I understand the moral calculus they used. We all feel intuitively that picking up something that someone else left behind is not as bad as seizing it by force, stealth or deception. But in the eyes of the law, it's still stealing. And buying stolen goods is a crime. In those rare cases where a journalist commits a crime and receives the benefit of prosecutorial discretion, it's usually because he can demonstrate there was a compelling public interest at stake. There is no such interest here. The only parties who benefited from Gizmodo's story are Gawker Media and Apple's competitors.First, Bercovici commits the Cardinal Sin of Ethics: he equates legal with moral. As he says, he understands that they used a moral calculus with intuitive appeal, but "in the eyes of the law" what they did it wrong. QED.
Second, he's just wrong on the last point. Apple's main argument is that by publishing the story, sales of the remaining stock of iPhone 3GS will be depressed, costing them millions. That is probably true. But if people change their preferences when they get new information that means the consumers benefited, and--importantly--consumers gain more than Apple losses. Asymmetric information, like Apple knowing that the new phone is in development while consumers remain ignorant, causes markets the break down and become inefficient. Giving consumers more information shifts things closer to a perfect market and improves welfare. Pretending only Gawker benefited is silly, and the writer should know better--especially since he writes for a business news website.
Apple can argue that the story caused bad PR, but it would be a hard case to make. The story generated buzz about one of their products. The bad PR is a product of their aggression against Gawker, which is a choice they made.
I agree that Gawker "stole" the phone, in legalese. I agree they did it for personal gain--the stories were going to be a big hit and they did their due diligence writing good ones. They also hurt someone's career in the process of improving their own, not exactly, a heroic deed. But the world is probably better off for them having written the stories.