Another Case Against Gizmodo

http://andreyf.tumblr.com/post/541010597/another-case-against-gizmodo

by andreyf • 16 years ago

10 9 16 years ago

andreyf.tumblr.com

pedalpete• 16 years ago

I'd have to disagree with most of what you are saying Andrey.

The product was not stolen from Apple, it was left in the public domain (if it wasn't leaked).

The IP was therefore available for them to photograph and publicize.

Gizmodo didn't sell it or benefit from it's sale. They benefited from reporting on a lost or stolen object. I doubt there is much legal recourse for Apple there.

If Gizmodo did in fact pay for the iPhone, then Apple may have a case. But I think it would have to depend on what they actually paid for.

They didn't hand over $10k without a legal contract, and that contract is likely for the story, not for the physical product, as that could be construed as possibly purchasing stolen goods, as Gizmodo really had no idea how the person who found the phone actually got it.

andreyf2• 16 years ago

You're mixing up copyright and property law [1]. If you record Lady Gaga humming an unreleased song in public, she still retains her copyright to the tune, and can pursue you for damages, especially if you sell that recording for $5000 to someone who makes a lot of money off of it.

They benefited from reporting on a lost or stolen object.

Precisely! That reporting just happens to include distributing a derivative work of Apple's copyrighted material (the design of the phone). And because of the distribution, Apple has incurred quantifiable damages. IANAL, but that's one of the keys of a successful copyright violation suit: proving damages. Such "reporting" is covered under "free speech" as much as distributing an unreleased movie would be (i.e. not much).

1. I edited the article to say "copyright" instead of "IP" explicitly

shekmalhen• 16 years ago

I'm curious, why does it matters so much to you, as you received no "damage" in this story?

sunchild2• 16 years ago

I think it's great that you're interested in the law, but I think you're missing some basic copyright concepts here. These things don't lend themselves to brief discussion, naturally, but I'll try anyway:

1. What you're looking to enforce is an IP right in industrial design.

2. There is such a thing as a design patent. They last a little over a decade, and cover "ornamental" aspects of a thing, as opposed to utilitarian aspects of it. It's doubtful Apple filed for, or would be entitled to, a design patent in this case. More importantly, publishing images of an object that is protected by a design patent probably isn't an infringement of the patent.

3. In the US, copyright can also protect an industrial design. In this case, even if you assume Apple has a valid copyright on the design of the new phone, it's hard to call the publication of images infringement for at least one reason: there is arguable news value in publishing the image, which falls under the good old "fair use" exception.

4. There is also "trade dress" protection for industrial design, but publishing a representation of an object's design is very different from creating and selling a counterfeit version of the object. Trademark/trade dress protects against someone using the design to confuse consumers about its origin in order to profit. If Gawker Media released a phone that looked just like the new iPhone, it would likely run afoul of this protection...but that isn't the case here.

5. Misappropriation of trade secrets. Now we're talking. Not, strictly speaking, an IP right, but nevertheless there is generally protection for anything that gives a business an advantage over competitors when kept secret (with a big exception for monopolists/cartels, right?) Questions that would need to be answered include: (a) Did Apple undertake "reasonable efforts" to keep the secret? and (b) Should Gawker Media have known that the phone in question was meant to be a secret and had value as a secret and would harm Apple if revealed?

Note: The answers may not be as clear cut as they seem. My analysis is really back-of-the-envelope here. IAAL, but this ain't legal advice so don't hold me to it or get confused about whether I represent you – I don't!

sunchild2• 16 years ago

No, this won't fly. Maybe a lawsuit based on trade secret misappropriation, but not infringement of copyright.

cmatthias• 16 years ago

I'm reasonably certain that you cannot copyright the design of a physical product. Apple might be able to patent the design of a phone, especially if its design is novel in some way, but copyright is reserved for "intellectual works" like writing, artwork, computer software, etc.

dhimes2• 16 years ago

because it was a secret prototype, Gizmodo’s unlicensed reproduction is different: it has clear and quantifiable damages to Apple’s business

We haven't seen clear and quantifiable damages yet. If the new Android phone were to show up looking exactly like it (not talking about the port http://news.ycombinator.com/item?id=1283780) and subsequently Apple's sales fell substantially below expectations, then maybe.

I doubt they'll be hurt at all by this, actually. I'm already hearing "oh, sick, I can't wait to get it!"

dhimes2• 16 years ago

Somehow the parent post to which I replied looks strangely different now... ;)

Another Case Against Gizmodo

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