By now everyone knows the story: Last week a person who was supposedly Apple engineer Gray Powell supposedly lost what was supposedly an iPhone 4G prototype, in a bar in Redwood City, California (a mere stone’s throw from Apple’s Cupertino headquarters). Then a third-party supposedly found the alleged iPhone 4G test model, and then somehow it got to Gizmodo, where they tested it, disassembled it, pronounced it the real deal, and blogged about it, complete with pictures. Now Apple has sent a demand letter, demanding the unit back. This proves that the story, and the phone, are real. Or does it?
Upon reading Gizmodo’s article, I myself commented to the story, saying that “Speaking as an attorney, if this really *is* an Apple product (read as “Apple property”), and if Gizmodo did indeed publicly out this – not to mention disassembling it – then unless Apple either explicitly, or at least implicitly, agreed to this expose, Gizmodo could be found guilty of the crime of conversion, and I would expect to see Apple getting a TRO (temporary restraining order) to have Gizmodo remove this post. Having practiced in Apple’s own back yard, I have no doubt that had Apple sought a TRO, they would *already have it*. This leads me to believe that either a) this isn’t really a piece of Apple property, or b) Apple leaked it to Gizmodo or, at least, is cool with them having it, or c) it really is a lost Apple product, Gizmodo really did come by it without Apple’s involvement, and Apple doesn’t care.
c) is clearly the *least* likely – my money is on ‘b’.
Interestingly, after I wrote that comment (but certainly unrelatedly, if not uncoincidentally), yesterday Gizmodo received and posted a demand letter that they received from Apple. The letter (see below) says:
It has come to our attention that GIZMODO is currently in possession of a device that belongs to Apple. This letter constitutes a formal request that you return the device to Apple. Please let me know where to pick up the unit.
Now, I’m a lawyer. And reading this ‘demand’ as a lawyer, here’s what jumps out at me: this is about as milquetoast a “demand” as I’ve ever seen. If Gizmodo really came into possession of the iPhone without Apple’s knowledge or consent, they are open to legal charges – criminal, even – why didn’t Apple raise that at all in their ‘demand’? Apple is known to go after bloggers with hell’s white fury – where is the fury here, where a blogger not only has outed a product, but has it in their possession? “It has come to our attention that GIZMODO is currently in possession of a device that belongs to Apple” is a far cry from “We just learned that you have missing property of ours and you’d better return it – and take down your expose in which you are exposing trade secrets – or we’ll see you in court.”
Gizmodo’s Brian Lam responded to Apple, saying, among other things, that they “didn’t know this was stolen… when we bought it.”
This is also an interesting point. Reports of the amount they paid range upwards of $5,000. That’s an interesting plot-thickening.
So as far as we are concerned, this still doesn’t necessarily look like Apple having really lost track of their prototype iPhone 4G, or them being really upset by it having been outed. Either Apple has gotten decidedly mellow in their dotage (just ask Adobe), or for some other reason they are not that upset over the whole affair – and haven’t C&Ded (cease and desisted) Gizmodo over the article and pictures which fully expose the iPhone 4G as a genuine prototype.
So…genuinely lost phone, unorchestrated? Or elaborate marketing ploy by Apple? Or something else.
On a side-note, Lam’s reply to Apple closed with this post script, referring to Gray Powell: “P.S. I hope you take it easy on the kid who lost it. I don’t think he loves anything more than Apple.”
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