to me that we are assuming that 'getting a scoop' is perfectly ok, and a justifiable thing. (and now we are debating 'how far is too far?'). Why?
And I really don't think a story/scoop of this magnitude could have involved any other tech co. Again, Apple comes out rosy and makes huge media waves with no effort.....
I actually hope you're right.
I find the concept of journalists / bloggers getting into criminal trouble for acquiring 'scoops' very unsettling, even if they're primarily motivated for page hits. It's part of the reason I think so many are upset with Gizmodo: posting pictures and details are one thing, but their actions almost appear they want to be sued by Apple, which could then proceed down the criminal route. No journalist/blogger wants Federal attention; their pockets are far too stuffed by corporate $$$.
I find the concept of journalists / bloggers getting into criminal trouble for acquiring 'scoops' very unsettling, even if they're primarily motivated for page hits. It's part of the reason I think so many are upset with Gizmodo: posting pictures and details are one thing, but their actions almost appear they want to be sued by Apple, which could then proceed down the criminal route. No journalist/blogger wants Federal attention; their pockets are far too stuffed by corporate $$$.
And now it's turning into a criminal investigation:
news.cnet.com/8301-13579_3-20003308-37.html?tag=nl...
news.cnet.com/8301-13579_3-20003308-37.html?tag=nl...
Yes, they shouldn't have revealed the name, but this might just have just forced Apple not to fire the guy for making a human mistake. Had no one known the name of the guy, I doubt that Apple would still let him stay, and no one would have known. It just keeps me reminding of that Foxcomm employee.
I'm confused by this reasoning. How does making the name of the engineer public reduce his chances of being fired? Obviously, Apple knew who lost the phone within about 24 hours of the event. Now his name is public, which means everything he's ever posted on Twitter, Facebook, Flickr, etc will come under scrutiny for information about the new phone.
Gizmodo even called his desk at the Apple campus, which means other journalists and organizations might do the same, further distracting the engineer from his job.
Gizmodo even called his desk at the Apple campus, which means other journalists and organizations might do the same, further distracting the engineer from his job.
If that was Gizmodo trying to force their hand, it becomes part of their 'Holier Than Thou' mission statement after the story was first posted that I have issues with. That public naming post was edited more times than I can count. And it was done to reflect how the engineer was a nice guy and didn't deserver punishment.
Maybe they shouldn't have put his name out there in the first place.
Maybe they shouldn't have put his name out there in the first place.
