Tag Archives: iPhone

Magic Mac-ball says: No way!

I try not to get into the predictions game (partly because I’m too-often wrong) but I’m willing to bet that this little snippet from LOOPrumors is completely wrong:

“LOOPRumors received a tidbit of information today suggesting Apple is planning to develop a hybrid OS into their next iMac. The iMac should be equipped with both Mac OS X and a touch interface for iOS.”

One word: inelegant. That alone should be enough to damn this one to the bins of obscurity.

Why you should take reports of an iPhone on Verizon with a pinch of salt

Remember this report about how the iPad was a cert for Verizon?:

“The tablet will be supported by multiple [mobile] carriers,” said Brian Marshall of Broadpoint AmTech, citing unnamed sources he said were close to the situation. “Verizon and others,” he continued. “Definitely Verizon. I’ve been told that’s a certainty.”

As I said at the time, there is more chance that Apple will expand to another US carrier which uses GSM than it will build hardware tailored to a single US network.

Is the iPhone 4 micro SIM really “not compatible” with iPad?

According to T3, the iPhone 4 micro SIM is “not compatible” with iPad, dashing the hopes of those who want swap SIMs around:

“The plan, had this not been the case, would have been to buy a 3G iPad but not pay for any data, then simply insert your iPhone SIM into the tablet to leech off its 3G network capabilities under your mobile contract’s data allowance. The official line on this form Apple goes: ‘The micro-SIMs for the iPhone are set up to allow voice calls, SMS messages and data functionality, whereas the iPad micro-SIM is provisioned to allow pay-as-you-go data transfer only.’”

(It’s worth noting that the link that T3 provides to Apple’s FAQs leads to a page which doesn’t say this).

This didn’t quite smell right to me. So I asked around, and the consensus amongst phone network folk is that it’s very unlikely that there’s anything preventing you putting an iPhone 4 SIM into an iPad and it just working.

Networks can apply limitations based on IMEI number, which is tied to the hardware, so a network could block an individual iPad or iPhone. A network could, in theory, pair an IMEI to SIM ID on its own systems when you first use your iPhone, and prevent any other IMEI from working with the same SIM – but this would be a pain to provision just to prevent a tiny number of people swapping SIMs around. It just wouldn’t be worth the hassle.

There is, though, one possibility: SIMs do provide a user-writable area, so Apple could write a flag there when a SIM is first used in an iPhone which the iPad checks for. If the flag is there, the iPad would then refuse to work. But this would be unlikely, tricky to do, and rather pointless from Apple’s perspective – after all, some networks might actually want to sell a “one SIM, two devices” option in the future.

My gut feeling is that T3 has just taken what Apple has written and pushed the story too far. It’s not a compatibility issue, in the sense of “incompatible SIMs” – it’s a provisioning issue, in the sense of “your carrier may well be pissed off when they notice how much data you’re using”. No doubt someone will try it out in a few weeks and we can see!

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On AT&T’s new charges for data

I think my position is summed up very well by a comment from Nic Wise to a hysterical post by Jeff Jarvis:

“While this is going to effect the digerati, 79.75 million of the 80 millions iPhone users in the US will never notice. Except the smaller bill.”

As is usually the case, the digerati fail to see anything except their own narrow needs, and demand that those are served even if it means other people have to pay for them. 

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Smartphone market share

Apple smartphone growth puts competition in the shade

Canalys has released its smartphone market share figures for Q1 2010, and the big winners are undoubtedly Apple, HTC and Motorola, all of which posted treble-digit growth in unit shipments compared to the equivalent quarter of 2009.

Smartphone market share

To put that into a little context: Apple’s worldwide market share increased by 4.4%. This increase is almost the same as Motorola’s entire share of the market, even after the excellent growth it showed over the quarter. Continue reading

Has Gizmodo broken the law with its iPhone story?

I am not a lawyer. But I do play one on the weekends.

More importantly, over the years I’ve become intimately familiar with the law as it affects journalists on both sides of the pond. I’ve covered cases like the “trade secrets” disputes between Apple and various news sources, and even had a couple of cases where companies (including one or two very big ones) have wanted to sue me. I’ve learned about this stuff because I’ve had to, in order to avoid ending up in court.

With that in mind, I’ve been looking through the various statutes which might just affect Gizmodo’s legal case over the putative new iPhone.

Trade secrets law

Jared Earle pointed me in the general direction of the Economic Espionage Act of 1996, which makes it an offence to steal or (and this is important) misappropriate a trade secret. There’s no doubt that a new iPhone prototype constitutes a trade secret – so isn’t Gizmodo guilty here?

I spent a long time looking at the issue of trade secrets back when the Think Secret/PowerPage case was going on, which gave me a little insight into the issue. And my take on it is no, Apple can’t claim violation of trade secrets because Gizmodo published the details of the phone.

Why not? Because in order to be classed as a trade secret, you need to “take reasonable steps” to keep it secret. In this case, unless the Apple employee had actually stolen the phone, by allowing it out in public Apple did not take reasonable steps – and hence cannot enjoy the full protection of trade secrets law.

The classic case law in this is all about cars. Car makers go to great lengths to keep the designs of new cars secret. However, inevitably, they want to test them on public roads – there’s only so much testing you can do on private tracks. So they drive them around on quiet roads, usually with some element of “disguise” like fake bodywork added. This is an exact parallel to what Apple did with the new iPhone. It disguised it, and allowed it out into public spaces.

When something is tested internally, it is a trade secret and you are not allowed to takes pictures of it and distribute them, or even write a description of it. There’s plenty of cases which make this clear.

However, if something is seen from a public space, it loses its trade secret protection. You can photograph it, describe it, or examine it in any way which doesn’t violate any other laws. You probably can’t open up a car and poke around in its innards, but that wouldn’t be because it was a trade secret – it would be because you can’t do that with someone else’s property.

So, in my view, neither Gizmodo nor the finder of the phone have a trade secrets case to answer. By testing the phone in public, even under a disguise, Apple lost its trade secret protection.

(UPDATE: Jonathan Ballerano has a good rejoinder to my points about trade secrets, with some insightful comments on how California law specifically affects the issue.)

Lost property law

In California, what you have to do with lost property is covered by the California Civil Code section 2080. Compared to many US laws, it’s actually a model of clarity, but there’s plenty of clauses and sub-clauses to trip the unwary.

The code sets out a pretty clear set of responsibilities for someone who finds lost property. First, within a “reasonable” amount of time, you have to contact the owner if you know or suspect who it is. Second, if you don’t know who it is or the owner “has not claimed the property”, you have to hand it over to the police – again, “within a reasonable time”.

In the Gizmodo case, assuming all statements made by Gizmodo are accurate, the finder attempted to contact Apple and hadn’t had a response within a few weeks. So far, he’s done the right thing. And note that while he has possession of the phone, the law says he has the rights and obligations of a “depositary for hire”. These are defined in section 1852 of the code as showing “at least ordinary care for the preservation of the thing deposited” – in other words, you can’t break it, dump it in the river, leave it lying in the street, and so on.

The legal problem that the finder will face in this case is showing that, in selling it, he was acting in accordance of the duties of a depositary for hire. I don’t think, in fact, that he can: selling property you know you don’t own when you are the depositary is analogous to you leaving something with a storage company for safe keeping and them selling it (storage companies are, in fact, literally “depositaries for hire”).

Secondly, by selling it, he clearly violated his secondary duty (after attempting to contact the owner) of giving it in to the police, which is established under section 2080.1. So there’s a double-oops here.

Theft and stolen property

But it also gets a lot worse – and our finder may have got himself into criminal trouble. Section 485 of the California Penal Code says that anyone who finds lost property and “appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.”

Oh dear. Suddenly, we’ve moved from a civil matter between Apple and the finder to a criminal matter between the State of California and the finder. Oops.

Of course, were such a charge to be brought, everything would hinge on whether the actions taken by the finder amounted to being “reasonable and just”. Much will depend on exactly what he did. Personally, I think that “reasonable and just” would involve more than a couple of phone calls and raising an automated support ticket – I’d be driving over to One Infinite Loop and walking into reception demanding to see someone (and hoping I got a free new phone when they came out for my trouble).

Up till now, we’ve mostly been talking about the potential legal issues regarding the guy who found the phone. Gizmodo didn’t find the phone, so arguably doesn’t have the responsibilities of a finder with regard to lost property. As outlined, I also think they’re in the clear with regard to trade secrets.

But if Section 485 does, in fact, mean that the phone is stolen, Gizmodo is placing itself in the potential position of being in violation of California Penal Code section 496, which deals with receipt of stolen property. To be guilty, you must knowingly obtain the goods – being in receipt of stolen goods when you believe them to be legally-obtained is the classic defence.

On the face of it, this would be a good defence for Gizmodo. However, it may not be enough to cover them.

A classic example of how the courts test for this is the “back alley” thought experiment. If you buy an expensive watch from a shady-looking guy in a back alley, it’s reasonable to for the court to believe that you know it’s stolen, or at least strongly suspect it is. In this case, the circumstances make it impossible to believe you could have formed a reasonable judgement that the watch wasn’t hot.

In the Gizmodo case, a prosecutor would argue that the site should have known about the law on lost property, and in particular Section 485 of the Penal Code which makes it theft to appropriate lost property. We are, after all, talking about a multi-million dollar organisation that can, at the very least, afford some lawyers.

If successfully argued, that would make Gizmodo guilty of knowingly being in receipt of stolen property – at which point, some of them could end up going to jail for a year. Perhaps more painfully, Apple would be entitled to claim up to three times any losses it had suffered because of the theft and receipt – and I suspect it would argue that the losses it had suffered amounted to many millions of dollars. The bill would be far more painful to Gizmodo that any likely criminal sanctions.

Conclusions

This case is very much not like the earlier ones that Apple brought against Think Secret and PowerPage. There’s no issue about trade secrets here. Once that phone is out in public, even disguised, it’s no longer got much in the way of trade secret protection.

By my count, our unnamed iPhone finder has violated California’s lost property law in two different ways, and could easily be charged with theft because in doing so he misappropriated lost property pretty wilfully. On the statements that Gizmodo have made about the efforts he made to contact Apple, I’m pretty certain that he didn’t do enough, and even if he did, once he got no response he should have handed it over to the police rather than selling it.

Gizmodo, on the other hand, gets off relatively lightly by only being up for a potential charge of receiving stolen goods (assuming the theft charge is also brought). A year inside for Messers Denton and Chen, and a big enough set of damages to bankrupt the company may ensue.

Or it may not. In fact, I think the odds are that Apple will make no attempt to get criminal charges pressed (and it’s pretty unlikely the police would pick it up otherwise), and will take no civil action against the finder of the phone.

Why not? Because I don’t think there’s any benefit to them to doing so. Getting dragged into what would undoubtedly be a long-running case, involving a website which would undoubtedly play the “chilling effects” “press freedom” card wouldn’t benefit them.

But you can bet that Gawker won’t be getting any press access to anything from Apple soon.

Law and ethics

As a reporter – and make no doubt, Gizmodo is reporting here, actually doing journalism red in tooth and claw – you inevitably end up walking close to the edge of what’s legal every now and then. Whether it’s being in receipt of confidential information, publishing something that’s potentially defamatory, or standing closer to the front line of a protest than the police would like, you occasionally have to put yourself in some legally-risky positions.

What I’ve talked about here is purely the legal position. I’m not making any judgements about the ethics of it. In (potentially) breaking the law, has Gizmodo overstepped the line that journalists occasionally have to dance around? In paying $5000 for the iPhone, did it do something that isn’t justifiable?

I’ll save that for another post. Suffice to say, it’s complicated.

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Adobe set to sue Apple?

Steven J. Vaughn-Nichols:

“Apples iron-bound determination to keep Adobe Flash out of any iWhatever device is about to blow up in Apples face. Sources close to Adobe tell me that Adobe will be suing Apple within a few weeks.”

If Steven is correct – and he’s not the kind of guy to write this without some good sources – then things are about to get very interesting indeed.

The best summary of the Apple/Adobe war

Want a a simple, single-paragraph on what the Apple/Adobe iPhone spat is all about? Jean Louis Gassee supplies it:

“Who, in his right mind, expects Steve Jobs to let Adobe and other cross-platform application development tools control his I mean the iPhone OS future? Cross-platform tools dangle the old “write once, run everywhere” promise. But, by being cross-platform, they don’t use, they erase “uncommon” features. To Apple, this is anathema as it wants apps developers to use, to promote its differentiation. It’s that simple. Losing differentiation is death by low margins. It’s that simple. It’s business. Apple is right to keep control of its platform’s future.”

I think it really is that simple.

Apple’s quest for massive market share

John Gruber has an excellent post up on Apple’s apparent-restriction of cross-platform development tools on the iPhone. I largely agree with him – from Apple’s perspective this makes perfect sense, although it puts a massive spanner in the works for magazine publisers, who love Flash like a brother.

But there’s one point that I disagree with John on, and it’s this:

“I don’t think Apple even dreams of a Windows-like share of the mobile market. Microsoft’s mantra was and remains ‘Windows everywhere’. Apple doesn’t want everywhere, they just want everywhere good.”

I think this is wrong: I’m certain that Apple would love, and intends to get, a massive market share for the iPhone.

Why? Because it has already tasted the fruits of massive, dominant market share with the iPod – and it’s seen exactly how much that can do for a company’s fortunes.

Why wouldn’t it want to repeat the trick with the iPhone? The phone, after all, is as ubiquitous as personal music players. And the margins, at least at the moment, are better. If you think Apple is profitable now, imagine how profitable it would be if it sold 60% of every phone in the world.