The guy who originally found Gizmodo's infamous iPhone 4G prototype has spoken:
Brian J. Hogan, a 21-year-old resident of Redwood City, California, says although he was paid by tech site Gizmodo, he believed the payment was for allowing the site exclusive access to review the phone. Gizmodo emphasized to him “that there was nothing wrong in sharing the phone with the tech press,” according to his attorney Jeffrey Bornstein.
Wired.com identified Hogan as the finder of the prototype by following clues on social network sites, and then confirmed his identity with a source involved in the iPhone find.
Hogan's lawyer explained in a statement how he came to possess the phone after Gray Powell left it behind at Gourmet Haus Staudt:
Hogan was in the bar with friends when another patron handed him the phone after finding it on a nearby stool. The patron asked Hogan if the phone belonged to him, and then left the bar. Hogan asked others sitting nearby if the phone belonged to them, and when no one claimed it, he and his friends left the bar with the device.
A friend of Hogan’s offered to call Apple Care on Hogan’s behalf, according to Hogan’s lawyer. That apparently was the extent of Hogan’s efforts to return the phone.
“He regrets his mistake in not doing more to return the phone,” says [lawyer] Bornstein’s statement. “Even though he did obtain some compensation from Gizmodo, Brian thought that it was so that they could review the phone.”
The problem with this argument—that Gizmodo's payment to Hogan was for exclusive "access" to Hogan's one-of-a-kind iPhone prototype, not a sale—is that it presumes the phone was Hogan's to not-really-sell. Even if 'ownership' of the phone hadn't actually been transferred to Jason Chen or Gawker Media, the fact that Hogan was in a position to ask for money in return for access exposes him to theft charges. This also doesn't address the issue of whether Gawker's paying $5,000 for the phone, then disassembling it on video before posting a series of articles about it, could at all be considered mere "access".