Is Taking A Photo Of An iPhone A 'Copy'?

from the do-words-have-meaning? dept

Mon, May 17th 2010 3:04pm — Mike Masnick

There are still some serious questions about the legality of the police's decision to search the home of Gizmodo reporter Jason Chen and to seize his computers as part of their investigation of the iPhone prototype story. However, with the unsealing of the search warrant, some are noticing some oddities. Reader johnjac highlights that the police defense of the need for the search warrant claims that Jason "created copies of the iPhone prototype in the form of digital images and video." While it may just be either a misstatement or an awkward use of the word, it does seem like a strange description of what happened, designed to make the judge think that the "risk" was much greater than it actually was. If there were actual "copies" of the device being made, that might be an issue. But photographing or videotaping a device is hardly making copies. But, of course, in an age where many in the world are trying to falsely equate "copies" with "theft," suddenly the idea that Jason was able to "copy" the iPhone prototype via the magic of a camera makes his actions seem that much more nefarious than they really were.

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Filed Under: copies, iphone, jason chen, search warrant
Companies: apple

41 Comments

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ShellMG, 17 May 2010 @ 3:31pm

Copies of copies of copies
My husband is a trainer for the State of Michigan. Years ago, when an older trainer didn't have enough computers and peripherals for a class of new users, she put the mouse and the keyboard in the copier and made a set for everyone in the room.

She also copied the mouse pad.

This oh-so-humorless woman took special care to warn the trainees that in real life, they were always to use the mouse pad. Her reason? "Because you'll wear the mouse's balls out."

Remember, those were tax dollars at work.
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:Lobo Santo (profile), 17 May 2010 @ 3:55pm

Magic Camera
Well, obviously he was capturing the iPhone's soul with his camera.

; P
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Daniel James (profile), 17 May 2010 @ 4:05pm

"Copy" as defined in CA Penal Code
*IANAL*

California Penal Code 499c(a)(7) defines what "copy" means in regards to the specific charge, 499c(b)(3), against Jason Chen:

(7) "Copy" means any facsimile, replica, photograph or other reproduction of an article, and any note, drawing or sketch made of or from an article.

In this regard, specifically dealing with trade secrets, I think the definition of "copy" is fitting for the action of photographing a not-yet-released device. What is being dealt with here is not the copying of a device, per se, but the copying of the trade secrets. (Trade secrets which happen to be physically embodied in a device, but some of which are transferable via photo.)
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Anonymous Coward, 17 May 2010 @ 4:30pm

What law are they citing?
I'm not sure that you can copyright facts in Amerikka, but they don't seem to enjoy legal protection in America.

Also, did Apple have a properly filed claim to this copyright?

http://www.copyright.gov/help/faq/faq-general.html
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Anonymous Coward, 17 May 2010 @ 4:31pm

cry cry cry, I "copied" the music/dvd/insert whatever, face reality, quit spinning words, you have content you didn't pay for, that is theft not a copyright infringement
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ChurchHatesTucker (profile), 17 May 2010 @ 4:33pm

Re: "Copy" as defined in CA Penal Code
Jason is a complete douche, and the fact that he (or his employer) paid to receive stolen goods should be enough to make his life miserable for a good long while.

That said, he never signed a contract to protect Apple's trade secrets, and should be under no obligation to protect them.

Jefferson is looking sternly down upon the state of California at this point.
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Anonymous Coward, 17 May 2010 @ 4:34pm

Chen's mistake- not taking a picture of his pictures.
This reminds me of the time that the MPAA said filming a TV set was okay, and considered fair use.

http://vimeo.com/4520463
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Anonymous Coward, 17 May 2010 @ 4:38pm

Re:
The Masnick Sidekick Strikes Again!!!
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Daniel James (profile), 17 May 2010 @ 4:45pm

Re: Re: "Copy" as defined in CA Penal Code
Jason didn't need to sign a contract with Apple stating that he was going to protect Apple in anything. The penal code, 499c(b) is pretty clear about what the "theft" was:

Every person is guilty of theft who, with intent to deprive or withhold the control of a trade secret from its owner, or with an intent to appropriate a trade secret to his or her own use or to the use of another [...]

Jason appropriated the iPhone with the intent of using it to bolster Gizmodo's readership. He certainly seemed to be aware that the phone was not publicly released, and he (via Gizmodo) paid good money, supposedly not for the device, but for the "scoop" on the unannounced device. IMVHO, Jason paid for a trade secret so he could report it at Gizmodo.

While I don't particularly like the laws out here, this one doesn't seem so bad.
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Anonymous Coward, 17 May 2010 @ 4:56pm

Re: "Copy" as defined in CA Penal Code
@Daniel,

So, by your logic, I could be convicted of stealing a car because I took a picture of it? Your definitions need updating.
(7) "Copy" means any facsimile, replica, photograph or other reproduction of an article, and any note, drawing or sketch made of or from an article.
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Travis, 17 May 2010 @ 4:57pm

Re:
Lol, love when they post something like this when they obviously haven't read a single word of the story.
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Anonymous Coward, 17 May 2010 @ 5:13pm

Re:
Really? I have a picture of this mansion here, so where is my mansion? Feel free to donate the bridge you live under to my cause.
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ChurchHatesTucker (profile), 17 May 2010 @ 5:14pm

Re: Re: Re: "Copy" as defined in CA Penal Code
That is a seriously fucked up law.

How anyone can square that with free speech is beyond human comprehension. It would take a gorram lawyer.
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Daniel James (profile), 17 May 2010 @ 5:23pm

Re: Re: "Copy" as defined in CA Penal Code
Not quite. The scope of the definition of "article" in 499c appears to be limited by 499c(b) to "trade secrets."

My car, as I understand it, is not a trade secret. The whole text of 499c isn't very long. Read it for yourself and see if you still think my car would constitute a "trade secret."
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Bryan, 17 May 2010 @ 5:38pm

Copies
At least in copyright law, a copy is (or copies are):
"material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term 'copies' includes the material object, other than a phonorecord, in which the work is first fixed." 17 USC 101.
That implies a photo of the phone, or a video of the phone, is not a copy from which the work can be perceived. Although it's true that you can "perceive" the phone in the sense of looking it at, such a copy would fail the last sense of the definition, since it's nothing like the material object in which the work was first fixed.
Also in copyright, a copy must be a substitute for the original. No danger of that here. In other words, does the video or photo of the phone substitute for the phone itself? I don't think it does.
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Bubba Gump (profile), 17 May 2010 @ 5:38pm

Re: Re: "Copy" as defined in CA Penal Code
I've been trying to follow this story as closely as I can, so I don't really understand why you think the phone was "stolen"?

It seems that it was very clearly LOST, not stolen.
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Anonymous Coward, 17 May 2010 @ 5:44pm

Re: Copies
the image of the outside, perhaps. but by opening the phone and taking pictures of the layout, components, etc, that would make those images valuable in many ways. competitors might want them to start a counter product now, investors might want to know what company is producing components to invest ahead of time, etc. that the phone was stolen property which gizmondo appears to have fenced for the thief pretty much makes this one a slam dunk. i would say this guy is done like dinner.
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bob, 17 May 2010 @ 5:59pm

Re:x3 "Copy" as defined in CA Penal Code
Not Stolen
lost by a drunk apple worker
The phone was the property of apple.
The phone was returned to Apple.
But before it was returned, it was photographed.
So fir the drunk who lost it in the first place.
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RD, 17 May 2010 @ 6:03pm

Re:
"cry cry cry, I "copied" the music/dvd/insert whatever, face reality, quit spinning words, you have content you didn't pay for, that is theft not a copyright infringement"

Oh yes? And what just how was a physical iPhone prototype was able to be duplicated exactly via digital means so you have a completely identical and functional duplicate at near-zero cost simply by a mouse click? Please explain exactly how this device was "shared" via the internet? What "content" are you talking about? Its a PHONE, so what part of this story constitutes infringement via providing a COPY of the PHONE? And no, a PICTURE of a phone is not the same as a COPY of a phone.
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Anonymous Coward, 17 May 2010 @ 6:38pm

Re: Re: Copies
http://iphoneroot.com/wp-content/uploads/2010/04/open16_01.jpg
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Anonymous Coward, 17 May 2010 @ 6:39pm

Re: Re: Re: Copies
That's worth at least a billion dollars, right there.
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casiodorus, 17 May 2010 @ 6:40pm

abuse
This is an abuse of DMCA. This is why corporate lobby groups convinced lawmakers to pass such heavy copyright legislation...so they could abuse it. Apples lawyers found a hole in DMCA so they could take advantage of it.
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Radjin, 17 May 2010 @ 7:10pm

Re: Re:x3 "Copy" as defined in CA Penal Code
Yes lost, then found, but the finder did not return so it becomes stolen by definition of law, then the stolen goods were sold to another, so selling and buying of stolen goods. The buyer then vandalized the phone, copied( made photographs of a prototype) posted those photos in order to gain profit, then he as you said returned the destroyed product to Apple.
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Colg, 17 May 2010 @ 7:33pm

umm yeah right
Lets see
Apple gets a giant butt load of free publicity and hype for it's upcoming product and it discovers that one of their employees is either a moron or an advertising genius.

The idea that any competition could capitalize on the photos is laughable.

Seems to me that Apple comes out smelling like a rose.
I feel sorry for them and there wayward phone.
Jackasses...
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Ambrose, 17 May 2010 @ 9:45pm

It's very clear in the warrant
Is nobody actually reading it except me?

It quotes section 499c(b)(3) "copy (including photograph) any article representing a trade secret."
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Ambrose, 17 May 2010 @ 9:49pm

Never mind the weirdness of the laws or police actions involved ... why is the entrance to 40726 Greystone Terrace located between 40734 and 40718? I mean, mathematically, of course it's located between them, but, what happened to numbers 40720, 40722, 40724, 40728, 40730 and 40732?
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ethorad (profile), 18 May 2010 @ 3:10am

Re: Re: Re:x3 "Copy" as defined in CA Penal Code
You are ignoring that the finder did try to return it, by contacting Apple and explaining the situation.

Since the Apple employees manning the phone lines hadn't been told about new prototype phones, much less that one had been lost, they assumed it was a Chinese copy and not a real one, and so didn't ask for it back.

At that point, the finder and Gizmodo had no evidence that it really was an Apple device. It seems that was only confirmed by the Apple branding on the internal components (only visible after opening the phone - "vandalized" in your words) and then finally confirmed by Apple coming clean about the leak and asking for it back.

At no point, as far as I can tell, did either the finder or Gizmodo try to hide the device or prevent Apple from getting it back. Not exactly a hallmark of theft.
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Anonymous Coward, 18 May 2010 @ 5:19am

Look at all the free publicity
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Tribal Leader, 18 May 2010 @ 5:54am

Cameras
I believe what concerned Apple and the judge was the fact that cameras steal your soul. The tribes of my land have known this for years. The white man come, take picture and steal your soul.

Obviously this is the biggest issue here. By taking pictures of the iPhone, the photographer commited THEFT... he STOLE the iPhone's SOUL... and in extension Steve Jobs' soul.

This is a VERY serious matter! My people have had their souls stolen by National Geographic photographers for years and finally something will be done about!

My soulless people cry out for justice, and now those cries are joined by the cries of the soulless Steve Jobs!

JUSTICE!!!

Tribal Leader
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Anonymous Coward, 18 May 2010 @ 7:43am

Is anyone else reminded how in the old days when cameras were just starting out that Native Americans believed that having their photo taken would steal their soul?
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Joel (profile), 18 May 2010 @ 7:47am

Re: Cameras
But the phone was off/dead...how can you steal a "dead" soul? Wouldn't it go to "heaven" or "hell" or "nothing happens"?
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Anonymous Coward, 18 May 2010 @ 8:34am

Re: It's very clear in the warrant
It quotes section 499c(b)(3) "copy (including photograph) any article representing a trade secret."

But once the Apple employee has "lost" the phone he has effectively placed it in the public domain secrets wise.

Apple are still entitled to their property back - but by their negligence they have given up their right to keep it secret.

It is exactly the same situation as if they had accidentally announced some technical details on television. Once they themselves have let the cat out of the bag it is fair game for everyone else.

What they are trying to do is like trying to get someone to sign an NDA AFTER they have already given them the information - the problem is that it is too late.

Of course if you break in to an Apple building and photograph the phone then that would be the situation in which the law you quote would apply - but this is very different.
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Anonymous Coward, 18 May 2010 @ 8:37am

When is a photograph a substitue for the real thing?
The police sent a man a speed camera photograph of his car with a demand to pay a fine.

He sent them back a photograph of the money.

They sent him a photograph of a pair of handcuffs....
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ChurchHatesTucker (profile), 18 May 2010 @ 9:13am

Re: Re: Re: Re:x3 "Copy" as defined in CA Penal Code
"only visible after opening the phone - "vandalized" in your words"

Um, the dude literally filed the serial number off. Not exactly upstanding citizen behavior.
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Mike, 18 May 2010 @ 1:15pm

Re: When is a photograph a substitue for the real thing?
Porn
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Derek Kerton (profile), 18 May 2010 @ 3:52pm

Re: Re: Re: "Copy" as defined in CA Penal Code
So if I were at the same bar, 10 minutes before the Apple engineer lost his phone, and took a picture of my wife that had the phone visible in the background, and posted my bar pics on Flickr, then I would be guilty of theft, of copying the iPhone v4, and of stealing trade secrets?

Either your logic, or the law's logic sucks.

That phone was out in public. That is no longer a "secret".
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Derek Kerton (profile), 18 May 2010 @ 3:55pm

Re:
Yes. I was reminded by the various comments prior to yours making that joke. Notably, the one directly above yours.
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Daniel James (profile), 19 May 2010 @ 6:34pm

Re: Re: Re: Re: "Copy" as defined in CA Penal Code
Not quite. The logic used in your example refers to the specific definition of "copy," as defined by 499c(a)(7), but the law that Jason is being alleged of breaking is 499c(b)(3), which is, in context with 499c(b):

(b) Every person is guilty of theft who, with intent to deprive or withhold the control of a trade secret from its owner, or with an intent to appropriate a trade secret to his or her own use or to the use of another, does any of the following:
(1) Steals, takes, carries away, or uses without authorization, a trade secret.
(2) Fraudulently appropriates any article representing a trade secret entrusted to him or her.
(3) Having unlawfully obtained access to the article, without authority makes or causes to be made a copy of any article representing a trade secret.

Because of the text, I do not believe your scenario would bring this law into play, because:

1. You do not have an "intent to deprive or withhold the control of a trade secret from its owner" nor do you have an "intent to appropriate a trade secret to his or her own use or to the use of another."

2. You have not "unlawfully obtained access to the article."

3. You have not violated 499c(b)(1) or 499c(b)(2)

As for the "out in public" comment, the phone was in a specially-designed case to conceal its identity. Also, the internals of the phone were not made known by Apple to the public.
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Derek Kerton (profile), 19 May 2010 @ 8:40pm

Re: Re: Re: Re: Re: "Copy" as defined in CA Penal Code
I accept your point.

I hope the law does not apply in this case, for a phone left in a public bar, found, offered for return, refused, sold, and...um..."examined" prior to return.

Though the detail of the law may stipulate different, I simply don't see the concept of "stolen" anywhere in this story. If shit I lost in a bar were returned to me like this, it would be an improvement. Every time I ever lost something, it was gone forever.

I also don't find requiring Apple to say "Yes, that is our phone." as extortion or blackmail. That, of course, is the very premise under which it must be returned to Apple.
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jack, 21 May 2010 @ 12:22pm

find about a person from a phone contacts in iphone
http://www.freephonenumberfinder.com/new+york/area-code-347/bayside/347.408.xxxx
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Anonymous Coward, 24 May 2010 @ 7:58am

also note the 5K they payed the guy who "found" the phone at the bar, but did not give it to the bar, so yeah, they knew they bought stolen goods, stolen, because the guy who found it, did not have an intention of returning it
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