There's also the problem that the "found on a barstool" story came from the guy who sold it to Gizmodo. Gruber hints at another possibility, but let me just lay it out explicitly:
1. Powell takes the photo that he posted to Facebook, but uses the front-facing camera to do it. (Hey, field testing under real-world conditions!) 2. Seller notices this (iPhone with a front-facing camera? WTF??). 3. Seller puts two and two together ("cha-ching" noise, dollar signs roll up in their eyes, etc.). 4. Seller sticks around for a while, picks Powell's pocket at the first opportunity, and bails. 5. Seller lays low for a while to see if word gets out, thinks up a plausible story, then makes the rounds of the tech blogs. 6. Profit!
If this is what Apple believes happened, it's unlikely they'd take any action (assuming they take action at all) until after the phone is announced/released. Starting that ball rolling now would be too big a distraction from the actual launch. But after that it could get very ugly for Gizmodo very quickly.
