Why Is Apple's iPhone Prototype Entitled To More Justice?

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.

Now, if I may paraphrase, you're saying 'all this for a single phone that is going to be sold to millions anyway? pfff.' But you know it's a prototype, if you've followed the story closely, you know that Gawker did publish "more than information the appearance of the phone": http://gizmodo.com/5520876/the-next-iphone-dissected - such things are not readily ascertainable by proper means, so I don't think IDX v Epic systems is a good comparison.

You say there are 'thousands of businesses [that have been wronged] and yet Apple [...] gets preferential treatment.' I can't agree. A quick search of justice.gov for the terms ''economic espionage' arrested' - a different jurisdiction, to be sure, but a similar kind of enforcement - yields over 100 cases of the police power being used on behalf of companies' intellectual property - and as we both know, a comprehensive search through legal databases would turn up many more. We both know that IP theft or misappropriation isn't about the physical devices, DVDs or sheets of paper which may go missing, but about the large sums of money and time that go into their development: which money and time represent the assets and jobs of a good many people, and may have a large bearing on their economic security.

I don't know about Philadelphia, but here on the west coast US customs regularly find shipments of counterfeit devices; here's a recent (pre-Gizmodo) story about a batch of 2000 such units: http://abclocal.go.com/kgo/story?section=news/local/peninsul... The numbers seized here are trivial in comparison to those sold abroad. Although black markets are notoriously hard to estimate, extrapolating from recent assessments by Nokia suggest that annual production of counterfeit iPhones might amount to ~2.5 million units (http://communities-dominate.blogs.com/brands/2010/03/revised...). Obviously not every purchaser of a fake would or could buy a real device, but even if we assume the number of actual lost sales is only 20% of fake sales, based on the typical price differential of fake and real units, we're still looking at something in the region of a quarter-billion dollars a year in lost revenue.

Now, while this is not Gizmodo's fault - and like other gadget blogs, they frequently 'out' fake devices as fake - showcasing the interior construction of the new iPhone several months ahead of release is surely a significant, if incidental, assist to black market manufacturers. What engineer wouldn't be delighted to get a head start on their design cycle? I'd wager that a fake iPhone v4 appears for sale in China before the release of the genuine device by Apple, anticipated in June.

I mean, suppose this happened to you - a few months out from important litigation, a draft of your brief is accidentally exposed - perhaps a paralegal briefly mis-configures the wi-fi settings on a laptop, allowing a 'guest' to access it and open a file. I've seen it happen. Some freewheeling industry blog buys the document, disseminates it widely, and gleefully mocks your staffer's preference for triple-cream lattes and weak understanding of wireless networking for added yuks. Your case is strong enough on its merit to litigate successfully, but the incident would still be a nightmare for your firm, would it not?

Now, to address your headline question of whether the police should be equally or more assiduous where missing children are concerned - undoubtedly. But the contrast you draw is a poor match in time, scope, and geography, and borders on saying that one enforcement action is unjustified because an unrelated police department once failed to serve the public effectively, with a horrible outcome.

I'm glad to have found your blog, which has many interesting and thought-provoking articles. But I really feel your approach to this episode has been somewhat one-sided. True, there are issues of press freedom at stake whenever police find cause to investigate members of the media. But there are also issues of wilful misappropriation of private IP, publication resulting in private harm but no obvious public benefit, and a management team carelessly exposing junior employees to civil and criminal liability.

Disclaimers: I'm not an attorney, have never owned any Apple hardware, software, or stock, have no connection with anyone even remotely close to this case. I admit having a bee in my bonnet about this; in a past life I was a tech journalist at PC Magazine (UK) and feel personally offended by Gawker Media's cavalier ethical outlook.

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.