Thursday April 29, 2010

by David M. Gonzalez

If you’re trying to sell a lost cell phone, it appears that $5,000.00 is the going rate.

Gizmodo editor Jason Chen paid $5,000.00 for the alleged next generation iPhone that was accidentally left by an Apple employee at a bar. Seeing as he was nowhere to be found, and seeing as this happened in Silicon Valley, Â he was probably using it to pick up women. Â (And, having lived in Palo Alto, it’s about the only place on Earth where that sort of pick up line would work.)

 

A few years ago, Paris Hilton left her cellphone/PDA Sidekick at a New York nightclub.   Hours later, B-list celebrities everywhere were subject to “is your refrigerator running?” gags.  Phone numbers and photos were posted on the internet. Paris Hilton became even more popular for doing even less.

Some time later, a hotel manager was arrested when he tried to sell the phone on Craigslist for $5,000.00.

 

There have been a number of debates about whether or not Chen is liable for a felony for possession of stolen property. Â While Texas law differs from California, it’s an interesting exercise when you look at the important part of the Theft statute: “A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. Appropriation of property is unlawful if: 1) it is without the owner’s effective consent; Â or 2) the property is stolen and the actor appropriates the property knowing it was stolen by another…”)

 

$5,000.00 is a bargain for the $500,000.00 in media coverage Gizmodo earned the past 24 hours. Further, what if Gizmodo didn’t intend to “deprive” the owner of the property? In both Gizmodo’s case and Paris Hilton’s, the value isn’t in the property – but the information stored within the property. However, the theft statutes aren’t designed to protect intellectual property, only tangible property. Under Texas’ definition of “deprive”, Gizmodo would have to “withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner, or to restore property only upon payment of reward (blackmail).” Â Gizmodo did neither – they essentially paid $5,000.00 for a sneak peak. They didn’t want the iPhone – they wanted to see the new iPhone. It’s hard to see how reporting about a new product in any way “deprives” the owner of the major portion of the value or enjoyment of the property.

 

Which leads to the more disturbing trend: using the police to intervene in what should have been handled in a civil temporary injunction hearing.

 

But if you’re a marketing and media savvy company, you wouldn’t want to necessarily prevent the media from stirring up a frenzy about your new product – and you would like to send a strong message that you will viciously protect your intellectual secrets. A telephone call to local law enforcement is a nice way to do both at once.

 

Now that my youngest son has taken a fancy to putting everything on the living room table into the toilet, I anticipate that I’ll be needing a new cellphone in the weeks ahead. Â If you’ve got $5,000.00, I’m willing to part with my old one.

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