What the tabloid media knows (and Gawker doesn't) about celebrity sex tapes and stolen iPhones

By Eriq Gardner

One of the interesting things about Gawker's letter to police in the wake of a raid in the lost iPhone investigation is the identity of the letter-writer. 

The missive arguing that police had violated California's strong journalist shield law was written by Gawker COO Gaby Darbyshire. Judging by her personal bio, it appears Darbyshire was a lawyer in London, mostly handling environmental cases and the appeal of some death row inmates. She's been involved in new media for years, but mostly on the strategic and operations side.

If Gawker had an experienced media lawyer involved in its shenanigans, perhaps it could have avoided this situation. 

How so?

Check out advice given by Lawrence J. Siskind, former special counsel to President Ronald Regan, in an interview with Fast Company.

Siskind points out there's a difference between receiving "stolen" goods (like sex tapes and iPhones) and receiving information, protected by the shield law. He says that Gizmodo should have done what most tabloid magazines like Star do all the time:

"If you're Star magazine, you don't buy the sex tape, you pay to watch it, take a few saucy screen grabs. So instead of purchasing the phone itself, Gizmodo should have simply purchased access to the phone. This may seem like a small distinction, but according to Siskind, it would have made all the difference, and the San Mateo County DA would be essentially unable to prosecute. In that case, it would be clear that what they were getting was information. The California shield law protects that information from either a subpeona or a warrant. Apple would be in a tough position here."

Not just Apple.

Remember that nudie video case where "Grey's Anatomy" star Eric Dane and wife/actress Rebecca Gayheart sued Gawker claiming copyright infringement? Marty Singer, the attorney for the plaintiffs, previewed the case for us by claiming that the person who records the tape owns the copyright. 

The copyright claim may have been a lot weaker if Gawker had only posted a few screenshots of some stolen footage.

Gawker is now considering suing the police over the iPhone raid. Maybe this is a good opportunity for them to beef up their in-house legal staff.