The tech blogosphere is all atwitter (literally) about the silicon soap opera wherein one yet-to-be released, next-generation iPhone goes missing in a Redwood City bar and ends up for all the world to see on Gizmodo.com. All discussions about whether the lost iPhone was real (clearly, it was), whether it was purposefully left by some Machiavellian marketer (clearly, it wasn't), or whether this was a one time oops by a young engineer out drinking for his b-day (clearly, that's what it really was) have been done. So, if a legal blog is not going to update you on the hot fuss about missing Apple products straight out of the Valley, what will we discuss? Replevin.
Although covered in nearly every tech and news outlet known to geek-kind, tech site Gizmodo, who ended up with the device, has supplied the most detailed timeline. In brief, a young engineer from the vaunted computer co. went out on his birthday to drink some refreshing German beer in a local hofbrau. He accidentally left the prototype of the new and not on the market yet iPhone behind on his bar stool, where it was found by a person who eventually sold it to Gizmodo. The editors at Gizmodo proceeded to, as The New York Times has it, "rip it apart -- as if it were an alien from another planet -- to dissect its features."
Apple General Counsel and senior VP Bruce Sewell sent a terse letter to Gizmodo on April 19 asking that the phone be returned. But what if Gizmodo's lawyers had given the legal version of "finders keepers," what could Apple do? Gizmodo did pay $5,000 for the phone and had no reason to believe it stolen. Enter the legal principle of replevin.
According to FindLaw's LawBrain, the action of replevin has been a part of English common law (the foundation for much of current U.S. law) since the thirteenth century. It is legal procedure for claiming the right to have personal property returned from the possession of one who has less right to hold it than the plaintiff. In modern replevin actions, the one seeking her property returned can initiate proceedings by serving papers showing why she claims the property and by posting a bond equal to double the value of the property. Then a sheriff may seize the property and, after a short period, deliver it to the plaintiff to hold until a hearing can be had on the claim when the court can determine the rightful owner.
Unlike other forms of legal recovery, replevin focuses on the return of the actual property, not the receipt of monetary damages, which makes it particularly apropos for this situation -- because how would Apple be able to put a price on the lost image, PR, engineering and sheer force of hoopla that an unreturned prototype could cause?
By now it appears Apple has its phone, Gizmodo has much kudos for its scoop, not to mention what they call "warm, fuzzy, huggy feelings of legal compliance," and the guy who found the phone has an extra $5,000. It can only be hoped, in the interests of fairness, if not justice, that the hapless Apple worker-bee who misplaced his phone in a bar (and who hasn't?) still has his job.