That set of facts doesn't look good for Brian J. Hogan.
Once he suspected what it was he made no effort to return the device, but made a good deal of effort to sell it to a tech blog. Err... excuse me, his lawyer wants people to say share it with a tech blog.
Sure, but it's hard for a novice to recognise if this is an HTC model they don't recognise or a prototype.
Since Apple only has 3 models identifying an Apple phone which is not one of those models is much easier and strongly suggests it's a prototype particularly since Apple is based near the bar in question.
HTC isn't they are based in Taiwan (which most people on the street probably wouldn't know).
After I became aware that it was a highly secret prototype or before?
Before I would leave word at the bar, on the theory you would backtrack.
After I became aware it was a highly sought after prototype I'd extend that to the local police and I'd try to contact HTC but probably fail because they don't want Joe Consumer calling them.
Brian Hogan is in serious trouble, but it's trouble he put himself into. He damn well could have walked into an Apple store, or even Apple HQ (he lives in the area), and dropped the phone off there, rather than looking for some skeezy way to milk essentially stolen goods. So if he really did the things that are written about him, he belongs in jail. Remember that ignorance of the law is no excuse in legal contexts.
You seriously, truly believe a person belongs in prison for selling something he found? I don't understand the blood lust some people around here have for this guy or gizmodo. Say what you will about ethics, this is certainly no reason to put a person in prison. What a bizarre perspective you have.
How would you feel if I found keys to a your home and sold them to a local gossip blog to come take pictures? Maybe not the best example, but it conveys the idea...
Personally, I don't think you should go to prison.
If, say, this guy had conspired to break into Apple and steal this thing or stalked the engineer and thieved it outright, then there is a difference. I don't know and don't care if there isn't one by law, it's just not the same.
I think this guy made a bone head decision. I think Gawker did too. I also think mistakes happen and that punishment should fit the crime. What do we know about this crime and the damage it did? It's hard to gauge, but I don't think it's so criminal that people belong in prison for it. This wasn't the nuclear launch codes.
My thoughts exactly. Give the $5000 back to Apple, do a little community service, learn a valuable life lesson on not being a dick in local bars. Everybody wins.
No. His theft resulted in Apple's loss of millions of dollars in trade secrets and marketing. $5000 is not even a drop in this bucket - it's really beside the point completely (it is merely strong evidence of his guilt).
He belongs in prison if he is found guilty on the broader principle of justice. I am referring to the principle that says that a man that robs you as a private citizen should get at least as severe a penalty as someone that robs a large group of people (in this case, Apple's employees and shareholders). This is required if we are to maintain our rule of law and the benefits that it entails.
If he had robbed me personally in a non-violent manner, he quite likely would receive a punishment much like I described. Maybe even less.
His theft resulted in Apple's loss of millions of dollars in trade secrets and marketing. That's one claim that would require a mountain of proof. Until then, prototype or not, its a $400 phone.
When Apple almost went bankrupt in 1997, they were one really leaky ship. Everyone knew what they were working on, so when Macworld time came around, there were no real surprises. Steve Jobs realized that they were losing millions in publicity by screwing this up, and he stopped the leaks and saved Apple. Obviously he did a lot of other things that had a lot to do with their success, but stopping the leaks did have a very measurable impact on them.
Edit: I forgot to mention this earlier, but the Osborne effect is probably the larger factor to consider here. Lots of people will be waiting to get new iPhones now (myself included).
$400? What are you talking about? Apple's margins on the iPhone are reportedly between 20-50%; by your logic, since Apple itself lost the phone, this guy should only be on the hook for ~$300 or so!
Of course, using reality-based logic, the story is a little different. The reality is that if this incident caused Apple to reschedule the iPhone unveiling by one day, or pushed the release date of the phone back by a week, or took an engineering team offline for a couple days, or forced Apple to spend 80 billable hours with outside counsel, or... look, there's probably not a single action Apple could have taken in response to this that doesn't immediately incur 5-6 figure damages.
Could this guy have possibly realized that? Not Apple's problem. Not the world's greatest caper, this one.
Yeah, and here's the nightmare scenario for Apple: what if the prototype is actually for iPhone 2011 instead of iPhone 2010? Everyone expects a front-facing camera in the next release now. Wanna take bets on what happens to Apple's share price when they formally announce the fourth-gen hardware and it doesn't have one?
If, walking down the street, I found the keys to a Porsche 911, picked them up, and sold them to someone I knew would later steal the car, all I'd be is a car thief. It takes creative stupidity to do the amount of damage these guys did with their crime.
...he believed the payment was for allowing the site exclusive access to review the phone.
The attorney keeps stressing this like it's the cornerstone of their defense. Are they trying to say that he was paid for access to review, not in exchange for the (stolen) iPhone itself?
A sticky point is the value of the phone. If he sold it for $5000, then he stole $5000. If he didn't sell it, but was paid $5000 by Gizmodo to not tell anyone else about it, then the value of the phone is in question. If the value of the phone is less than $400 (and if you add up the cost of each component, and take into account that it was remotely bricked, that is easy to argue), then there is no particularly severe crime involved. A slap on the wrist, at worst. If it's $5000, though, then jail time could become involved.
This defense is also good for Gizmodo. It's not illegal to pay someone $5000 to not talk about something to the media. It's the basis for pretty much every employment contract in existence.
Like most high-profile cases, this is not particularly clear-cut. He didn't walk into Apple headquarters, gun down a few guards under the watchful eye of a security camera, take the iPhone, and sell it to the highest bidder. That would be clear-cut "grand theft" (not to mention, murder). Instead, he found it lying around in a bar, asked everyone in the bar if it was theirs, was told no, the excitement and curiosity went to his head, and he ended up with $5000 for letting Gizmodo take some pictures of the thing. A crime? Maybe. But not obviously.
(There is a lot of hate for this guy, but think about it. If you found a cool electronic gadget laying around in a bar, wouldn't you play with it? And when you found out it was a fucking top-secret prototype of one of the most secretive companies in existence, wouldn't you be a little excited? And when you're excited, do you always make the best decisions? If not, you don't belong on HN.
Sure, the guy is a sleaze-bag for pocketing the five grand. But Apple is a sleaze-bag for paying slave children build the phones in the first place. Two wrongs don't make a right, of course, but it is helpful to treat both parties with the same scrutiny; at least when we are using words like "sleaze-bag".)
Of course without being in the situation it's difficult to say how one would react, but I believe (or hope to believe) that most reasonable people would never try to make $$ off of such circumstances.
He made no serious attempt to return the phone - he couldn't even contact Apple Care himself? Heck, it's not hard to snap off an email to sjobs@apple.com.
Simply not true. If I find your car and sell it to a chop shop for $300, then what was your car worth? If I paid you back the $300, would we be even?
You wouldn't want $300 back, you'd want to be "made whole." There simply is no way that Apple can be made whole in this situation. The genie is out of the bottle.
Re: the criminal angle, there was no crime in finding the phone, and possibly none in taking it home. It seems possible that there was a crime in converting it to his own benefit instead of turning it into to Apple or the police. So far the DA seems to agree.
If you find something that doesn't belong to, you need to return it to the owner. If you can't find the owner, you must return it to the police. That didn't happen in this case. Therefore, theft.
This is ridiculous (and I think you agree, right?) I doubt that many jurors will find this convicing. People that possess stolen property have no right to sell access to the stolen good.
When you use the word "steal", sure, you're right. But he didn't "steal" anything, he misappropriated property that was reasonably expected to not be abandoned.
Things for the jury to consider include: whether it was reasonable to assume that the device was lost and not abandoned, whether he had any malicious intent (his state of mind), and so on. As I mention above, it's not clear-cut at all.
From the beginning, I thought Brian's and Gizmodo's best defense would be to say "We collaborated to try to find the owner through a large platform." How well that will work with "$5k for exclusive access" is questionable.
46 comments
[ 5.0 ms ] story [ 115 ms ] threadOnce he suspected what it was he made no effort to return the device, but made a good deal of effort to sell it to a tech blog. Err... excuse me, his lawyer wants people to say share it with a tech blog.
HTC have a lot of phone models, Apple has exactly 3 which most tech savvy folks could identify readily.
Since Apple only has 3 models identifying an Apple phone which is not one of those models is much easier and strongly suggests it's a prototype particularly since Apple is based near the bar in question.
HTC isn't they are based in Taiwan (which most people on the street probably wouldn't know).
Before I would leave word at the bar, on the theory you would backtrack.
After I became aware it was a highly sought after prototype I'd extend that to the local police and I'd try to contact HTC but probably fail because they don't want Joe Consumer calling them.
I'll tell you: I would feel nothing, because I would never ever find out.
If, say, this guy had conspired to break into Apple and steal this thing or stalked the engineer and thieved it outright, then there is a difference. I don't know and don't care if there isn't one by law, it's just not the same.
I think this guy made a bone head decision. I think Gawker did too. I also think mistakes happen and that punishment should fit the crime. What do we know about this crime and the damage it did? It's hard to gauge, but I don't think it's so criminal that people belong in prison for it. This wasn't the nuclear launch codes.
He belongs in prison if he is found guilty on the broader principle of justice. I am referring to the principle that says that a man that robs you as a private citizen should get at least as severe a penalty as someone that robs a large group of people (in this case, Apple's employees and shareholders). This is required if we are to maintain our rule of law and the benefits that it entails.
His theft resulted in Apple's loss of millions of dollars in trade secrets and marketing. That's one claim that would require a mountain of proof. Until then, prototype or not, its a $400 phone.
When Apple almost went bankrupt in 1997, they were one really leaky ship. Everyone knew what they were working on, so when Macworld time came around, there were no real surprises. Steve Jobs realized that they were losing millions in publicity by screwing this up, and he stopped the leaks and saved Apple. Obviously he did a lot of other things that had a lot to do with their success, but stopping the leaks did have a very measurable impact on them.
Edit: I forgot to mention this earlier, but the Osborne effect is probably the larger factor to consider here. Lots of people will be waiting to get new iPhones now (myself included).
Of course, using reality-based logic, the story is a little different. The reality is that if this incident caused Apple to reschedule the iPhone unveiling by one day, or pushed the release date of the phone back by a week, or took an engineering team offline for a couple days, or forced Apple to spend 80 billable hours with outside counsel, or... look, there's probably not a single action Apple could have taken in response to this that doesn't immediately incur 5-6 figure damages.
Could this guy have possibly realized that? Not Apple's problem. Not the world's greatest caper, this one.
Nobody I've talked to seems to think that this scenario is okay or would consider the laptop "lost".
The attorney keeps stressing this like it's the cornerstone of their defense. Are they trying to say that he was paid for access to review, not in exchange for the (stolen) iPhone itself?
This defense is also good for Gizmodo. It's not illegal to pay someone $5000 to not talk about something to the media. It's the basis for pretty much every employment contract in existence.
Like most high-profile cases, this is not particularly clear-cut. He didn't walk into Apple headquarters, gun down a few guards under the watchful eye of a security camera, take the iPhone, and sell it to the highest bidder. That would be clear-cut "grand theft" (not to mention, murder). Instead, he found it lying around in a bar, asked everyone in the bar if it was theirs, was told no, the excitement and curiosity went to his head, and he ended up with $5000 for letting Gizmodo take some pictures of the thing. A crime? Maybe. But not obviously.
(There is a lot of hate for this guy, but think about it. If you found a cool electronic gadget laying around in a bar, wouldn't you play with it? And when you found out it was a fucking top-secret prototype of one of the most secretive companies in existence, wouldn't you be a little excited? And when you're excited, do you always make the best decisions? If not, you don't belong on HN.
Sure, the guy is a sleaze-bag for pocketing the five grand. But Apple is a sleaze-bag for paying slave children build the phones in the first place. Two wrongs don't make a right, of course, but it is helpful to treat both parties with the same scrutiny; at least when we are using words like "sleaze-bag".)
Your posts would be a lot more convincing without the unsubstantiated defamation thrown in.
He made no serious attempt to return the phone - he couldn't even contact Apple Care himself? Heck, it's not hard to snap off an email to sjobs@apple.com.
Mandatory Futurama Quotes:
Fry: You know what the worst thing about being a slave is? They make you work all day but they don't pay you or let you go.
Leela: That's the only thing about being a slave.
Oh HN, why...
Simply not true. If I find your car and sell it to a chop shop for $300, then what was your car worth? If I paid you back the $300, would we be even?
You wouldn't want $300 back, you'd want to be "made whole." There simply is no way that Apple can be made whole in this situation. The genie is out of the bottle.
Re: the criminal angle, there was no crime in finding the phone, and possibly none in taking it home. It seems possible that there was a crime in converting it to his own benefit instead of turning it into to Apple or the police. So far the DA seems to agree.
Things for the jury to consider include: whether it was reasonable to assume that the device was lost and not abandoned, whether he had any malicious intent (his state of mind), and so on. As I mention above, it's not clear-cut at all.
1. Brian asks the techy guys at Gizmodo for their help in identifying and returning a strange phone to its rightful owner
2. Gizmodo hires Brian as a consultant on the project for $5000, pictures and notes are taken while identifying its owner and origin
3. Phone is shipped back to engineer/Apple within 24 hours
4. Gizmodo publishes a blog entry detailing the successful investigation and return of the phone
:)