Researching and writing 3 scoops and 1 breaking news story: 1 week

Celebrating worldwide coverage on BBC, ZDNet, Techmeme, Dutch TV etc: 2 bottles of champagne

Watching it being ripped to flamebaits in the blogosphere: priceless…

“Apple has certainly some explaining to do”, concluded IP-lawyer Mark Krul in my last story, which uncovered the Cupertino based tech company having filed inaccurate or manipulated visual evidence once more, this time in the Dutch case against Samsung. Earlier this week, Webwereld had revealed flawed evidence in Apple’s complaint against Samsung in Germany.

I concur with Krul. I think Apple has indeed some explaining to do, both inside and outside of the courtroom. But I guess I have some explaining to do as well. Because watching these scoops make their way around the globe filled me with gratification, but also with horror.

The news certainly made an impact, but a lot of publications and blogs just churned it, simply adding quotation marks around the title or ending it with a question mark (I truly hate that). Even though a going-over the facts was only a few clicks or phone calls away, at least with the ‘distorted Galaxy Tab’ story.

What’s more, others added speculation and falsehoods into the mix or tried to discredit it. Now I positively thrive on criticism and polemics, but if principles or biased beliefs start burying the facts, it’s time to set the record straight.

So I’ve compiled a few issues, criticisms, and misunderstandings I’ve seen floating around widely and will try to address them. I’m sure there are other arguments; please add them in the comments.

The findings are incorrect

Actually I haven’t seen a lot of criticism on the specific findings or visual presentations of it. Which really isn’t that surprising, given that the inaccuracies of both Galaxy devices portrayed in Apple’s documents to the courts are not only evident, but easily quantifiable.

Some people have pointed to more ‘irregularities’ in the purported Galaxy’s. For example the Samsung logo that is ‘conspicuously’ absent (Galaxy Tab) or the app drawer is being shown instead of the home screen (Galaxy S).

I have considered these details during my investigation, but found they lacked substance. Why? There are lots of photos out there showing a Galaxy Tab 10.1 with no Samsung logo visible. And the app drawer is not the home screen, but still a central part of the UI. That Apple in this way emphasizes the similarities is hardly inadmissible, different IP-lawyers I’ve interviewed said. (They also concurred that providing visual evidence of a device with the dimensions or the aspect ratio clearly distorted is  absolutely inadmissible. More on that later.)

The findings cannot be verified

This turned out to be quite an issue with the last two stories, as these are based on Apple’s complaint against Samsung in The Hague. The problem: these documents haven’t been published or leaked and are currently only available for viewing at the court. No copying or taking of photos. Only pen and ruler allowed.

Having covered two of my earlier stories last week, a BBC tech reporter mailed he was interested in the third story, about Apple seeking a total European recall of Galaxy devices, kindly asking a copy of the documents.

When of course I couldn’t provide that, the BBC skipped the story, rightly so. Others however haven’t been so prudent, resulting in lots of speculations which itself triggered a frenzy of fact free flaming. If an influential blog writes “Since we can’t actually get our hands on the court documents…” followed by four paragraphs of pure speculation, it’s a little problematic.

In anticipation of this I requested Apple, Samsung, and their respective counsels to release the complaint, so other journalists and the public at large could check the facts, claims and (flawed) evidence. They declined, citing ongoing litigation.

But as the document is available for viewing at the court, isn’t it already semi-public? I reckon their refusal is, more than anything else, control freaked PR, for which both companies are equally infamous, at least in my book.

So once more, Apple and Samsung: release the documents to the public! Alternatively, I urge those who have the complaint but are not officially authorized to release it, to jump over their shadow and leak the damned thing somewhere online.

Until then: the documents are still available for at least another week at the court in The Hague. So it’s possible to check the facts, you just have to move your ass a little.

The flawed evidence is inconsequential/decisive

I’ve seen quite some reports and blogs churning the news, but adding that it’s probably inconsequential. Either because the judges have a lot of other visual evidence to consider, or that it does not make a difference for whether or not Samsung is infringing Apple’s IP rights. Other people stretched the news the other way around: the flawed evidence is proof that Apple’s cases are totally bogus and Samsung is in the clear.

Both inferences are equally hypothetical, and, more importantly, they overlook (or gleefully ignore) the fact that the issue at hand is first and foremost about Procedural Law. Consider this:

There are two police reports on a bank robbery. One report explicitly mentions the suspect had a fully loaded gun. The other report even mentions he shot in the ceiling. Then it turns out the gun wasn’t loaded, and no shots had been fired at all.

Do both police reports provide flawed evidence? Of course they do. Is this something for a judge to consider? Of course it is. Is it newsworthy? Hell yeah, especially for a reporter covering crime and even more so if the police force was known around the world.

But do the facts imply the police reports have consciously been manipulated? No, it could be a mistake, or two mistakes. And do the findings mean the suspect didn’t rob those banks at all, or cannot be convicted for it? Of course it doesn’t.

Stick to the facts

Apple provided flawed visual evidence, however inconsequential or decisive for the proceedings at large. This is a clear violation of Procedural Law, in Dutch, Procesrecht. The judge has been misled, deliberately or not. Both Dutch and German laws require that litigating parties provide “complete and truthful” evidence to the judge. This applies regardless of whether flawed evidence is provided intentionally or mistakenly.

Those are the facts. Of course we can hypothesize how consequential or inconsequential this might be for both #ApplevsSamsung cases as such. And we can theorize on whether the faulty evidence was provided on purpose or not. But these are educated guesses at best, and at worse…well, just have a look on the interwebs, it’s a freaking flame war out there.

So I’ve tried to steer clear of it in my reporting, what’s more, assuming ‘sloppy lawyering’ until proven otherwise. Unfortunately, this holding back seems to have created a low pressure area of context, which subsequently rapidly turned into a high pressure zone of second guessing, overreaching, falsehoods and worse. With this blog post I hope to equalize this pressure somewhat. You know, like the wing flutter of a butterfly…

What’s next

So, what’s next? Of course the saga continues. Next Thursday the Düsseldorf court will hear the German #ApplevsSamsung case about the EU-wide Galaxy Tab injunction. Provided the German judge allows tweeting in the courtroom and the hearing is translated to English on the fly (as it was in The Hague) I’ll be live tweeting some more court antics.

Furthermore I want to thank my colleagues at Webwereld and the IDG News Service in Boston and London for fact checking, proof reading, editing and generally putting up with me over the last week

Feel free to comment below, but please refrain from flaming. Thank you.

Cheers,

Andreas

Referenced articles:

Apple Offers Flawed Evidence in Lawsuit against Samsung (Dutch original)

German court suspends EU-wide ban on Galaxy Tab (Dutch original only)

Apple seeks ban on all Galaxy smartphones, tablets in EU (Dutch original)

Apple Again Cites Inaccurate Evidence in Samsung Patent Case (Dutch original)