Posted on 04/26/2010 1:40:21 PM PDT by Swordmaker
OK, so if the guy who found it tried to return it to Apple and Apple said “nope, not ours”, how is he guilty of violating the California law that says you can’t sell found property that you know belongs to someone else?
Well, that might possibly be a mitigating factor in his favor, but it probably is canceled out by the fact that he sold it to that writer for $5,000, telling him that it was Apple's prototype... LOL ...
But, aside from that, let's say that this guy finds something that he thinks belongs to Apple, but it doesn't. He still has to do something to get it back to the legitimate owner -- but he didn't. Instead, he went to sell it to a writer, tell him that it was Apple's and then get $5,000 for it.
That's one problem. But, I don't know if they've found that guy yet. I suspect one reason why they got a judge's warrant to seize the writer's equipment (besides the crime that the writer committed) -- was to find out who this guy was who found the iPhone in the first place.
In any case, it's the writer who is in a heap of trouble, I would say, because he makes no bones about it being Apple's iPhone ... :-)
The guy who found the iPhone will probably get a "plea bargain" in order for the writer to be "nailed big-time" ... doncha know... LOL ...
If I were that guy who found the iPhone, I would be "laying low" about right now, and maybe even go out of town for a while... :-) ... and the police may not find him.
I do have to agree with you. Many employees were leaving Apple at the time... although my recollection was the partings were voluntary, not enforced lay-offs from Apple. Apple was hurting. They had over 30 different models of Apple Macs on the market at the same time, there were 140 Mac clone makers world wide sucking profits away from Apple, and Apple had no clear direction from the top. Steve Jobs was brought back as interim CEO to clean up the mess.
Motives aside, the lawsuit settlement agreements are explicit. I think it was in both corporations best interests to clear the decks... but the $150 million was not a bailout. At best it was an opportunity for breathing space. . . and allowed Jobs time to focus his energies on re-directing Apple.
Apple NEEDED Microsoft Office for Mac to be continued. Microsoft needed Apple as competition for appearances sake as they went into both congressional hearings and court. Jobs used Microsoft's poor political position as leverage to settle the lawsuit to Apple's advantage.
The settlement was VERY lopsided on Apple's behalf: $150 million for a piece of paper granting VERY restricted partial interest in Apple (preferred Stock — less than 3% of the value of Apple at the time, IIRC), without any management clout (no-voting power=no management decisions for MS which is highly unusual if this were a bail-out), perpetual rights to specific MS intellectual properties at no cost to Apple, limited grants to MS of Apple intellectual properties for yearly cash payments to Apple from MS, permission for MS to include Internet Explorer along with Netscape in the Apple OS distributions but not exclusivity for just five years... and MS contractually required to maintain and continue development of MS Office for Mac for five years. That's was REALLY lopsided. Both corporations elected to spin it as a mutual aggrandizement pact... for appearances sake. The agreements were sealed for five years with the court's approval. Steve and Bill put on their Dog and Pony Show of sweetness and light, and went about their businesses.
Interestingly, when the agreement's five year life expired, Microsoft dropped all development of Internet Explorer for Mac OS X... but continued development of OS X Office for OSX because it was a cash cow for them... adding significantly to MS's bottom line. Apple dropped IE from inclusion of IE from distribution disks as soon as the 5 years agreement concluded.
That being said, I think that Star Traveler was referring to the current recession when he spoke about no layoffs or bail-outs... not the ancient history that we are discussing here, :^)>
Like in inferred, if Microsoft knew how Apple was going to rebound, they may have made different decissions.
I guess we are in general agreement here. ; )
If Apple denied they owned the phone then the seller may be guilty of falsely claiming it was an iPhone, similar to selling a faux purses on the street corner.
The web publisher may be guilty of making a false claim that the phone belonged to Apple. I happen to know that publishers can print any lie they want and the only consequence if somebody can prove libel.
If Apple denied ownership then the complexion of this case completely changed.
Well if Apple disclaimed the product then how was he to “know” it was an Apple product? What he did know was that Apple said it wasn’t Apple’s. If anything he sold it under the false pretense that it was an Apple product.
special treatment for the limosine liberal thug class.
Since the MSM is not reporting this, how likely is this to hurt apple?
The problem with the law still remains for both parties... as neither one attempted to get it back to the rightful owner (whomever that would be, if it wasn’t Apple’s) and my guess is that no matter whether they say they knew it was Apple’s or they thought it was someone else’s — they’re “nailed” either way ... LOL ...
This is a no-win situation for them.
You see... it’s not an Apple-pushed issue here... it’s a “legal issue” here which just happens to involve Apple. If they both did not believe it was Apple’s iPhone, they still both have a problem with the law and violating it and committing a felony, by not getting it back to the rightful owner, treating it like it is their own (in that it can be “sold” and “bought”). They’re in a heap of trouble even with it not being Apple’s iPhone prototype ... :-)
Well if Apple disclaimed the product then how was he to “know” it was an Apple product? What he did know was that Apple said it wasn’t Apple’s. If anything he sold it under the false pretense that it was an Apple product.
The law says nothing about selling under false pretenses. It says that you don't do it at all (either false pretenses or telling the truth) ... and since the value of the phone passes a certain value, they are committing a felony.
The issue of whether it's an Apple iPhone or not is not relevant to the crime committed. It doesn't matter that it's an iPhone and it doesn't matter that Apple said it wasn't theirs. That's because if a lost item doesn't belong to one individual (like Apple) and you get that answer saying that it's not theirs (like Apple) -- it's still illegal for the person to sell it and it's illegal for the other person to buy it under those conditions (even if it doesn't belong to Apple).
That's the crime.
The fact that it was an iPhone just made it "public news" -- it didn't make it "a crime"... doncha know ... :-) What they "did" -- made it a crime.
If anybody has any kind of proof that they contacted Apple, the whole case could unravel.
If the finder claims he called Apple and they told him it was not theirs and he has proof of a call from his phone to Apple then the whole thing becomes a he said she said with the burden of proof suddenly falling on Apple if they initailly denied the call happened.
In fact, charges against Apple could follow.
If the finder claims he called Apple and they told him it was not theirs and he has proof of a call from his phone to Apple then the whole thing becomes a he said she said with the burden of proof suddenly falling on Apple if they initailly denied the call happened.
No, that's because the violation of the law and the crime that was committed -- doesn't depend upon Apple being the owner of the lost item.
If Apple says it wasn't theirs and the guy then proceeded to appropriate the property for himself, on the understanding that it did not belong to Apple -- he still committed the very crime for which he is currently being investigated for right now.
It's a lost piece of property. The law says that you cannot sell it. If you do, you have committed a crime. You have to try to get it back to an owner. If someone says that they are not the owner, the guy still has to get it back to whomever the owner is (and he apparently still doesn't know who the owner is at that point in time).
Once he appropriates that piece of lost property for himself, by selling it -- the crime has been committed... (and likewise for the guy who is buying it...).
Apple's ownership or non-ownership doesn't have any bearing in the violation of the law in California.
They’ve done worse! (Crime runs in computer firms veins, Gates stole the DOS 1.0 with the help of IBM)
.
It is going to be difficult to get a conviction regardless of the statute.
If it goes to jury, you can bet that the defense is going to make Apple the great big brute of a company that purposefully put a couple of little guys in harms way and they manipulated them into breaking the law even when they tried to do the right thing. Then the big company lied to law enforcement to cover up their evil scheme.
It may not be the truth but it will create doubt and the state has the responsibility to prove beyond reasonable degree of doubt.
LEO will trash the computers they got, force the two guys to waste some money on lawyers then the whole thing will get dropped.
When it is over, Gizmodo is going to be heroes in their little community. They guy that sold the phone will spend more than the $5000 bucks he got and Apple will sell millions of phones. The world goes on.
It is going to be difficult to get a conviction regardless of the statute.
Well, two things in regards to that...
One thing is that if someone is going by the law that is on the books, it's an open and shut case... in that it was lost property, it was sold and the law states that doing so is a crime. In that sense, it's absolutely clear on the face of it with the facts that no one has in dispute.
The second thing is whether a jury will follow the law in its decision. So, what you're saying is that there may be a situation of "jury nullification" in which the jury decides not to follow the law in convicting someone.
And that's true, there can always be "jury nullification" as that's definitely something that a jury can do -- refuse to follow the law. A jury can always refuse to convict a clearly guilty party. It's happened before and it will probably happen again.
But, just because "Jury Nullification" can happen doesn't mean that people are not to be prosecuted for crimes that they commit. And in this case, you'll see a prosecution. Whether a jury will refuse to convict a clearly guilty person is another matter.
It IS a crime to sell something as represented as being something it’s not. Try selling a reproduction as an antique and see what happens.
Once again, if Apple looks at something and says “it’s not ours” then the individual did his due diligence before he sold it.
Once again, if Apple looks at something and says “it’s not ours” then the individual did his due diligence before he sold it.
That's not what the law in California says. If the lost property doesn't belong to an outfit (a company) or a person you called and they say, "Get lost! It's not ours and don't call us back again!" -- that doesn't translate into -- "Now the lost device is mine to sell!" ... LOL ...
If anything, when the "finder" discovers that the place he called is not the owner, that simply means he hasn't found the owner yet.
And according to the law, if you sell that lost property, you've committed a crime. He sold the lost property and that's the crime that was committed (not to say anything about the guy either buying property that has been stolen, since the law has defined that situation as "theft" [see the language of the law for that]).
So, they're both (seller and buyer) in a bunch of hot water right now... :-)
No, not jury nullification. Our legal system is built on proving guilt beyond a reasonable doubt. This whole thing is a cluster. Jury nullification means that the prosecutor has met the burden of proof and the jury just doesn’t like the law. Beyond a reasonable doubt means that at least one juror does not think that the prosecutor has met the burden.
You believe that the prosecutor has already proved the case when nobody has seen the case.
Prototypes end up where they are not supposed to all the time. At this time it is not clear why that prototype was in a bar and not locked away in a lab. During discovery, the defense is going to get to make a number of Apple employees very uncomfortable. They will make them even more uncomfortable during a trial. If the defense gets their way, they will get a chance to drag Job’s away from making computers and sit in front of a stenographer. This serves two purposes, if they can make things uncomfortable enough, a big company like Apple can make this case go away regardless of what the DA claims. Second, if you get enough depositions, it is easy to start finding inconsistencies creating the seed of doubt to get your client off the hook.
When this little drama has fulfilled everyone’s needs, it will quietly go away.
The interesting angle is that if Apple claimed it wasn’t theirs but the buyer was able to verify the seller’s claim that it was Apple’s prototype, then which law was broken.
Did he steal abandoned property or sell a fraud that wasn’t a fraud?
I love irony.
No, not jury nullification. Our legal system is built on proving guilt beyond a reasonable doubt.
The facts that are relevant in the California law are not in dispute by anyone. In fact, the writer puts it all down. It was lost, he buys lost property and pays $5,000 for it.
That meets what the law says about the crime. So, the prosecutor isn't going to have too much problem with that one.
What I'm saying is that if the jury thinks that even though the guy commits a crime according to what the law has specified and they do not convict -- then you've got jury nullification as the jury is not convicting on the basis of the law and the facts which shows the law has been broken.
And that's fine if the jury decides to invoke jury nullification because juries do that. No problem. And that's the one situation in which I see that these guys would get off -- as you describe that they might -- jury nullification...
You believe that the prosecutor has already proved the case when nobody has seen the case.
The writer involved has "made the case" himself by what he's already said. (1) Lost property, (2) buys it for $5,000 -- result "crime committed" according to the law... :-)
When this little drama has fulfilled everyone’s needs, it will quietly go away.
Well, if I know "police" and "prosecutors" -- crimes that they go after "go away" when they get their pound of flesh ... LOL ...
Reporters never let the facts get between themselves and a good story.
I’m really glad that that reporters don’t get to determine the facts in a case. If they did, there wouldn’t be a conservative outside the penal system. Poor Sarah would be serving a life sentence for being a stupid poopy face, and W would have been served with a firing squad for stealing elections.
I’m really glad that that reporters don’t get to determine the facts in a case.
Wwll in this case, the "reporter" reported on himself, doncha know ... LOL ...
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