But it was not stolen: the Apple employee who had been in possession of the prototype, Gray Powell, admits that he got drunk and accidentally left the phone at the bar. It was not stolen. It was lost.
It's still just a single phone, a phone that's been returned to its owner. Maybe Apple was damaged by the loss in a way the law recognizes. If so, then they can file a civil lawsuit just like everyone else with a grievance against someone else.
The part that's troubling here is how, if anyone else reading this post reported to the police that an employee had lost a ready-for-market prototype and that a blog had published pictures of it and then returned it, the police would politely file the report at the bottom of the pile and then get back to pursuing real crimes. Apple, however, gets an unannounced seizure of a journalist's home and work computers.
Such preferential treatment demands an explanation.
So, buying stolen merchandise or trafficking in trade secrets is fine as long as you write a story about it?
-- http://twitter.com/TheMacalope/status/12917912411
Quoting Gruber:
Journalist shield laws are about journalists being able to protect sources who may have committed crimes. They’re not a license for journalists to commit crimes themselves. Gawker is making an argument that is beside the point. They’re arguing, “Hey, bloggers are journalists.” The state of California is arguing “Hey, you committed a felony.”
http://www.businessinsider.com/henry-blodget-gizmodo-search-...
Btw, quoting Gawker:
"We may inadvertently commit journalism. That is not the institutional intention."
The most Gawker revealed was (1) features readily observable on the outside and (2) information printed on the components when the device was opened. Obviously, none that would be considered a "trade secret" once the iPhone was up for sale on the market.
Can a feature list be considered a trade secretly few months before the items released? That's a tough one, particularly because Apple itself released this iPhone into the wild, where it was found by a third party. It's not like Gawker snuck into Apple's campus and found some research for products contemplated way in the future, product so far off that Apple had not yet filed a patent on the technology. (By way of background, the whole purpose of trade secret law is to protect things that a person doesn't want to disclose publicly by patenting. Almost by definition, a trade secret has to be something that was patentable, and so far nothing on the prototype iPhone looks like it was patentable.)
All of which brings us back to the central point: it's debatable if Apple even suffered a legally-cognizable injury by virtue of someone bringing publicity to a device Apple, through its employee, left out in the wild. In light of that, and in light of the serious concerns about journalistic shield, REACT should have shown caution. Instead, they took the most aggressive approach they could have.
For example, if Apple is negotiating pricing for current models and other party was willing to pay more pre-leak because the did not think the next gen would be as large of an upgrade.
"I walk into a coffee shop and see an unattended laptop sitting on one of the tables, so I decide to close it up and take it home with me."
Nobody I've talked to seems to think that this scenario is okay or consider the laptop "lost". So I don't know why people are so quick to consider this iphone lost.
Or did Apple (or the police) assert that IP and/or trade secrets were stolen, in addition to (or exclusion of) the phone itself?
Gray admits he left the phone at the bar, and then came back later (presumably sober, the next day) and was upset when it wasn't there. He may as well have given it away. The phone was not stolen. It was carelessly lost.