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New Reports on Jason Chen/Gizmodo/iPhone Investigation

David O'Brien — Fri, 14 May 2010 19:59:02 +0000

Reports are floating around today on Mercury News.com, CNET, and other sites that Judge Cretan, from the San Mateo County Superior court, has unsealed affidavits related to the issuance of the search warrant executed on Gizmodo Journalist, Jason Chen, in late April. According to CNET’s read on the affidavits, Apple CEO, Steve Jobs, was (apparently) personally involved in efforts to the return of the (alleged) iPhone 4G. Other interesting tidbits were also revealed through the newly released documents (check out the above-linked articles).

Questions still remain about the validity of the search warrant execution on Chen’s personal residence. As of this post, no charges have been filed against Chen in relation to the investigation.

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Search Warrant on Gizmodo/Jason Chen Valid?

David O'Brien — Tue, 27 Apr 2010 22:42:06 +0000

This has been a hell of a week for the iPhone “4G”. Unless you’re still living in a cave, not following our blog, or (when it posts later tonight) our podcast, you’ve probably heard that Jason Chen, one of Gizmodo’s editors, had some computers seized after his personal residence was searched by California authorities yesterday. Some interesting questions remain about the validity of the search warrant which was used. Sam Bayard, a CMLP colleague of mine and fellow at Berkman, wrote an excellent post that covers some of the questionable aspects of the warrant. Check it out.

Sam also helpfully included some of the California penal code statutes which relate to finders of lost property and criminal liability for receipt of stolen property. In particular, his post points to the following language in the penal code:

§ 485:

[o]ne who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

and, § 496(a):

Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year.

During our podcast, which we recorded on Sunday, we didn’t fully analyze the criminal aspects of Gizmodo’s purchase of the phone in light of the California penal code–mostly because none of us are California attorneys. In any event, after reading Sam’s post, it’s clear that are some real questions concerning Gizmodo’s actions. Although I have not analyzed any case law on the issue, Gizmodo’s culpability might depend on whether the original finder of the iPhone took “reasonable and just efforts” to return the phone to the true owner and what Gizmodo knew prior to the purchase.

Another point which is not clear to me is if dismantling the iPhone, by either the finder or the Gizmodo staff, might rise to a level of theft by “appropriation” as contemplated by the statute. E.g., if you’re taking apart an item, that clearly does not belong you, in a way that might cause damage to the item, it’s somewhat analogous to saying “It’s mine! I can do what I want with it!” Even if that argument doesn’t hold, it still might constitute trespass or conversion to chattel in a civil court, should Apple choose to pursue a lawsuit. It’s an issue that I have not seen addressed by commentators in the blogosphere, and one that may be debunked in case law. However, until I see a definitive opinion, I still consider it an open issue. But, as Sam points out, Gizmodo (and Jason Chen) can argue something akin to plausible deniability– they didn’t know the iPhone was actually the property of Apple until they sent notice claiming the device. Perhaps this mitigates the culpability some.

As of this post, no criminal charges have been filed against Gizmodo, Jason Chen, or the finder. That decision rests with the California authorities, who might not pursue the charges after the investigation.

We’re definitely keeping our eyes on this one!

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Summary Judgment Filings in Viacom v. YouTube/Google Case Unsealed

David O'Brien — Thu, 18 Mar 2010 20:00:29 +0000

As of today, summary judgment filings in the Viacom v. YouTube/Google case have been made public. Both Google and Viacom have cross filed for summary judgment–meaning both the defendant and the plaintiff believe the law should be interpreted in their favor.

These motions have been highly anticipated since the litigation began nearly three years ago. Google disputed the time frame of making these documents public, claiming it would have been a logistical nightmare in terms of making the necessary redactions for confidential information and trade secret information. Judge Stanton disagreed with Google, and ordered the filings to be made public this week.

TechCrunch has the filings on their site. After I get a chance to comb through them, more thoughts on the arguments of each side will be posted. Stay tuned.

Thanks to Ben Sheffner and TechCrunch for helpful posts.

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Terry Childs’ Trial Begins Today

Ben Snitkoff — Tue, 15 Dec 2009 14:00:33 +0000

The San Francisco Sys Admin who’s been in jail for 18 months on $5 million bail is set to begin his trial today. The only charge that remains against Childs stems from his refusal to release the password to the network. He did, eventually, turn the password over the mayor of San Francisco. The trial is expected to last several months (it’s unlikely that they will take testimony more than a day or two a week). We last covered the case in September, in Episode 15.

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Episode 29: The Supreme Court Justice Is Playing Beer Pong

Ben Snitkoff — Tue, 15 Dec 2009 03:00:37 +0000

TechCrunch v. Fusion Garage, Judge gets Last Word in Tenenbaum Trial, and Facebook changes is privacy policy.

Please download the podcast, and e-mail us your questions and comments.

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Charges Dropped Against Party Filmer

Ben Snitkoff — Mon, 14 Dec 2009 13:59:41 +0000

We mentioned earlier that an Illinois woman was detained and arrested for recording a birthday party in a movie theater. Since we posted that the charges have been dropped, and the woman is now considering suing the theater. As we mentioned the statute makes it virtually impossible to recover against the theater, but if nothing else this has raised the profile of the law, and may get it modified or taken off the books.

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Technically Legal Podcast: Episode 20

Ben Snitkoff — Tue, 13 Oct 2009 10:22:39 +0000

FTC’s new guidelines for bloggers, A Smoking Gun in the YouTube case, and Apple v. Psystar, again.

Please download the podcast. You can e-mail us with comments, and suggestions.

New FTC Guidelines for Bloggers

FTC: Bloggers must disclose payments for reviews
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FTC: Bloggers, Research Studies Must Cite Ties To Advertisers
FTC Publishes Final Guides Governing Endorsements, Testimonials
The Guidelines

Smoking Gun in YouTube Case

YouTube Smoking Guns? What Constitutes Actual Knowledge?

Apple v. Psystar

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Apple’s Reply in Support of its Motion to Dismiss or Enjoin, as text, and a Leopard/Snow Leopard EULA Chart – Updated

Yes, I know I misquoted Star Wars. I said “galaxies” when, clearly, I meant “star systems.” Please direct all criticism on that point directly to ben@technicallylegal.org.

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Open House at Harvard Law’s Berkman Center for Internet & Society

David O'Brien — Tue, 08 Sep 2009 22:06:32 +0000

The Berkman Center is hosting an open house, tonight 7pm in Cambridge, MA. Details here. I will be attending, if you are in the area be sure to stop by! Hope to see you there. Related posts:Is the DMCA Takedown Unconstitutional? Wendy Selzter of the Berkman Center for Internet and Society... Related posts:

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Microsoft Banned From Selling Word

Ben Snitkoff — Wed, 12 Aug 2009 12:55:43 +0000

A Federal Judge has ordered that Microsoft stop selling any version of Word that can open .xml, .docx, or .docm files.

A Canadian Company owns the patent Microsoft infringed. The patent, filed in 1994, and issued in 1998, covers a system and method for editing the content of a document, and the form of the document separately. (It essentially embodies the form vs. content idea behind XML).

In addition to being banned from selling any Word product that can read and edit XML files, Microsoft was ordered to pay $200 in damages (including extra damages for willful infringement) and interest.

We’re going to get our hands on the judge’s order and figure out what all was going on here. But one thing is for sure, we can expect Microsoft to appeal.

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