As I outlined in very broad terms yesterday in an update in this piece I don’t expect Apple to sue Gizmodo.
There are many reasons for this, not withstanding legal reasons. If Apple wants to get anywhere in a lawsuit related to the lost / stolen iPhone prototype they will at some point have to go after an individual, indirectly involve the police and criminal law. Something which won’t play well for them. No matter how wronged they may appear to be in this situation.
Ian Betteridge has an article on this that is worth reading. He sees Gizmodo and the “finder” falling foul of theft laws, and not trade secret laws. But in any case he doesn’t see it being a case that Apple will pursue either.
Here is his conclusion :
This case is very much not like the earlier ones that Apple brought against Think Secret and PowerPage. There’s no issue about trade secrets here. Once that phone is out in public, even disguised, it’s no longer got much in the way of trade secret protection.
Trade secrets law
I spent a long time looking at the issue of trade secrets back when the Think Secret/PowerPage case was going on, which gave me a little insight into the issue. And my take on it is no, Apple can’t claim violation of trade secrets because Gizmodo published the details of the phone.
Why not? Because in order to be classed as a trade secret, you need to “take reasonable steps” to keep it secret. In this case, unless the Apple employee had actually stolen the phone, by allowing it out in public Apple did not take reasonable steps – and hence cannot enjoy the full protection of trade secrets law.
By my count, our unnamed iPhone finder has violated California’s lost property law in two different ways, and could easily be charged with theft because in doing so he misappropriated lost property pretty wilfully. On the statements that Gizmodo have made about the efforts he made to contact Apple, I’m pretty certain that he didn’t do enough, and even if he did, once he got no response he should have handed it over to the police rather than selling it.
Gizmodo, on the other hand, gets off relatively lightly by only being up for a potential charge of receiving stolen goods (assuming the theft charge is also brought). A year inside for Messers Denton and Chen, and a big enough set of damages to bankrupt the company may ensue.
Or it may not. In fact, I think the odds are that Apple will make no attempt to get criminal charges pressed (and it’s pretty unlikely the police would pick it up otherwise), and will take no civil action against the finder of the phone.
Why not? Because I don’t think there’s any benefit to them to doing so. Getting dragged into what would undoubtedly be a long-running case, involving a website which would undoubtedly play the “chilling effects” “press freedom” card wouldn’t benefit them.
But you can bet that Gawker won’t be getting any press access to anything from Apple soon.
I think that sums it up perfectly.
Categories: Apple, Speculation
Tags: gizmodo, iphone, Prototype
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