OT - Lawyers, assemble (lost prototype-iPhone legal Q's)
http://www.engadget.com/2010/04/26/police-investigating-lost-iphone-pro…
http://www.citmedialaw.org/blog/2010/lost-and-found-california-law-and-…
If the true owner is not known and the item is worth more than $100, then the finder has a duty to turn it over to the local police department within a reasonable time. Id. § 2080.1. The owner then has 90 days to claim the property. Id. § 2080.2. If the true owner fails to do so and the property is worth more than $250, then the police publish a notice, and 7 days after that ownership of the property vests in the person who found it, with certain exceptions. Id. § 2080.3
Thoughts? Civil/Criminal charges forthcoming?
I was just reading some stuff about this - I can't say anything authoritatively about the law, but the things I was reading made it seem like they are acting as though it was stolen. In that sense, the team at Gizmodo was contacted about the "prototype" and refused to return it. Gizmodo was claiming something along the lines of "You can't prove it's yours" and Apple was essentially "Oh yeah?! It has my name on it!" It will be interesting to see what transpires. The police said initially that Jason Chen wasn't under arrest or detained, that he could go at any time, but the property was being confiscated and searched for contact with the "Owner" of the phone - supposedly, an Apple employee.
I think Gizmodo cooperated when apple contacted them asking for the 'device' to be returned.
And they can rather easily subpoena at&t for the call logs, to validate as to whether the seller had attempted to call the original owner or Apple to return the device.
I think it's mostly Apple rattling Gizmodo's cage for outing their new gadget. Apple is famously tight-lipped about their upcoming toys, and having a prototype on display like that had to be like seeing your hot young girlfriend in Playboy.
They could probably stretch and make a claim that Gizmodo knew that the phone was not the property of the "seller", and so they were basically receiving stolen property. There's no way it would go to trial, though. Gizmodo turned the phone back over to Apple, so I doubt they'd get much more than a slap on the wrist under any circumstances.
but the line:
"then the finder has a duty to turn it over to the local police department within a reasonable time."
strikes me as the key. Since the phone was returned within a week, that seems to be reasonable.
I don't know if Gizmodo returned the phone to Apple directly or the police, which may be important.
More importantly, the CA Police really have nothing better to do?
You hadn't heard? Compton is totally cleaned up. LAPD is bored and figures they might as well occupy a few officers for a weekend. Gotta justify that payroll.
The police don't get to question it or suggest they have other things to do instead.
(Not a law talker, but a friend is, in San Mateo no less.)
inherently I think the phone wasn't stolen persay, but the way in which the items were 'handled' gives the phone the stolen distinction.
Apple is a brilliant for not firing that guy; if they did, it would be reasonable to assume they considered the item 'lost', and not stolen.
Said that the fact that the finder sold it, for a hefty fee, to Gizmodo has a great deal to do with the stolen distinction, especially since the Apple tech was calling the bar frantically in the hopes of recovery and finder and Gizmodo called other places (including Apple) to verify what they had, but not to contact the owner to arrange its return.
April 26th, 2010 at 11:38 PM ^
the minute the finder shifted away from trying to find the original owner and went about hawking it to gadget fiends
April 27th, 2010 at 12:56 AM ^
for the sake of argument, let's assume that Gizmodo's description of how the events transpired are true.
if the buyer made tried making contact with Apple, multiple times (with no success), then according to CA law, he is required to turn it over to the police as the item's value exceeded $100. He didn't. If he keeps the device (and does not sell it to Gizmodo), is he able to keep the item? No.
This is going to be a great case, since there are so many moving pieces to all of this.
But I really can't figure out an angle for Gizmodo to get themselves out of this; they sealed their own fate when they paid $5K for the phone.
agreed. they knew it was stolen property and received an unfair advantage and gain by utilizing the device for profit (publication, etc). by law they were required to notify apple and hand it over to the police. hell, worst case they should have contacted the Apple spokesman. there's about 15 different things he should have done if he was going to play the 'innocence' game. perhaps most poignant: if you're going to blog about it, have your attorney hold on to the phone. they can handle all of the back-and-forth on the issue while you send out a blip along the lines of... "Apple, i have your shiny product, the one with serial code 286383608363860" and release updates for a couple days about what it is without going so far that you piss Apple off.
What ever happened to the old saying "finders keepers losers weepers"?
Also, it's not "finders sellers" now is it?
Generally, when I took Property Law, I thought the principle was, legitimately, "finders keepers. . . except if the rightful original owner wants it/can prove it's his. Then you have to give it back."
BUT. . . then again, selling something you know is stolen is illegal. So, apparently, if you legitimately find something, it belongs to you until the real owner asks you for it. As such, you can probably sell it.
Now, this is just from my 1L law school classes which I took like 4 or 5 years ago, and is obviously more along the lines of "general principle." I found it fascinating that there was the law in CA (or perhaps just this municipality/county) that someone cited above, which makes a person go through all of these hoops when they've found something. I imagine most people never do, and I wonder what the public policy behind it was-- perhaps for exactly this type of situation (i.e., one of the Silicon Valley tech companies losing a prototype?). Because honestly, otherwise, if every time someone found something worth $100, they went through all of the proper steps, it would be an inefficient allocation of governmental resources and would really be contrary to public policy, I'd think. Sort of in the same way that, yes, you can sue someone over something worth $100, but you do realize that even if you represent yourself, you're going to have to pay $400 just to file your case, etc., and the costs/time involved make it so I tell friends that basically anyone can fuck you out of a couple grand and it's not worth it to go after them. (i.e., filing a jury demand, the cost of your time, parking every time you go to the courthouse downtown, taking time off work, enforcing your judgment if you DO win which may take years, etc. . . )
Annnnd....end tangent.
That is what the CA law-talkin' friend said -- this would generally be a misdemeanor and not any sort of issue that anyone with sense would pursue EXCEPT the dude who found it sold it for $5000 to Gizmodo and Gizmodo knew it wasn't his to sell -- he told them he'd found it, they called around to try and confirm what they had, and then they were stupid enough to blog about it all, including the buying it from a guy who found it in a bar part.
Law-talkin' friend also says that the law they are trying to cite to claim the search warrant was illegal is about protecting journalists from revealing sources, which is not at all what they are trying to do. The question whether bloggers = journalists is also out there on the table, but probably not relevant.
Basically, he thinks they got some very poor legal advice. Or probably, none at all. Probably jsut posted on a sports message board. ;-)
April 26th, 2010 at 11:02 PM ^
There is precedent case law that effectively says that blogger=journalist at least in Cali which should be the legal jurisdiction since that is where Apple is, where the situation occurred and where the journalist lives and works. Specific case is: O'Grady vs Superior Court. PDF of the decision can be found at: http://www.citmedialaw.org/blog/2010/police-seize-gizmodo-reporters-com…
And while the search warrant was likely legal, the scuttlebutt out here in the valley is that it was executed illegally. The search warrant specifically forbade the cops from executing a night time search. Time of warrant: 7PM, Cops still searching at 9:30PM+. Shoddy job all around by the cops.
As far as trying to return the phone. The person who found it did on more than one occasion try to contact Apple to return the device but apple reps kept thinking it was a joke.
April 26th, 2010 at 11:41 PM ^
you're getting the facts mixed up. finder hawked it. the website who bought the stolen item contacted apple.
April 27th, 2010 at 12:33 AM ^
Is that the finder tried contacting apple:
http://gizmodo.com/5520438/how-apple-lost-the-next-iphone
http://gizmodo.com/5520729/why-apple-couldnt-get-the-lost-iphone-back
So far no one has actually disputed the story as told by gizmodo.
April 27th, 2010 at 12:37 AM ^
i apologize. i was centering more on the fact he went and sold it after busting it open. then the guy who bought it tried making calls again.
...simply calling Apple's public phone number isn't the only reasonable thing to do--nor even particularly reasonable--in this case, as is required by CA code 485. If you find someone's possessions in the bar, the reasonable thing to do is to either A) give the item to the bar owner, or B) since it is a phone and you got the guy's name from it (as was clearly the case since Gizmodo publicly shamed the poor guy), try to contact the person directly.
Under no circumstances do you say "well, I called your huge company's front desk and they didn't believe me so I'm going to sell it for five grand". Gizmodo should never have purchased the device. If they had been shown it, taken pictures, poked around with it, fine. Then they are merely performing journalism. Paying money to acquire property is the problem here. I've no idea what they were thinking.
Journalism shield laws are to protect sources of information, not to provide cover from prosecution when you've publicly admitted to a crime. CA's shield law clearly refers to shielding journalists from *contempt* charges for refusing subpoena. If Gizmodo were covering, say, illegal arms shipments, there would be no question that they shouldn't actually acquire stolen military hardware, right?
April 27th, 2010 at 11:26 AM ^
Was a predator drone? Wouldn't you want to acquire one, legal or not? They are so awesome.
The finder acquires a certain property right in the phone when he picks it up; i.e. it's his until Apple comes calling (with the requirement that he make a reasonable effort to return it). When he sold it to Gizmodo, he can only transfer the property right that he owns - the finder's right.
So, if he transferred his interest to Gizmodo, they would have the same rights and obligations as any finder. From their side of the story, it sounds like they were contacting Apple about returning the phone, and when Apple asked for it back, they returned it. Everything seems above board there... (or at least, that's how I'd describe the situation if I were Gizmodo's attorney).
Admittedly, I haven't started outlining for Property Law yet, so this may not be exactly correct.
EDIT: going over my notes, it looks like the above would be true if the phone were lost, meaning the owner had no idea where to find it. In this case, the phone was mislaid, meaning the owner accidentally left it behind but probably knew where it was. Generally speaking, for mislaid property the "locus owner" (bar owner, in this case) is supposed to get possession of the item until the owner retrieves it. I'm not sure if the finder committed theft by taking it with him... maybe.
Sorry for the brain dump, but this is what you get for bringing up Property Law while I'm studying for finals.