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Assuming U.S. law (or its equivalent) will apply here, the law is clear that Plurk can sue and recover damages for this misconduct, even with Microsoft's rapid
by grellas 17y ago
Assuming U.S. law (or its equivalent) will apply here, the law is clear that Plurk can sue and recover damages for this misconduct, even with Microsoft's rapid action to deal with the issue. Even assuming the unlikely scenario that the contractor did it entirely without Microsoft's knowledge, Microsoft and the contractor would be jointly (and severally) liable, and Microsoft in turn would be able to cross-sue the contractor to get indemnification under the contract between them.
That said, there is such a thing as acting with class even when lawsuit remedies are available and the actions of the parties will undoubtedly be evaluated at that level as well.
This is the type of situation where a company like Microsoft would be highly unlikely to want to defend a lawsuit of this type if it had other reasonable choices and perhaps what is motivating Plurk is the temptation posed by the prospect of being able to push the legal issue in hopes of extracting some settlement money. Undoubtedly, in the background, some stiff demand letter has already been sent asking for some payout in the context of confidential settlement discussions. I actually don't blame Plurk for this - it is a reasonable thing to do in this context, even if their primary desire is not to drag this thing through the courts. How this will look to people is another issue, however, and such a strategy could easily backfire given that Microsoft has tried to deal with this swiftly and decisively and in a way that certainly appears reasonable given what happened.
- mrduncan 17y agoI was going to give a similar comment but you summarized it much better than I could have. Thanks for that.
- ynniv 17y agoWhy would you assume that US law will apply in a situation where a Chinese company lifts code from a Canadian company while contracting for a multinational company headquartered in the US but operating in China?
- grellas 17y agoI don't assume that U.S. law will apply. I am predicating my comment with this statement to make clear that the sort of analysis I am articulating would only apply if U.S.-style law applies to the situation. If U.S.-style law doesn't apply, then Plurk's legal remedies might be few, if any. This likely would be one of the trickiest issues in this case if a lawsuit ever sees the light of day. The doubt on this point, by the way, would be one more reason for Plurk not to push the legal side too hard here.
- ynniv 17y agoSo hypothetically, if Microsoft hired a US based corporation to create a microblogging site, and that corporation copied the source code for Twitter, re-branded it as Microsoft specified, and the site went live, Microsoft would be liable? Where is the line then? Are individuals equally liable if they use software that was lifted unbeknownst to them by a software publisher?
- grellas 17y agoCopyright law generally does not excuse "innocent infringers" and is pretty strict in this sense (here is a link to a discussion of copyright that sums this up in the first two paragraphs: http://www.ladas.com/NII/CopyrightInfringement.html http://www.ladas.com/NII/CopyrightInfringement.html). This sort of liability can extend to average people as well, as for example in this news report of a 2-lawyer firm that hired an SEO guy as a contractor for a $1K job and wound up with a $60K+ liability (and certainly must have spent many thousands more in attorneys' fees) as a result of that contractor's having lifted some copyrighted promotional materials wholesale from another law firm's website and used that infringing material as its deliverable for the project (http://www.law.com/jsp/article.jsp?id=1202432820979&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20090806&kw=9th%20Circuit%20Finds%20for%20PI%20Firm%20Over%20Theft%20of%20Firms%20Web%20Site%20Content http://www.law.com/jsp/article.jsp?id=1202432820979&src=...).