Microsoft apology for code theft may not do, Plurk says

I doubt it. A company the size of Microsoft keeps a lot of attorneys on salary, and others on retainer. If Plurk pursues a lawsuit, then the smart thing for Microsoft would be to simply drive Plurk out of business in the courtroom, and then either buy them for nickels on the dollar, or release the product anyway as Plurk disintegrates.

If Plurk is hoping for a Microsoft-funded exit, this is probably not the way to go about it.

Exactly. By doing the right thing, Microsoft didn't erase their liability in this. What they did do though was limit that liability and stop them from getting deeper in a hole.

By acting quickly, they gained some important PR points, but that doesn't erase the offense. This is especially true since they admitted their offense. My guess is that all is left is to negotiate the level of compensation.

    So Plurk should roll over and forget anything happened
    just because Microsoft said they are very sorry?

That's exactly it.

    You see such benevolence from big corporations in the
    same situation almost never. Why should Plurk do any
    differently?

What other people do is irrelevant. I suppose it could be something if you were talking about a patent troll, but you're talking about Microsoft.

Microsoft focuses on building software that corners markets. That's a legitimate mode of operation for a company.

MS did the right thing in their response to this issue. Plurk has suffered no damage, and indeed has won press. Plurk should now also do the right thing and get on with trying to build software, and avoid the martydom track.

    And lastly, this is big business, not preschool - the
    excuse "but a contractor did it, it's not my fault"
    doesn't work. 

But that's not what they said. They accepted responsibility for it.

It's also not in their Plurk's interest to go legal as it will be a distraction from building software.

There are three different approaches to evaluating whether or not Plurk should go ahead with a lawsuit.

There's the ethical approach: is this a matter which, ethically, is worth pursuing? In this case, we might answer by examining the nature and amount of harm done, and the intentions of the parties involved. The harm was limited by unusually quick action, and by the fact that it occurred in a market in which Plurk had no influence or prospective customers to begin with. Microsoft has given a plausible statement denying any intention on its part. Comments suggesting that a lawsuit should be pursued simply because that's the action expected from Microsoft in the case of a role reversal belie a prejudice against Microsoft which doesn't provide a strong ethical basis for a lawsuit.

There's the approach from law: Plurk must demonstrate which laws were violated, in which country, and to what extent. Has Plurk taken any actions to protect its intellectual property prior to this case? Does it hold any patents? Has it copyrighted its publicly readable code or released it under a license? And, if indeed there is a law which has been violated, to what extent would the damages be assessed? If Plurk can't point to some clear loss of revenue from the event, then they must establish an intrinsic value for their intellectual property. From a legal standpoint, that can be difficult.

Finally, there's the approach from likely outcome: statements like, "And no mater how expert or well paid their lawyers are it won't change the fact that they are in the wrong here" belie an extreme naivete in terms of the law and legal proceedings. Legal battles between companies are less often resolved by establishing the "rightness" and "wrongness" of the parties; more often, they are resolved in terms of resources: the company with the most resources wins.

"Hackers" have a peculiar tendency to believe that their expertise in generalized systems means that they can dive into a legal battle and understand the arena well enough to have an outcome in their favor. The term "IANAL" is almost always followed by a layman's legal advice. However, legal proceedings have little to do with programming. Microsoft's legal team for example could simply choose to bury Plurk in onerous discovery, and it would cost Plurk far too much money to even enter the courtroom, while costing Microsoft relatively nothing.

I don't see a winning scenario for Plurk from any of those standpoints.

I 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.

I think this is common sense. If X ships a device with exploding batteries manufactured by Y, X is sued by the end customer, not Y.

Work done by a subcontractor is (in most circumstances) considered work-for-hire. So the main company owns the product of that work (in this case code). If the main company decides to publish this work as their own, they take on all the liabilities associated with that action. It is up to Microsoft to police itself and it's contractors. If it doesn't, that then opens them up to legal liability. The fact that they took care of the problem quickly doesn't lessen that liability (it only stops the liability from getting bigger).

If this wasn't the case, what would stop the companies of the world from hiring shady sub-contractors to steal other's IP and code, pass it on to the hiring company, and then let the hiring company sell that IP/code as it's own? Where are the repercussions?

Let's be clear about this: there are two aggrieved parties in this: Plurk and Microsoft. Plurk was aggrieved by Microsoft when MSN China attempted to use Plurk code as their own. Microsoft was aggrieved by the sub contractor used by MSN China when they tried to pass off code stolen from Plurk as a unique work.

Legally (IANAL), Plurk's beef is with Microsoft. If MSFT then wants to sue the contractor, that is up to them.