Gizmodo and the Prototype iPhone
daringfireball.net
daringfireball.net
Apple would be insane not to do exactly what Gruber predicted.
Because 960x640 is exactly 2x the existing iPhone resolution in each dimension existing apps and their artwork can be doubled. Since the screen is approx the same size (unlike the iPad) this results in an image that's entirely indistinguishable from previous models, and may even be better if things like font and path rendering are "aware" of the higher res.
If they had chosen any other resolution then existing apps would need filtering when rendered fullscreen which in many cases would almost certainly resulted in a worse, or at least oddly different, look than the original. I'm sure Apple would have preferred not to go with 960x640 for cost reasons, but they couldn't very well release a phone where 160,000 apps look worse than when running on the previous model.
A candidate perhaps, but not at all obvious. It's a higher pixel density than any device Wikipedia knows about: http://en.wikipedia.org/wiki/List_of_displays_by_pixel_densi.... Other alternatives that would have been at least as plausible would be to keep it the same ("only geeks care about meaningless specs like that") or go to 720x480, where 1.5x scaling wouldn't be that bad.
People are throwing terms like "industrial espionage" around. Why is publishing such details of unreleased products from internal sources, as Gruber seems to take great delight in doing, not the same thing.
If one of his moles gets fed tagged information and the release gets traced back to him, resulting in a firing are we supposed to all gang up on Gruber too?
Presumably, Gruber has never stolen any of Apple's property and is not under any contractual obligation to keep silent about Apple. His sources, on the other hand, are probably violating NDAs when they talk to him.
Perhaps under your system of morality, Gruber is at fault here: if he receives information from someone who he knows is violating an NDA, then he should immediately cover his ears, avoid publishing what he learned, and report the person to Apple's legal department. I'm not a lawyer, but I don't think that's the position of US and California law. Under them, Gruber's sources are being naughty, while Gruber himself is not.
Gruber: I’m not offended by their decision to obtain this unit and publish everything they were able to ascertain regarding it. [...] Second, publishing the name, photographs, and personal information of the Apple engineer who lost the phone is irrelevant to the story. It was the dick move to end all dick moves.
It seems to me that he made it pretty clear that he does not take offense with reporting about the prototype per se. Rather, he condemns the way that Gizmodo chose to handle the whole affair.
Besides, getting someone fired by reporting "tagged" information that they willfully gave to you is not even in the same ballpark as publishing his name, putting up a big photo of him and linking to his Facebook page.
But simultaneously it represents the self-destruction and denigration of gizmodo's brand. Personally I'm not a fan of the slightly-warmed-over-PR-release and tabloidesque tech journalism that is so common these days. I'd rather have honest personal reviews and hard-hitting technical critiques than gadget porn, gossip, and rumor mongering.
Not hiding in the bushes: detaining the photographed subject illegally for weeks. It would have been equivalent if pictures had been taken while the Apple engineer was playing with the phone, thinking he was alone.
I'd suggest one of the main reasons that Gizmodo published the guys name is that Gruber implied immediately that they stole the prototype (http://daringfireball.net/linked/2010/04/19/gizmodo-rumors) without giving any evidence - not really the act of a 'ethical' journalist. It's fine to decide that you think it's theft if you go by the letter of the law (AFAIK Gruber isn't a lawyer, so it's just an uneducated opinion) but to stoke the flames and then be 'offended' is pure hypocrisy.
Also, just because Gruber isn't a lawyer doesn't make his opinion uneducated.
I thought a legal education was a pretty lengthy process - I stand corrected.
Given what I saw, I should not be surprised that there is a lot of bad science journalism out there.
How is that a valid response? Leaving aside your mischaracterization of what Gruber actually wrote, what does publishing the guys name, not to speak of his picture and other information, get them that couldn't have been accomplished without the personal details, aside from a bunch of page views?
That's a bit harsh; there's a large difference between an "uneducated opinion" and a "carefully researched assessment by a non-lawyer". Based on your criteria, no journalist could ever write about any topic but journalism.
How does that support the case that the phone was lost? Publishing the name of the guy who found the phone might support your case, but publishing the name of the phone's owner isn't helpful - you can steal something from a known owner.
It doesn't matter if he found the thing next to spare thing on the street. The finder knew who owned it (who was carrying it) and did not contact them. The buyer knew damned well that it belonged to Apple and not some random guy--they're in the tech journalism (apologies to ethical journalists) business for Christ's sake. I can't think of many people more qualified to know that the phone was property of Apple, Inc.
And that makes it wrong.
We really don't know what would have Apple security team done to this guy if this issue didn't become to public eye, don't you think?
No, this is "industrial espionage" through illegal methods, and it's only OK-ish to do if it serves some public good (justice). And no, this is not journalism, unless by that you mean intentionally breaking the law for your own profit.
I really hope the person that stole that phone and Gizmodo are prosecuted for theft.
Because of dicks like these we ended up with the current patent system.
"Dude! We screwed up, but... look at this guy! Man he likes BEER!"
Thats professionalism right there.
There is no "industrial espionage" here. Industrial espionage would, at the very least, require Gizmodo to intend to steal the phone from the outset, which clearly isn't the case. As far as trade secrets go, Apple gives up all claim to them as soon as that phone leaves its campus.
Gizmodo probably crossed some line in what it did and how it handled this story, but accusing a gadget site of industrial espionage is just ridiculous.
The act defines a trade secret as information, including a formula, pattern,
compilation, program, device, method, technique, or process, that:
i) derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use, and
ii) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
But suppose, to stick with the car example, the driver of a prototype car parked in a public lot and then dropped the keys, or was careless enough to leave them in the ignition. Would it be legitimate for someone to drive away and then sell it to a car fansite so they could pop the hood and partially disassemble it? There's a large qualitative difference between passive observation and active taking into possession. And I don't think opening the case is a proper means of evaluating a lost item, especially not when one has already ascertained the identity of the owner (by recognizing him from his facebook page, where he was easily contactable).
Thanks for taking the time to flesh out your argument. I was hoping you'd refer me to the statute for industrial espionage, by the way, because I think you might be surprised at its scope and specificity. Would you like to, or shall I?
Let's assume a different sequence of events, to help separate the issue of trade secrets and stolen property. Let's say that the phone was left behind at the bar, someone picks it up and hands to you, thinking your friend, who is currently in the wash room, left it behind. You've had a couple of beers and you know your friend has an iPhone, so you put it in your pocket for when he comes back.
10 minutes later (there was a line) he returns and you order another round, forgetting about the phone in the process. You don't remember you have it until you get home at 3am, having had a few more glasses of "golden liquid" (as Gizmodo would refer to it).
Realizing you have someone's phone, and it's probably not your friend's, you turn it on, seeing the last thing the guy used before leaving it behind: his Facebook page. Good, you have a way to contact him. You thumb through the apps, try the camera, and then decide to go to bed.
In the morning, you wake up groggy, and find the phone has bricked itself overnight. You didn't write down the name from the Facebook page because, well, you were drunk. So now what? You are now in possession of a "lost" item, meaning that, according to California law, you are "a depositary for the owner, with the rights and obligations of a depositary for hire."
While pondering your situation, you notice something odd about the device. It looks like a 3GS with a case, but the buttons aren't the right shape. You take the cover off to investigate. It is immediately clear that this is not a 3GS. Knowing you have something interesting on your hands (even if it's a fake) you grab your trusty Nikon, and photograph the device from every angle.
Once you're satisfied you have good pictures of it, you put the case back on and head down to your local police station to turn in the device, as required by California law. When you get home, you sell the photos you took to Engadget for $500.
According to my (limited) understanding of trade secret law, Apple would have no case against you on the basis of trade secrets because, by bringing the phone out in public and leaving it behind at a bar, they clearly did not make reasonable efforts to keep it secret.
Of course, the events of that night aren't nearly as clear, but, unless Apple can show that the phone was not lost but stolen (and not technically stolen because the guy misappropriated lost property, but stolen from the guy's pocket) there is no basis for a trade secret suit.
This whole narrative leaves out the potential for other charges, like criminal theft by misappropriating lost property, or a civil suit against the "finder" for misappropriating lost property, but that's kind of the point. I'm trying to separate the issues so we can discuss them a little more clearly.
Naturally not, but one might easily lose the keys, and I read your example of the car as a proxy for the phone prototype.
I see where you are going with the bar example, but I'm not sure I get your point. Presumably in the case of the Facebook identity the finder of the phone remembered it at least well enough to assist Gizmodo with finding the Apple employee. And obviously it did not get handed into police or anyone else, (like the bar or an Apple store).
Anyway, rather than arguing by increments I'll cut to the chase: if I were actually a lawyer seeking to take action against Gizmodo, I'd be basically arguing a claim of misappropriation under section 3426.1.(b).2.C of the California civil Code (which is basically the Uniform Trade Secrets Act), as follows (heavily edited for clarity):
"... (b) Misappropriation" means: ... (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: ... (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
In plain English, we might dismiss the guy in the bar as a tipsy opportunist who was told there was a reward on offer (and who had no especial duty to guard Apple's secrets, vs. a duty to hand in lost property in general). However, Gizmodo had reason to know an iPhone prototype would be a secret thing: they published entire articles demonstrating their knowledge of Apple's secretive policies, as well as recent C&D letters from Apple's outside counsel asking Gawker to stop offering money for secret information. As I said before, they may not have known for sure if this device was a real Apple prototype, but they surely hoped that it was - it wouldn't have had news value if it wasn't. If it had just been a first-gen iPhone, there'd be no story. They materially changed their position by exchanging money for it. And they knew it had fallen into the hands of the seller by accident (at best).
If the fellow who sold the phone had instead taken pictures and set up weird_found_iphone.com, he could plead ignorance about the significance of his find. But it seems very hard to me for Gizmodo to claim the same thing. $5000 says they perceived the thing to have major newsworthiness. The prototype didn't cease to be secret just by virtue of its being lost and found; were that the case, then it wouldn't have been worth paying for. On a side note, there have been successful prosecutions for sale of trade information by a waiter employed to help cater a boardroom dinner; the careless sharing of company information to this non-employee's benefit didn't lessen the information's secret nature.
So Gizmodo purchased the device with the specific intention of exploiting its secret nature. The employee who was (we assume) field-testing it was meant to keep it secret, and did so by leaving it in its plastic disguise as an iPhone v3. He failed to keep it securely on his person as he should have: but whether careless, drunk, or both, this was surely a mistake. It's not as if he handed it to someone saying they should check it out, and then wandered off and never retrieved it. Nor did he disclaim ownership by throwing it in a garbage can or something. Loss is involuntary by its very nature; the guy called the bar repeatedly in hopes of finding it (as any reasonable person would expect). And while the finder might not have appreciated just how Apple would feel about their prototype, Gizmodo could hardly have been more aware, being in receipt of formal warnings from the company.
So my argument is that they distributed and used the info (as news to attract traffic and sell ads); they did so knowing it belonged to Apple; and knowing that Apple would not be happy; and knowing it was a prototype of an unreleased product; and knowing that it had come into the seller's possession by accident; and handing over a large sum of money because they understood the huge potential benefits of gaining this specific information.
Don't even get me started on the legalities of dissecting, photographing, and publicizing the innards of the thing.
If you were right, then every new product leak that Gizmodo, Engadget, The Wall Street Journal, and the New York Times report on would be a violation, which clearly isn't the case. As would every teardown article that's published by iFixit and the like.
Apple may have a case for theft against the "finder", and they may have a case for purchase of stolen goods against Gizmodo, but they don't have a trade secrets case against either.
Rather than attempting to bulldoze you, since we disagree about this fundamental distinction and have no judge handy to rule on it, here's some extra information which I feel underscores my view of things, and which you might find interesting:
http://euro.ecom.cmu.edu/program/law/08-732/TradeSecrets/Not... Washington U. Law quarterly, particularly pp945-950;
http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/conten... a more general article (but a little out of date, from 1999);
http://www.computerworld.com/s/article/9175839/Apple_demands... about the Gizmodo incident in particular, with some commentary by an IP lawyer. FWIW, Mr Church seems to agree with the basic argument I've been making, although obviously we're all limited by our awareness of the actual facts.
Gruber is clearly a fan of Apple (and other companies), but it's not as if he doesn't criticize them when he feels it is appropriate, e.g. he has been very critical of the App Store policies. Just because he doesn't criticize them when you feel it's appropriate doesn't reduce him to being a cheerleader.
I can understand if someone (including me) not really agreeing the way Gizmodo handled this situation, but are you offended by this?
Sometimes people are offended by what they perceive as injustice or impropriety even when it doesn't directly appear to harm them. You may not be such a person, but I am not surprised they exist.
I'm astounded that they outed the engineer who they claim "lost" the phone. They appear to have taken the word of a law-breaker with a $5,000 incentive to lie that the phone was lost and not stolen, and on that basis they publicly humiliate the engineer. They are either exceedingly cruel or this is an act of misdirection intended to bolster their "defense" that the phone was actually lost and that neither the person who approached them or themselves were able to return the phone promptly.
A very nasty bit of business indeed.
http://ai.eecs.umich.edu/people/conway/TS/OlympicGenderTesti... http://www.guardian.co.uk/sport/2008/jul/30/olympicgames2008...
Gruber is the type of guy who is more likely to go by the dictionary definition than popular usage.
While others might find what gizmodo did distasteful, Gruber finds it offensive. When I think about the word "offended", I always think about it something personal that has been directed at you as opposed to your feelings towards something happened to someone you have never met in your life. But again, english is not my first language so it might seem off to me more than a native speaker.
Gruber is a tech journalist. When another person who claims the role of tech journalist acts like a sociopath, it reflects badly on everyone in the profession.
And that's not some abstract philosophical exercise. Gruber's job just got a lot harder. Who among us would trust a journalist now? How many Apple engineers just said a silent prayer and swore to never breathe a word to any journalist, ever? Hell, with guys like this on the loose who needs the legendary wrath of Steve Jobs? I might rather be denounced and fired by Steve Jobs [1] than publicly humiliated in the tech press.
Journalists with ethics need to complain about this loudly and forcefully. Otherwise they will be presumed to be among the journalists without ethics.
---
[1] Once the shock wore off, it would be something of an honor to be personally denounced by Steve Jobs. It's not like you wouldn't be in elite company.
The humorous thing is Gruber leaks information about Apple all the time, so it must only be wrong in his mind when you have proof (or well, show the proof). Apple got their hardware back and in the end all that happened was rumors were confirmed. It's an ego hit for Jobs, but he could use a few of those.
What Gruber and a lot of other folks are upset about was the entirely unnecessary outing of the specific engineer who lost the prototype phone.
Gruber retweeted this at 1:41 AM on the 19th, 18 hours before the outing: "Here's an interesting fact: in California, the finder of a lost item is required to tell the police and turn it over to rightful owner."
He called it stolen on his first post about it, just after Gizmodo posted:
http://daringfireball.net/linked/2010/04/19/gizmodo-rumors
So quite literally since he found out Gizmodo had the device he has been offended by it.
And, honestly, in such a case as this almost anyone is going to have the first reaction along the lines of "this device is almost certainly stolen" no matter how good the purported finder's tale may be...and this one's excuse seems pretty threadbare.
Engadget (apparently) reacted by publishing the photos that accompanied the shady proposal; e.g. they got the story but stayed out of the morass. Gizmodo (again, apparently) reacted by accepting the shady proposal...this is what dismays Gruber who, as someone noted above, is going to be painted with the same (admittedly) broad brush as a result and suffer its consequences, large or small.
Why were Republicans offended by a health plan that was eerily similar to their own plan only a few years back? Why were Democrats offended by that plan originally? They chose sides before and had no choice.
I still think that Gizmodo's abuse of their IP is appalling.
I don't give Gizmodo pageviews because of this incident.
I don't give Engadget pageviews because it feeds Calacanis' troll ego.
Also, wikileaks isn't hosted in the US and thus doesn't have to obey to American laws. They also did not steal those videos these are copies and in my IANAL opinion is completely different.
1. Powell takes the photo that he posted to Facebook, but uses the front-facing camera to do it. (Hey, field testing under real-world conditions!) 2. Seller notices this (iPhone with a front-facing camera? WTF??). 3. Seller puts two and two together ("cha-ching" noise, dollar signs roll up in their eyes, etc.). 4. Seller sticks around for a while, picks Powell's pocket at the first opportunity, and bails. 5. Seller lays low for a while to see if word gets out, thinks up a plausible story, then makes the rounds of the tech blogs. 6. Profit!
If this is what Apple believes happened, it's unlikely they'd take any action (assuming they take action at all) until after the phone is announced/released. Starting that ball rolling now would be too big a distraction from the actual launch. But after that it could get very ugly for Gizmodo very quickly.
In Australia there's a specific Code of Ethics that journalists are supposed to work by. http://www.alliance.org.au/media_alliance_code_of_ethics/ - other countries may have similar things, but it basically sets out the role of good journalism.
You can easily argue the public interest was served by releasing the wikileaks video. The iPhone reveal is just tech industry gossip.
You got me there Apple! Well played.
If only they could generate buzz and media coverage in some other way, they wouldn't have to resort to these transparent and desperate gimmicks.
That said, did Apple even win these lawsuits, or were they just a baseless threat?
So... If an employee wants to spill the beans, that's fine. But bribing an employee to spill the beans is not fine. I think that's relevant to the flap about the iPhone given that Gizmodo paid $5,000 for the phone, giving the so-called finder of the phone a tremendous incentive to turn it over to them instead of returning it as seems to be their obligation under California law.
(People ignore the law all the time. They eat plants that are illegal to eat. They cross the street against the light. They steal their work contacts for their next job. They post the internal documents about their employer's plan to kill small children to wikileaks.
Selling a phone you found in a bar doesn't seem like much of a risk in this context -- best case, you get $10,000 and to stick it to Apple. Worst case, you get $10,000 and 20 hours of community service.
If Gizmodo gets in legal trouble, the solution is simple -- next time, we'll just see this story in a non-US media outlet. People want interesting reading more than they want to follow the law.)
But we have an entirely different situation with Gizmodo, and they may face an entirely different outcome.
The possibility that crime will get outsourced because you enforce your laws should be irrelevant. You do what you can to enforce your laws in your jurisdiction. Here in Canada we happily arrest Canadian citizens who travel overseas to abuse under-aged sex workers.
... never heard of viral marketing?
As per the strict letter of law, many of our day to day activities would be wrong too! Considering that there were no deaths or loss of money, and Gizmodo is willing to return it back to Apple, I would give Gizmodo a clear pass!
If many of your daily goings on would be wrong in the strickest sense, IMHO you're doing it wrong. Ethics matter. Rule of law matters.
No, I'm sure not perfect myself. But we all should try our best and correct/learn from our mistakes and try to achieve the high road.
Coming to the point, you did not mention what part of Gizmodo story you think is ethically wrong. Ethics matter, rule of law matters, try our best, learn from mistakes, etc. are kinda universal truths, everybody knows. Say something concrete to the point!
Please explain where spirit and ethics that are broken in your opinion.
AFAIK, Gizmodo's business is that: gather sources, inform interested people what it can. If we forget letter of law, this is how i see it:
(1) No where i see the proof that it was stolen. (2) Gizmodo paid the guy some amount to get pictures, etc. and is actually willing to return it to Apple. I still don't see the problem if it gets returned to Apple. (3) Gizmodo revealed the Apple employee's name to public, which is kinda crossing the line -- but given that a guy recently committed suicide for such a fault, i give Gizmodo a pass.
Having your major screw-up exposed for the entire world to see is liable to make you less prone to suicide? I hope no one ever decides to be that kind to me...
Actually, after reading that article and seeing it confirmed that it's a real iPhone prototype, I felt a strong sense of disappointment. There won't be any surprises on this front at Apple's announcement, because of Gizmodo.
As unbearable as it might be, anticipating new Apple gadgets is quite fun. Gizmodo robbed us of the fun. It's a bit like someone shouting "the butler did it!" halfway through a movie. Sure, you wanna know who did it, but not that way.
A slightly tweaked exterior and front facing camera are not remotely surprising. The quadrupled resolution is a much bigger deal; are you as annoyed with Gruber for ruining that?