Posts Tagged ‘California’

Are You Kidding Me? Apple Loses Another iPhone Prototype in Another Bar

Thursday, September 1st, 2011

Apple iPhone with stick figure elements, shown running awayPhoto: Apple. Deft artistic embellishments: Me.

Last year we followed the story of Apple’s iPhone 4 prototype, which was lost in a Silicon Valley beer garden. It was a blog law story because Apple went in heavy against tech blogger Jason Chen, getting a multi-jurisdiction police task force to raid to his home and seize a bunch of his property. And this was after the guy who found the phone tried to return it to Apple and Apple refused to return his calls.

Now, it’s happening again. This time an iPhone 5 prototype was dropped in Cava 22, a tequila bar in the Mission District of San Francisco.

As CNET, who broke the story, reports:

Apple electronically traced the phone to a two-floor, single-family home in San Francisco’s Bernal Heights neighborhood, according to the source.

When San Francisco police and Apple’s investigators visited the house, they spoke with a man in his twenties who acknowledged being at Cava 22 on the night the device went missing. But he denied knowing anything about the phone. The man gave police permission to search the house, and they found nothing, the source said. Before leaving the house, the Apple employees offered the man money for the phone no questions asked, the source said, adding that the man continued to deny he had knowledge of the phone.

I don’t know what’s more unbelievable, that Apple lost another iPhone, or that the San Francisco Police Department investigated a lost-property claim. When I lived in SF, a friend of mine got his car broken into and his radio stolen, and when he filled out his police report and asked the officer if they would be investigating it, they looked at him like he was crazy. I guess if you are Apple, you can get great customer service from the SFPD. That’s kind of ironic since Apple itself is pretty deficient in the customer service area.

By the way, take it from a law professor, don’t give the police permission to search your home. Arrgh.

Here are last year’s posts about the Jason Chen / iPhone 4 mess:

Busy-Body Legislating: California’s New Law on Tweeting Jurors

Thursday, August 25th, 2011
Assemblymember Felipe Fuentes in a suit smiling with arms crossed

Assemblymember Felipe Fuentes, author of California’s latest silly law (Photo: ASMDC)

A new California law signed by Governor Jerry Brown threatens jurors with jail time if they tweet, blog, or otherwise use the internet to communicate about their trial. The bill is the handiwork of Democratic San Fernando Valley Assemblymember Felipe Fuentes.

I’ve looked at the text of the law. At best, it’s silly. At worst, it’s hurtful.

The first thing the law does put an additional requirement on judges when they make their admonishments to the jury. Under Code of Civil Procedure §611, judges already have to explain that jurors are prohibited from talking about, researching, or disseminating information about the trial. The new law requires that judges “clearly explain,” that this admonishment “applies to all forms of electronic and wireless communication.”

Ooooh. Notice how cleverly the law was drafted with the use of the word “clearly”. If judges were merely required to “explain” this to jurors, there would be a huge loophole allowing judges to undermine the spirit of the law by issuing their explanation in an unclear manner.

To drop the sarcasm for a second, this strikes me as pure busy-body lawmaking. There’s no need to micromanage courtroom procedure through statute. Judges are completely capable of fine-tuning admonishments on their own. If this part of the law does anything, it seems to me it might create an argument for throwing out otherwise perfectly good jury verdicts on appeal. If a judge with decades of experience makes the mistake of issuing a standard admonishment, not complying with the technicality of the new law, there now appears to be a basis in statute for tossing the verdict. And even if the judge does the explanation, disappointed litigants can still quibble with the judge’s words, arguing that the issue wasn’t explained “clearly.”

Then there’s the aspect of the new law that’s been given the press coverage: Jail time for tweeting jurors.

Here’s what the new law adds to the list of misdemeanor offenses listed in Code of Civil Procedure §1209:

Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.

Note that before Fuente’s new law, §1209 already made the following a misdemeanor:

When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action, to be tried at such court, or with any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court[.]

and this:

[a]ny … unlawful interference with the process or proceedings.

The current law seems to cover everything of substance. The only thing the new provision does that I can see is make it a jailable offense to use the internet in such a way that is neither improper nor interfering. I guess I don’t understand why we would want to jail jurors under such circumstances.

Jurors are already the lowliest souls on the schedule of recipients of rights and liberties. Prisoners have more legal safeguards for their rights than jurors. Without committing or even being suspected of a crime, jurors are swept off the streets and detained against their will, their freedoms of expression and association instantly curtailed. Moreover, jurors can made to serve for months on end and can be sequestered from the rest of the world – all without due process. Is it really necessary to slap them around with threats of jail?

I poked around on Felipe Fuentes’s website. I don’t see any press release he’s issued about this regrettably successful project. Maybe he’s not too proud of it.

Last year, Governor Arnold Schwarzenegger vetoed a bill similar to this one because he considered current warnings to jurors to be adequate. He had some common sense. I’m sorry to see it gone missing in Sacramento now.

Kane Declares Victory Over Forever 21

Thursday, July 7th, 2011

Black feather cape with broochRachel Kane over at blog wtforever21.com has declared victory over Forever 21 in their nascent legal dispute. After Kane hired legal counsel and told the fast-fashion retailer their legal position was, in so many words, as silly as Feather Cape with Brooch ($39.00), there has been nothing but silence on the other end. So after Forever 21 failed to respond by Kane’s own imposed deadline, she interpreted silence as acquiescence and is now back calling out sartorial snafus on a daily basis.

In her words: “This is a dark defeat for MC Hammer pants, floral jumpsuits and blinged out mini hats, but a joyous triumph for those who like to make fun of them. Which is pretty much anyone with eyes.”

Note to bloggers who are on the receiving end of baseless legal threats: The way Kane handled this is instructive. Respond to the threatening letter with a patient explanation of how the claim is legally lacking, in a tone that is courteous but firm, and then say you’ll get back to doing whatever it is by such-and-such a date unless they give you a compelling response.

Congratulations, Rachel. Blog on!

Rachel Kane Should Look to Princess Diana for Inspiration

Tuesday, June 14th, 2011

Here’s a tip for the lawyers of Rachel Kane, the California blogger who has vowed to fight back against Forever 21′s attempt to shut down her blog with a bogus trademark lawsuit:

Make sure you check out Franklin Mint Company v. Manatt, Phelps & Phillips, LLP, 184 Cal.App.4th 313 (2010). It’s a wonderful case which allowed the Franklin Mint to advance its malicious prosecution claim against the prestigious L.A. law firm of Manatt, Phelps & Phillips for filing a baseless trademark and right-of-publicity suit. That suit had been brought by Princess Diana’s estate against the Franklin Mint for, among other things, manufacturing the Princess Diana Vinyl Portrait Doll with blue beaded silk gown (which retailed for $245 – WTF?).

I blogged about the decision last year. As I said then, it’s a great case for bloggers, because it shows that there’s a downside for thugsters overreaching on trademark theories. In the Franklin Mint v. Manatt case, the California appeals court found that there was no “probable cause” to claim trademark dilution or right-of-publicity infringement, and, therefore, Manatt could be liable to the Franklin Mint for maliciously bringing a groundless lawsuit.

Manatt argued vigorously that trademark law was too fuzzy and unsettled for the California court to allow a malicious prosecution claim to go forward. But the court disagreed, saying that the “application of fundamental principles of trademark law to the facts of this case show there was no probable cause to prosecute the trademark dilution claim.”

The same exact thing could be said about Forever 21 v. Kane.

WTForever21.com Blog Will Fight Forever 21′s Absurd Legal Threats

Monday, June 13th, 2011
Woman wearing leopard-print faux fur vest

Rachel Kane has vowed to fight for her right to make fun of faux fur vests and other Forever foibles. (Photo: Forever 21)

Jenna Sauers of Jezebel reports that Rachel Kane will stand and fight Forever 21′s threat to sue her unless she takes down her WTForever21.com blog, which lampoons the fast-fashion retailer several days a week.

And indeed, when I see something like the caveman-meets-drugstore-employee monstrosity at right, I personally can only ask, WTF?

Kane sent Jezebel the following statement, which, although written from her perspective, contains unmistakable scent of lawyer writing:

My site, WTForever21, does not infringe on any of Forever 21′s rights. It contains only criticism, commentary, and news reporting, all written in an educational and humorous manner, which are protected under applicable law. To the extent any of the material used on the site is in fact subject to intellectual property protection (which, in many instances, is by no means clear), the site’s incorporation of that material is a “fair use” under copyright, trademark law, and similar state law. It’s incredibly unlikely that any portion of the site would ever cause confusion in the minds of the general public about whether or not Forever 21 endorses or is affiliated with it. The blog in no way dilutes Forever 21′s trademark, as the company claims. If the company continues to makes threats that have no basis in law, my attorneys are prepared to vigorously defend me and seek all available legal redress against Forever 21.

In the meantime, I am leaving the blog up. I look forward to returning to blogging about fashion atrocities like lime green, faux fur covered vests and candy colored booty shorts on WTForever21.com.

I’m hoping the last sentence was penned by Kane herself rather than her lawyers. Nothing in law school prepares you for making that kind of unequivocal statement about booty shorts.

Anyway, Kane’s lawyers are right on for the most part. I must, however, register my disagreement with the characterization that it’s “incredibly unlikely” that anything on the site would ever cause confusion about endorsement by or affiliation with Forever 21. “Preposterous” is more like it.

Don’t Get Too Excited About Your Company’s Social Media Debut Yet!

Friday, May 20th, 2011

Headshot of Michelle Sherman and social media logo

Michelle Sherman of law firm Sheppard Mullin blogs about social media law

Michelle Sherman, a lawyer with L.A.’s Sheppard Mullin, has a new blog post Sherman’s post asks the question:

Is Your Company’s Social Media Launch Ahead Of Its Compliance Program?

What a buzz kill, huh? This is why people don’t love lawyers. You’re all excited about your company’s social media debut, and then all of a sudden you remember, OH YEAH, I HAVE TO THINK ABOUT THE LAW!. And then you have to pay by the hour, and all of a sudden you are really grumpy.

But, of course, Michelle is right. Any business going into social media as a way to win customers and make money ought to learn something about the law before they do. There are a lot expensive mistakes you can make.

And why, you may ask, why has the law thrown up a bunch of hurdles that make for those potentially expensive mistakes? It’s because there are a lot of people who want to use social media to rip off customers. So, basically, the unscrupulous folks out there ruin it for everybody. Next time you’re grumpy about legal bills, pause for a moment to send some bad juju the way of the sleazes out there who are the reason so many laws exist.

Anyway, Michelle’s post contains a nice rundown of the FTC v. Twitter lawsuit (settlement recently finalized) and the FTC v. Google Buzz settlement.

Zuckerberg is Officially a Californian, Sorry New York

Monday, April 4th, 2011

A federal court in New York, after thinking through the issue thoroughly, has decided that Facebook founder Mark Zuckerberg is domiciled in California. That means that the federal court will hold on to jurisdiction in Ceglia v. Zuckerberg, instead of kicking it to state court. Oddly enough, it doesn’t look like Zuckerberg’s Facebook profile information settled the issue. Evan Brown blogs it.

Prince Albert Takes Defamation Claim to Paris

Tuesday, February 22nd, 2011
Port of Monaco

Monaco. That's the prince's boat on the right. The big one. (Photo: CIA)

Libel tourism alert: The best place to vacay with your tarnished reputation continues to be Paris, France.

Prince Albert of Monaco is petitioning a Paris court to remove blog posts that His Serene Highness says are defamatory, according to a report by the Associated Press.

Robert Eringer, a blogger based in Santa Barbara, California, has accused the principality’s ruler of Olympic-Games-related corruption, saying he accepted the gift of a Russian-built dacha on Monaco’s outskirts. That’s suspect apparently because of its timing in relation to Sochi, Russia’s successful bid to host the 2014 Winter Olympics.

Albert is a member of the International Olympic Committee and a bobsledder who’s competed in several Olympics.

Eringer’s claim to expertise is that he is a former intelligence adviser to the prince. That sounds crazy, but apparently in a previous California lawsuit over backpay, court papers filed on Albert’s behalf confirmed that Eringer carried out “intelligence missions” for the prince.

Wow. Let’s just stop there for a second. What does Monaco need with spies? I guess that’s not fair on my part. If you’re going to have an independent sovereign nation, no matter how small (about 31,000 people and less than one square mile), you might as well do it up right with your own coinage, postage stamps, bobsled team, spies, and everything else.

But shouldn’t you have your own courts too? Why can’t Albert bring this action in Monaco? Is he afraid he won’t get a fair trial? Maybe it has to do with internet access. French wi-fi probably covers a large portion of the principality. Or maybe its just the allure of French libel law, as easy as a Sunday afternoon on the Champs-Élysées.

Awesome §230 Conference at Santa Clara Law

Thursday, January 27th, 2011

Seal of Santa Clara UniversityThe High Tech Law Institute at Santa Clara University School of Law is hosting a fantastic conference on March 4, 2011 about § 230, the safe harbor that shields online content providers from liability for defamation posted by users. It’s one of the most important legal aspects of blogging, and the Santa Clara event, called 47 U.S.C. § 230: a 15 Year Retrospective, offers a spectacular lineup of speakers. Look at this:

  • Kenneth Zeran, plaintiff in Zeran v. America Online (4th Cir. 1997)
  • Alex Kozinski, Chief Judge, Ninth Circuit Court of Appeals
  • Zoe Lofgren, U.S. House of Representatives, California 16th
  • Alex Macgillivray, General Counsel, Twitter
  • Kai Falkenberg, Editorial Counsel, Forbes
  • Cindy Cohn, Legal Director, Electronic Frontier Foundation
  • David Ardia, Citizen Media Law Project/Harvard Berkman Center
  • Chris Cox, Partner, Bingham McCutchen LLP
  • Patrick Carome, Partner, WilmerHale
  • Mike Rhodes, Partner, Cooley LLP
  • Maria Crimi Speth, Shareholder, Jaburg & Wilk
  • Eric Goldman, Santa Clara University School of Law
  • Susan Crawford, Cardozo School of Law
  • Nancy Kim, Cal Western School of Law
  • Felix Wu, Cardozo School of Law

The event is co-sponsored by Harvard Law School’s Berkman Center, Stanford Law School’s Law, Science & Technology program, the Berkeley Center for Law & Technology, the New York Law School’s Institute for Information Law and Policy, the Congressional Internet Caucus Advisory Committee, the EFF, and the Media Law Resource Center.

I can’t think of better way to earn five hours of CLE credit. And it’s free for law students, full-time law professors, the press, and public-interest attorneys.

Michelle Sherman on E-Discovery Applied to Blogs and Other Social Media

Wednesday, January 26th, 2011

Sheppard Mullin is one of those law firms that went full tilt on blogging as a means of rainmaking. They’ve got a ton of blogs. Not all of them are updated much. But their Social Media Law Update Blog is good stuff.

Michelle Sherman, an of counsel in the firm’s LA office, who has an interesting bio, has a post on how e-discovery rules apply to social media, including blogs. She recommends building off your e-mail policy as a starting point and checking regulations that are specific for your industry.

By the way, what’s interesting about her bio? She quit as a partner at Sheppard Mullin to do a year as an assistant public defender to do more trials. She then came back to an interesting mix of litigation and corporate advising.

Ha’p @kisbell.

Courtney Love Going to Trial for Tweet Libel

Thursday, January 6th, 2011

Courtney Love’s facing a civil trial in February for tweeting that fashion designer Dawn Simorangkir was a drug-pushing prostitute. If you’re looking to be a defamation defendant, that’s a good way to do it. Almost as on target as these folks.

Apparently Simorangkir was in a spat with Love over unpaid bills on a few thousand bucks worth of clothes.

I know an attorney in LA who sued Love a few years ago over unpaid wages owed to his clients. It was pretty funny to hear him describe his troubles in trying to serve the papers on her. I think he finally got her cornered at the Grammys.

But back to Simorangkir v. Love. THR, Esq. reports that Love may be planning a sort of insanity defense:

Love’s attorneys have their own witnesses, including a medical expert who plans to testify that even if Love’s statements were untrue, her mental state was not “subjectively malicious” enough to justify the defamation lawsuit.
That claim — something akin to an insanity defense for social media — suggests that Twitter was so appealing and addictive for Love that she had no appreciation for how the comments she posted would be received by others.

That’s just funny. And it really makes it sound like Love’s going down in flames. The only thing that makes Love’s litigation prospects look dimmer is this quote from her lawyer:

“We don’t believe there’s any defamation, and even if there were defamatory statements, there was no damage,” says James Janowitz, an attorney for Love.

But, you know, assuming just like THEORETICALLY that it’s defamatory to accuse someone of being a drug-pushing prostitute, we feel there’s a good backup argument on damages. Yikes.

Read the whole thing from Matt Belloni in THR, Esq. It’s totally worth it.

Finke Files Reposting Suit

Wednesday, October 13th, 2010

The Hollywood Reporter, Esq. reports that Tinsel Town blogger Nikki Finke of Deadline.com is pursuing a copyright infringement lawsuit in Los Angeles against BoxOfficeWorld.com, which allegedly reposted Deadline stories verbatim.

Hwd. Rptr.’s Matthew Belloni says the complaint is brought by Deadline’s parent, Mail.com Media Corp., against Arthur Meyerovich and Alina Kaganovsky, who are alleged to be behind BoxOfficeWorld.

SCOTUS October 2010 Term Gets Underway

Monday, October 4th, 2010

Front of the U.S. Supreme Court building

It's another first Monday at 1 First St. (Photo: Eric E. Johnson)

Today is the first Monday in October, and that means the U.S. Supreme Court begins a new season at 1 First St, NE. It will be Elena Kagan’s first time on the bench.

Here’s what’s on the docket that could have relevance to blogs:

Snyder v. Phelps — The Kansas-based Phelps family carries on a series of highly bizarre, religion-fueled protests of funerals of soldiers killed in combat. The convoluted theology is hard to understand, but Fred Phelps and his followers choose to picket services for fallen heroes as a way of warning the world of God’s wrath toward gay persons. No, I can’t explain it to you. But suffice it to say they take both crazy and mean to new extremes. The question for the highest court is whether the First Amendment shields Phelps and friends from state-law judgments for intentional infliction of emotional distress. (SCOTUS Blog, CMLP)

Schwarzenegger v. Entertainment Merchants Association — Cyberviolence squares off against the Constitution. (Level 9: The First Amendment. And the screen taunts: FINISH HIM!!!) A California law restricts the sale of violent video games to minors. Will the Bill of Rights protect underage gamers from Sacramento lawmakers? (SCOTUS Blog)

Jason Chen Getting His Stuff Back

Wednesday, July 21st, 2010

EFF’s Deep Links blog reports that the county prosecutors have now withdrawn the warrant they obtained to search Gizmodo blogger Jason Chen’s home during Apple’s desperate attempt to claw back its lost iPhone prototype: San Mateo D.A. Withdraws Controversial Gizmodo iPhone Warrant.

That means Chen will get all his stuff back. In April, members of the Silicon Valley’s R.E.A.C.T. law-enforcement task-force seized four of Chen’s computers and two servers from his home. (My posts: here, here, here, here, here, and here. All the posts together here.)

It’s ironic looking back at it all. Apple was so keen to protect the secrets of its G4 iPhone before the big product launch date. And now the ultrahyped gadget has turned out to be a total dog. Maybe Apple should have lost more prototypes in bars. That way, perhaps they would have gotten wind of the phone’s call-dropping problems when there was still time to change the design.

And this sad news just out today: The Associated Press reports via the NY Daily News: iPhone factory worker commits suicide over lost G4 prototype.

San Francisco Landlord Sues Housing Activist Blog

Monday, June 14th, 2010

In the SF Weekly: Landlord Sues Blog, City-Funded Nonprofit That Runs Blog.

According to the SF Weekly, landlord Rita O’Flynn is suing BeyondChron.org, a blog operated by housing lawyer-activist Randy Shaw, for defamation.

James Rainey from the LA Times on Artiegate

Thursday, June 10th, 2010

James Rainey has written a column in the Los Angeles Times on the Las Vegas Review Journal’s federal court fight against a Boston-based blogging cat and the humans who apparently lent the cat a computer. The copyright suit ensued after the blog reposted an LVRJ story about a fire at a bird sanctuary. (My original post on Artiegate is here.)

“The newspaper people had me pretty much in their corner until they went after the cat people,” Rainey writes.

For the column, Rainey spoke with the Review Journal’s in-house lawyer, and Rainey hints that the LVRJ’s lawyer, who apparently is not involved in the litigation, may have found the lawsuit against Artie’s humans a bit uncomfortable:

The paper’s in-house counsel, Hinueber, seemed to have a sense that his paper effectively had blasted a small tabby with a howitzer. He didn’t promise to drop the suit, but offered: “I just learned about the filing on the cat thing. I’m going to talk to [Righthaven] about that.”

Righthaven is the plaintiff in the lawsuit. Righthaven acquires copyrights to articles from the Review Journal before filing suit against the alleged infringers.

Unsealed Affidavit in iPhone/Blogger Raid

Monday, May 17th, 2010

Wired.com has the unsealed search warrant and search inventory from the raid on blogger Jason Chen’s home in the search for a wayward Apple iPhone prototype.

The search warrant claims the iPhone is a trade secret of Apple. As I have discussed previously (here and here), the iPhone is, in fact, not a trade secret.

No Trade Secret Liability for iPhone, Part 2 – Wrongful Appropriation

Monday, May 10th, 2010

I explained previously one reason why, in my opinion, there were no protectable trade secrets embodied in the Apple iPhone prototype which led to a police raid on a blogger’s home. That reason was, in short, that Apple did not use reasonable efforts to secure any alleged trade secrets.

Here let me explain a second and independent reason there should be no cause of action under trade secret law in this case: There was no wrongful appropriation.

In California, the Uniform Trade Secrets Act requires, for liability, that the alleged wrong-doer have engaged in “misappropriation” of the alleged trade secret. It is not illegal, without more, to take someone’s trade secret. The taking must be of a kind that counts as “misappropriation.” Under California Civil Code 3420.1::

   (b) "Misappropriation" means:
   (1) Acquisition of a trade secret of another by a person who knows
or has reason to know that the trade secret was acquired by improper
means; or
   (2) Disclosure or use of a trade secret of another without express
or implied consent by a person who:
   (A) Used improper means to acquire knowledge of the trade secret;
or
   (B) At the time of disclosure or use, knew or had reason to know
that his or her knowledge of the trade secret was:
   (i) Derived from or through a person who had utilized improper
means to acquire it;
   (ii) Acquired under circumstances giving rise to a duty to
maintain its secrecy or limit its use; or
   (iii) Derived from or through a person who owed a duty to the
person seeking relief to maintain its secrecy or limit its use; or

Here, based on the facts as we understand them, there was no misappropriation, since the phone was lost, not stolen, and after it was lost, the retention of it was neither illegal nor wrongful.

My previous posts explain both of these aspects, that retaining the iPhone was, under the circumstances, in compliance with the law and not wrongful.

Since it was okay for the person who found the phone to keep it, it was similarly okay for him to sell it, and for someone to buy it.

Trade secret law is a serious matter. Trade secret law allows injunctions, huge damage awards, and felony convictions. After being utterly careless with their phone and then totally nonresponsive to phone calls, Apple is attempting to bring down the very heavy hand of the law to claw back what it regretted letting go of. A system of law that allows Apple to do this creates a travesty of justice.

The iPhone Was Not Stolen, Not Wrongfully Retained

Tuesday, May 4th, 2010

In a previous post, I argued that it is unfair to blame the person who found Apple’s iPhone prototype for not returning the phone. The issue is an important one, because the adventures of the wayward phone led to a police raid on tech blogger Jason Chen’s home. The short version is this: the finder of the phone tried in earnest to return it, but Apple wouldn’t return his calls. Thus, the iPhone ended up in Chen’s hands.

That’s the fairness issue. Now on to the law.

The statute at issue is California Civil Code § 2080, et seq., which provides:

Any person or any public or private entity that finds and takes possession of any money, goods, things in action, or other personal property … shall, within a reasonable time, inform the owner, if known, and make restitution …

If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police …

So in California, if you find something valuable, you have to give it back to the owner, and if you can’t identify the owner, you have to give the thing to the police. So far so good. But this does not mean that the finder of the iPhone violated the law. The provisions of the California statute don’t apply under these facts because the finder did identify the owner, and did contact the owner. The owner then declined to respond. Apple’s refusal to take back the iPhone takes this out of the circumstances contemplated by the statute.

Reading the statue, it seems pretty clear that there is not intended to be a continuing legal obligation on the finder when the owner has rebuffed attempts to give the property back. In such a case, silence may be reasonably interpreted as abandonment of the property. This is not a matter of the property having been “not claimed” in the words of the statute. This is a matter of the property having been relinquished.

Much of the commentary coming out about the iPhone affair has been critical of Gizmodo and the finder with regard to the lost property aspect. These commentators have focused too much on the fact that this phone was some top-secret hyper-valuable prototype. That may be true, but it’s a fact known only now, a fact made evident because of what Apple eventually did to get the phone back.

But for the legal analysis, we need to look at the facts from the perspective of a reasonable person who does not know the end of the story. Back before the finder sold the phone to Gizmodo, the finder had no reason to believe the phone was anything other than a curious piece of junk. Apple clearly treated it like junk: (1) when they let it wander off at a bar, and (2) when they didn’t respond to efforts made to try to return it to them. It appeared, at best, to be some kind of rejected experiment without any continuing worth.

Now, you might say, surely the finder was on notice of how valuable it was when someone paid $5,000 for it. But if you say that, I say you don’t know Silicon Valley geeks.

The fact is, techies with money often spend it on tech junk. Tech weens will pay large amounts of money for vintage Betamax machines from the 1970s that don’t even work. Try buying a new inbox six-switch Atari 2600 on eBay for a reasonable price. Unless you think north of $2,000 is reasonable for one of the world’s most antiquated gaming systems, you’re out of luck. It is entirely reasonable to think that a prototype phone, worthless to Apple, would be highly prized as a curiosity by passionate geeks.

Don’t Give Apple a Pass on Not Answering the Phones

Monday, May 3rd, 2010

In the Gizmodo/iPhone affair, which involved a police raid on the home of a blogger who wrote a review of a prototype Apple iPhone found in a bar (some background and links to more background here), many bloggers and writers have opined that the iPhone was clearly stolen property and that Gizmodo’s receipt of it was illegal. I don’t think that is clear at all.

If someone loses something and you find it, should you give it back? Absolutely. What gets lost in the iPhone story, however, is that the finder, whose name we don’t seem to know, did try to return it. In addition to asking around the bar, the finder went much further. Here is what Gizmodo said about efforts to return the phone once the finder realized it must belong to Apple:

He reached for a phone and called a lot of Apple numbers and tried to find someone who was at least willing to transfer his call to the right person, but no luck. No one took him seriously and all he got for his troubles was a ticket number.

He thought that eventually the ticket would move up high enough and that he would receive a call back, but his phone never rang.

What more was the finder supposed to do? It is absurd to blame the finder for not returning the phone to Apple. The finder tried. It is not the finder’s fault that Apple is so bloated with bureaucracy that they won’t return important phone calls. Don’t give Apple a pass here.

Big corporations make a well-thought-out judgment about how easy or difficult they will make it for regular citizens to get in touch with them. Many huge enterprises seek to benefit their bottom line by dodging phone calls from the public. They staff the phone lines sparsely, and they require members of the public to go through onerous automated response systems. Those who do answer the phones are people with little training and virtually no discretion or power. Then the same companies avoid revealing inside phone numbers for executives.

The fact is, being ready and willing to talk to disgruntled customers and irate citizens is expensive. Thus, ignoring attempts of the public to communicate with a big company is profitable and convenient.

As a consumer, I find it inconvenient and unprofitable to read the fine print that comes with credit card bills and to go through the lengthy terms of use (that are constantly changing) for software installs and updates – including Apple’s. I doubt Apple or the banks would give me a pass in this regard. Can you imagine them saying, “I understand you’re busy. We can’t expect you to be bound by those terms.”? No, of course not. By the same token, no one should give Apple a pass on answering phone calls from the public.

No Trade Secret in the iPhone, Part 1 – Reasonable Efforts

Saturday, May 1st, 2010

There has been a fair amount written about the search-and-seizure and receiving-stolen-goods aspects of the iPhone police raid (background here), but much less about the trade secrets aspect. At the root of Apple’s complaint is (undoubtedly) a claim that the iPhone contained trade secrets.

The Explainer column at Slate, written this time by Brian Palmer, says that Jason Chen and Gizmodo could be in trouble for violation of the California trade-secret law. I’ve got to say, I find this conclusion extremely dubious. To the extent it turned out to be true that Chen or Gizmodo were held liable under a trade-secret theory, then, in my opinion, the outcome would have more to do with stellar lawyering and a court’s admiration for Apple rather than fealty to the law.

In California, the law governing trade secrets is California’s version of the Uniform Trade Secrets Act. For a piece of information to qualify as a trade secret, that piece of information must be:

the subject of efforts that are reasonable under the circumstances to maintain its secrecy

Allowing an employee to carry a slim phone-sized device in a pocket out to a bar does not qualify as reasonable measures. Palmer’s Slate piece acknowledges the problem for Apple along these lines. But Palmer ventures that taking the phone to a bar is not dispositive. He writes:

[T]he fact that Apple disguised the experimental device to make it look like an ordinary iPhone 3GS would likely be enough to convince a judge that the company intended to keep their new toy hush-hush.

If a judge were convinced in this way, I think it would be a travesty. First of all, “intent” to keep something secret is an entirely separate question from reasonable measures. The key question is not what you intended to do, but what you did do, and whether that was reasonable.

So, was what Apple did “reasonable under the circumstances” to protect alleged trade secrets in a phone? The answer is clear: Of course not.

The reality is that phones get lost. Everybody knows this. Phones especially get lost at bars. Mobile phones, at the whiff of beer breath and chicken wings, will leap out of the pockets of your Dockers faster than you can say, “What do you have on tap?” A finding that what Apple did here counts as reasonable measures, would, in my mind, be absurd.

There are other reasons that the iPhone did not embody trade secrets. I’ll cover those in future posts.

One other note: I don’t mean to beat up on Brian Palmer. He does a great job with the Explainer. (He consulted me last month on a piece about The Hurt Locker.) And with regard to the iPhone, I think he did a fine job of teeing up the issues. He also consulted two bona fide experts for the piece – Eric Claeys at George Mason and Elizabeth A. Rowe at Florida-Levin. And the fact is, courts often take a very expansive view of trade secrets. But if Palmer’s piece ends up being on target about the existence of trade secrets here, then, in my mind, that will be more on account of subpar jurisprudence than a correct interpretation of the law.

Bloggers Provide Early Legal Analysis of Jason Chen / iPhone Search

Friday, April 30th, 2010

Some excellent legal commentary on the iPhone/Chen matter:

Orin Kerr on Volokh Conspiracy
Paul Ohm on Freedom to Tinker
Matt Zimmerman on EFF’s Deeplinks Blog

Police Raid of Blogger’s Home Creates Shield Law Question

Wednesday, April 28th, 2010

Silicon Valley’s multi-jurisdictional task force R.E.A.C.T. (“Rapid Enforcement Allied Computer Team”) sounds like something I would make up for a law-school exam hypothetical. But it is not, and on Friday night, Gizmodo blog editor Jason Chen came home to find R.E.A.C.T. seizing computers and servers pursuant to a search warrant issued in regard to a prototype Apple 4G iPhone, which Apple lost and Gizmodo “found,” and then dissected and reviewed. (Gizmodo’s wrap-up.)

COO of Gizmodo owner Gawker Media, Gaby Darbyshire, says the search was illegal under California Penal Code § 1524(g), a journalist shield law. (Gizmodo’s post, with search warrant document images.)

Lyrissa Lidsky on PrawfsBlawg discusses the question of whether bloggers are properly entitled receive protection under the federal Privacy Protection Act of 1980, 42 U.S.C §2000aa et. seq., intended to squelch newsroom search and seizure.

More: Alexandra Jaffe on editoersweblog.org; Nick Bilton on NYT’s Bits blog.