As I mentioned in a Quick Notes post the other day, Gizmodo lately acquired and posted photos of what turned out to be a prototype of this summer’s coming 4th-generation iPhone. But they did not stop there.

Subsequently, Gizmodo actually revealed the identity of the poor schmuck who lost it—an Apple software engineer out on the town celebrating his birthday. Then Gizmodo posted yesterday that they had received a request from the Apple legal department to return the phone, and would be complying (in as smarmy a manner as possible).

Gizmodo also explained why Apple couldn’t simply use MobileMe to track the phone instead of just bricking it (and why the (rather feeble) attempts of the person who found it to return it failed).

There has been some speculation (such as from our sister blog Appletell), that the leak was an intentional publicity stunt on Apple’s part, simply because it seems so hard to believe that such a secretive company could simply let one of its low-level employees carry a top-secret iPhone prototype around in public in his pocket. Gizmodo has an answer for that, too: no, it was not orchestrated, and the leak was genuine.

There can be no doubt that Gizmodo, and its parent company Gawker, have benefited from the notoriety. In an instant-message interview, Gawker owner Nick Denton tries to paint it as striking out against the controlled corporate image that he feels turns most journalists into an extension of Apple’s PR machine: “[It’s] more interesting than the usual gadget journalism, which involves sucking up to Apple and hoping you’ll be given a review copy.”

Denton is not concerned about being denied access to future Apple PR events:

None of us thought about that. We had a story. We wrote it. You know how Gawker works. If you think too much about the consequences, you just become part of the system.

But it’s also worth noting that, in Gizmodo’s aforementioned explanation of why the leak was not intentional, Gizmodo writer Joel Johnson says that Gizmodo has been on the outs with Apple ever since they reported on Steve Jobs’s health problems. So perhaps Gizmodo did not feel they had that much to lose in covering the story.

Johnson also said that he felt the way Gizmodo leaked the Apple employee’s name was “incredibly tacky,” and had said so to his co-workers. He is not alone; a number of observers have found Gizmodo’s entire behavior over the course of this story to be reprehensible. Here’s a piece from Edible Apple shining a light on some of the most egregious parts.

Whatever happened to journalistic integrity? (And don’t tell me that’s an oxymoron.) I remember an incident from a few years back when some Indiana Jones sequel material was stolen and the thief tried to sell it to a movie news and rumor site—who instead reported him to the authorities. Perhaps the cases are not exactly parallel—the iPhone prototype was lost, not stolen—but Gizmodo did not even try to do the right thing. They just opened their checkbook.

And when they had the prototype, which they well knew was someone else’s property, what did they do? They opened it up to look inside. What right did they have to do that? If that had been a production model iPhone, it would have voided the warranty!

According to some legal analyses, Gizmodo’s behavior might even open it up to criminal charges. The Guardian looks at California civil code and notes:

So basically, if you come into possession of something, you’re meant to tell the owner and give it back. You can ask for some payment for your trouble (but only the trouble). If you then sell it – ooh, things get complicated. That would be, in effect, theft: depriving the rightful owner of their property. And it’s very, very clear who the rightful owner is here, isn’t it?

But is Apple going to press charges, against Gizmodo or the unnamed bar patron who tried halfheartedly to give the phone back then sold it for $5,000? There’s been no indication of it yet. Apple historically hasn’t been very successful at suing bloggers over leaks, but there are possible criminal matters of property involved here.

On the other hand, Apple might well just want the whole thing to go away, and taking the matter to court would simply extend the media circus.

I feel really sorry for that Apple software engineer in all this, who, as Gizmodo’s Joel Johnson says, ”is a real person—hell, he’s just a kid—who will now spend the rest of his life or at least the foreseeable future of his career living down one of the biggest gaffes in tech history.” The fact that his name is out in the open might make it harder for Apple to fire him—but I wouldn’t lay long odds on his career there lasting much longer after the media circus dies down.

It’s going to be interesting to see what Steve Jobs’s launch for the next-generation iPhone will be like. Will Jobs try to pretend someone didn’t already spoil his surprises?


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