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…
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.
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'.
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.
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 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.
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?
Feel free to disagree with him, I just wish people would actually aruge how what Gizmodo did ISN'T theft, rather than point fingers.
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! :)
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 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.
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 $$$.
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.
Maybe they shouldn't have put his name out there in the first place.