I’ve just finished this book (excellent reading, by the way). It encourages you to critically read and comment cases. In order to test the knowledge I acquired in the read (or the lack of it, thereof), I want to evaluate the following case presented as an exercise:
Read the following text, put it into context and raise the legal issues you may find relevant.
On his birthday, Mr. Engineer, employee at a high-tech firm named Pear, goes to a biergarten and leaves behind a prototype cell phone he was working with.
Mr. Finder, also client at the bar, finds the prototype and allegedly tries to contact the firm with the purpose of returning it. Pear employees are not aware of the prototype missing and do not give Mr. Finder proper guidance to return the valuable.
Mr. Finder then contacts Mr. Journalist, editor at an online publication dedicated to gadgetry news. Mr. Finder gives the found prototype to Mr. Journalist in exchange of 5.000USD.
Mr. Journalist publishes details of the device and the name of Mr. Engineer on his online publication.
Days later a search warrant is served at Mr. Journalist’s house when he is not at home and all computers and storage media found are seized.”
From a first read, these elements seem relevant to the case:
- Mr. Finder gives the prototype to Mr. Journalist in exchange of a price.
- Mr. Finder transacted knowing the prototype was not of his property.
- Mr. Journalist was aware of some key facts about the prototype: it is not public and it was property of Pear.
- It is unknown to us who pays the item and the terms of the transaction.
- The prototype is studied and some features are released to public domain through the online publication.
- There is profit generated in the transaction: direct profit goes to Mr. Finder that receives 5.000USD, indirect profit goes to the online publication in the form of readers (that mean advertising earnings).
- Pear has lost the freedom to release the information regarding the device at their own pace.
- It is difficult to determine how Pear may have been damaged (and for how much). It may benefit from the exposure and product expectation.
For me, the acts that may be prosecuted are:
- Buying/selling a lost item and
- Releasing industrial secrets to the public.
As for the first act, in my humble opinion the transaction may not be considered a typical sell/buy act because:
- Both parties knew the item was not of their property,
- I don’t think it was the “buyer” intention to keep the item to himself and
- the transaction was compatible with the later return of the prototype to the lawful owner.
As you may have noticed already, I am a complete law ignorant. But there may be some precedent about this kind of transaction in Common Law. In fact the transaction may be understood as a transfer of the duties as a depositor of the item. There may even exist a contract signed in these terms between Mr. Finder and Mr. Journalist (or the online publication or the publishing group it belongs to).
As for the second act, if the elements that were released to the public are not subject to industrial secret (secret procedures, mechanisms, components, etc) this second element may be difficult to prosecute.
For those who aren’t aware yet, the case is real.
See here for some background and related comments.
The search warrant
To complicate things a little more, a search warrant was issued and served to seize computers and storage devices at Mr. Journalist house. The search warrant was very broad and it was issued against someone that may be considered a journalist.
In my experience serving search warrants in Spain (or the equivalent in our jurisdiction) the broader the worse. A broad scope does not benefit anyone. If the warrant is served in two steps (seizure and analysis, as seems to be the case), seizure is relatively easy: you get everything that is (or resembles) a storage or computing device and you are (mostly) done.
But then analysis is very, very tough: you can only access information related to the case and you may have to justify how you got to this information in the first time without reviewing all the contents at large.
But then, how do you narrow what’s seized? How do you know if an item is relevant without looking at its contents?
Here in Spain search warrants use to be served in presence of a court clerk and have to be performed in front of the person suffering the measure or if it is not possible, in front of two independent testimonies (yes, law enforcement may go out and pick two random guys that must be present during the execution of the warrant and sign the minutes accordingly).
My experience is that people releases all the information you ask them to if you ask them politely. You have to verify anyway and if you are allowed to, take all suspecting material.
In my humble opinion, best thing in this case would had been to gather some intelligence about the person of interest and serve the warrant when he is at home, ask him politely to release the information you may need and if he releases this information, you can leave the place with relevant and only relevant information and he can keep most of his stuff.
As a summary and looking at the facts from some distance (if I were Mr. Chen or Mr. Jobs I surely may not have the same point of view), if this case is litigated hard and well, it may create some interesting precedents (in one sense or another).
This is the solution to the exercise: https://www.theregister.co.uk/2011/10/12/iphone_4_duo_probation/
See also: https://thewirecutter.com/2011/10/steve-jobs-was-always-kind-to-me-or-regrets-of-an-asshole/