It's now a question of "what should Gizmodo (who reportedly paid $5,000 for the prototype) have done?" Daring Fireball lays it all out on the line: the phone was stolen, one way or the other. At the same time, Gizmodo should have known better than to buy it.
Realistically, despite the citing of penal and civil by DF, many people believe the old adage "finders, keepers." Thinking that the iPhone was in fact a 3G/3GS model, how many would opt to keep it? More than a few, would be the common sense answer (which does not make it right, by the way).
As DF said, while penal and civil codes assert otherwise, the typical thing to do if you find a wallet or something in a bar is give it to to bartender, whereupon it's placed in the "Lost and Found." All true, but once again, thinking of humans, there are plenty who would not.
It's when it reaches Gizmodo's hands that things become more fuzzy. After all, as noted all around the Web, the unnamed finders of the device pried it open to discover it wasn't a regular iPhone 3GS, and then opted to try to sell it, succeeding with Gizmodo.
Those involved in any sort of engineering testing will also know, despite what DF thinks, that DVT (which the device was labeled) is a common engineering test milestone It is not Apple-specific. From past experience (and this likely differs from OEM to OEM), the milestones go EVT, DVT, CVT, PVT (where P = production). Given that, one might assume, teardown aside, that Gizmodo would know what it was from the start.
Gawker Media head Nick Denton said he'd do it again. Of course, these are the same folks that saw one of their own banned from CES over a childish prank.
What would you do?