Daniel James’s Techdirt Profile

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  • May 19th, 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.

  • May 17th, 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."

  • May 17th, 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.

  • May 17th, 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.)