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.
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
I wonder that myself. It has something to do with a feeling that people aren't understanding Apple in tech circles, and that we have a lot to learn from them as a company. In this case, I think people are underestimating the damage to Apple from this leak. It's not a coincidence that Steve was CEO of Pixar: Apple doesn't just sell gadgets, but the entire narrative - about the company, about Steve, and about their devices. It's inherent in their secrecy, in their packaging, in their stores, in their presentation, and in the unveiling. Preserving this "Willy Wonka" narrative is why they go to such lengths to avoid leaks, not because of some manic control issues.
Also, I hate to find myself disagreeing with the "stream of thought" around here: for example, I think 3.3.1 is good for startups because it's unenforceable (hence, hackers and founders get to ignore it and get a competitive advantage against risk-averse competitors). Another example: I think one can easily paint Android as evil (Google is clearly developing it at a loss to commoditize complementary markets). It's the equivalent of Microsoft funding extensive open hardware design at a loss. As a heuristic, open is good, but reality isn't that simple: had Microsoft done that, IBM and Intel would never had a reason to invest the billions into chip development they did.
I love Google and think they do many great things for the world, but I easily see a different perspective in the case of Android. I can see how what Apple is doing could be about Steve's ego issues, but also about making the best devices possible.
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!
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.
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!"
9 comments
[ 3.4 ms ] story [ 33.9 ms ] threadThe 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.
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
Also, I hate to find myself disagreeing with the "stream of thought" around here: for example, I think 3.3.1 is good for startups because it's unenforceable (hence, hackers and founders get to ignore it and get a competitive advantage against risk-averse competitors). Another example: I think one can easily paint Android as evil (Google is clearly developing it at a loss to commoditize complementary markets). It's the equivalent of Microsoft funding extensive open hardware design at a loss. As a heuristic, open is good, but reality isn't that simple: had Microsoft done that, IBM and Intel would never had a reason to invest the billions into chip development they did.
I love Google and think they do many great things for the world, but I easily see a different perspective in the case of Android. I can see how what Apple is doing could be about Steve's ego issues, but also about making the best devices possible.
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!
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!"