Even I, as a co-founder of Plurk, have to write this press release myself.
You poor dear. Look guys, quit while you're ahead. Everyone knows you are not going to sue Microsoft because the legal fees would be bigger than your market cap.
The smart thing would be to take this down and say only that you're 'discussing it with them. Let MS takes you out on a date and give them some room to make it up to you. Sometimes the best negotiation strategy is to keep your mouth shut and let the other side do all the talking. This missive sounds petulant.
I'm just glad to see that most of HN isn't riding the conspiracy train with them. It's like they imagine Bill Gates personally copying their code while cackling maniacally. I think it was fairly obvious that the whole thing was an accident (meaning it was not Microsoft's intention to have developer's steal Plurk's code). Microsoft gave a surprisingly refreshing apology and took the site down.
This is quickly becoming an object lesson in how crowds can turn against you.
I'm not a legal expert, but like others, I don't think they have much of a legal argument. But isn't "your business should be based on making innovative products" exactly what Plurk is complaining about?
Although Microsoft was caught lifting code, what if they didn't copy so exactly? Their intention was clearly reimplementing Plurk for China, probably without all the Taiwan users that would make it a sure thing that Plurk is banned. How is that really any better from an ethos perspective?
Plurk is very clearly satisfying some kind of niche in parts of the world that Twitter does not (maybe its the emoticons or easy way for viewing replies in the web interface? or the idea of karma?).
I suppose not innovating is one way of running a business, but it's one I say "boo" to.
Agreed. This is weak on Plurk's part. How were they harmed?
Microsoft screwed up and hired a shady vendor who did a shady thing. As soon as they realized what happened, they owned it, fired the vendor, and shut down the site.
Just because Microsoft has money doesn't mean that Plurk deserves it.
I think you've hit the nail on the head - and that's exactly why Plurk is going about it the way they have: They're not expecting a proper legal repercussion to take place - they want publicity for themselves, and bad press for MS. In his previous blog post he begged for this to become viral.
Agreed again - if Microsoft was in beta too - it can be argued that the service was never fully offered to the public either, making the case even weaker...
beta badge != unavailable. A badge is actually a bit of a joke - a marketing tool itself so you can later say "our service that has been launched for years is out of beta!"
But, just as you point out they can't sue them accepting their apology doesn't guarantee they won't see Juku 2.0 again in a month or two. They got basically a stay of execution on this, but they don't have MS saying we won't be in the market.
I would be pursuing options of a lawsuit and talks with MS at the same time. If talks break down with MS I'd want have researched that option. Even if it's just a negotiation trick should it get really dirty.
In the case of Tomato Garden they reported Hong Lei to the authorities who arrested and imprisoned him for three and a half years along with lesser sentences for his associates. But it seems to hinge on whether the theft has made any money.
First of all, sending out a press release saying that you are still considering all your options is a bit silly. "We're thinking about it" isn't really news.
But more importantly, that fact that they are still considering legal options is a bad sign. The fact that Microsoft responded with a quick and unequivocal apology bought them a lot of good will. Even if Plurk were to succeed in a lawsuit, it will be a big distraction and might possibly hurt the brand.
If I were in Plurk's shoes, I'd be sitting down with the Microsoft China folks to discuss acquisition/partnership. Clearly Plurk has something Microsoft wants, and now might be the best time to get them to pay for it. But you're not going to do that by holding the threat of a lawsuit over their heads.
I wonder if any of these guys have ever done any business before. This is business (startup, technology or otherwise) 101 , you have the crowd support/goodwill, you have the apology from the bigger party, they obviously like what you do.
What an idiotic statement. A judge would look at the actual damages; launching the site for an extremely short time in a country that they are not allowed to operate in just couldn't have caused them much actual financial damage.
How much are the actual damages? Zero (what seems likely without more information) times whatever punitive multiplier you can think of isn't much at all.
I'd say they fully deserve to lose a legal battle that drains tons of money, so that MS can buy their then nearly-bankrupt company for pennies on the dollar, if they aren't smart enough to drop it when they have already benefited from the situation.
This is an inaccurate statement of the law. Chapter 17 of the United States Code goes into voluminous detail of that actual law. Actual damages includes costs saved by the infringer. Courts can also impose punitive damages, which is not necessarily a multiplier, as well as costs and attorney's fees.
If the infringer did not have to incur development costs, or reduced development costs, those would be saved costs and included as part of the damage award.
I will also add that the plaintiff only needs to enter the infringer's gross revenues of the entire company into evidence. It is up to the infringer to justify deductible expenses from non-infringing business in order to arrive at the profits gained from infringement.
Once again, this is assuming the US has jurisdiction.
There are damages - Plurk has a right to any money derived from copying their code, including any payments made to the evil outsourcing company and any advertising revenue (gross) that the site brought in during its short life.
That being said, suing MS can only lead to ruin. If they could keep a BS case like SCO on life support for so long, they can certainly keep this running long enough to bankrupt Plurk. I don't know about the legal system in Taiwan though - maybe they could get a judgment against Microsoft before the universe cools.
With all eyes on you, the right move would have been to accept Microsoft's apology, and thank them for seeing how great Plurk is - after all, imitation is the best form of flattery. Then it would have been a good chance to mention how to sign up for Plurk.
I can empathize with his "pain"; and it certainly leaves a bad taste to let this just slide straight off.
But the problem is I think that there are considerations: such as the fact it was ripped off by a Chinese contractor (which as has already been discussed at length, is something not uncommon), the fact that Microsoft obviously screwed up - but dont appear to have done this maliciously.
If anything I would approach it with discussions to license to code; MS now have a user base in a market that Plurk is banned. That is commercially viable for both parties.
I don't know about anybody else, but I hadn't ever heard of plurk before this. They could have leveraged this for some great PR ("come see the site that is so awesome that even Microsoft wants to rip it off"), instead they throw a fit and destroy any PR and goodwill options they might have had.
They should consider paying Microsoft instead, for the free marketing they received. I had all but forgotten about Plurk before this, and for many people, this incident might be the first time they heard about Plurk.
I've got the feeling that this is going to be one of those David vs Goliath battles where Goliath breaks the neck of David after five seconds without breaking a sweat and then everyone goes home with a sad face.
I'm not even sure about the sad face part given the other comments so far. Seems Goliath didn't want to make a fight of it, but David insisted on having his satisfaction.
Exactly. They're in the very rare position of enjoying the goodwill of Microsoft. This is like winning the lottery for a start-up, only better. But no, they charge instead. Incredible.
First of all, like most of the people on HN I too agree these guys are getting a little sappy. Give it a rest and stop crying. This all sounds like the new American dream to me, wait for someone to create an accident and take advantage of it by suing the pants off of them. Your company is worthless, so you're going to sue Microsoft to make your millions?
Second... Plurk won't let me sign up with a MobileMe email address =( - http://grab.by/1fum
I agree. The new American dream... I hope that I am a victim someday... er... wait, according to society we are all already victims... let me start over. I hope and dream that someday I am the victim of a wealthy perpetrator so that I can sue them and become rich.
It seems strange to me that although Microsoft is the company at fault here many of the commentators seem to be basically praising Microsoft and blaming/deriding the guys whose code was plagiarized.
You actually have to look at Microsoft as part victim here. The company at fault is the subcontractor, and Microsoft handled it quickly and appropriately once notified of the issue. Plurk could have handled this differently from the start, but chose the publicity route and it got them noticed. Now the publicity train has left the station and they have not realized it, but soon they will see the goodwill they gained can be quickly lost if they push this too far.
Microsoft did not steal the code. an Employee or contractor did. They, the individual(s) that stole the code is who is guilty here. As soon as Microsoft was made aware of the situation they pulled the offending code/software immediately.
Microsoft is guilty of it because they are the ones who published the code/product as their own. They hired someone to do the work. Yes, that person ripped of Plurk, but Microsoft failed to verify their contractor's work. That makes them culpable.
Plurk was ripped off by Microsoft. Full Stop.
Now, Microsoft has it's own options with respect to that contractor, but their swift response doesn't erase Microsoft's liability.
Are you kidding? If I hire a contractor to do work, and that work is done (meaning I can look at and interact with the product) then I'm not going to waste valuable time "verifying" that product against every other product on the market. Especially against other "beta" products that only a niche few (relatively speaking) have heard about. That would be a dumb use of time. Why? Because even if the contractor did rip off the code, (which should be so unthinkable as to not even be an issue,) all I have to do is say "hey, the contractor did this, not me -- I've pulled the plug and fired the contractor." End of discussion. That's exactly what Microsoft did, and now Plurk is pushing the issue too far.
Plurk did get a ton of free PR from this. For thousands or tens of thousands of people, this will be the first time they've heard of Plurk. To claim that Plurk was somehow "damaged" amidst all of this is just stupid. Yeah, they were ripped off. But nobody got rich off of it. There is no money to chase down. Plurk could net themselves way more money (or rather, any money at all) by trying to generate new profits by taking advantage of all the free PR they got. But they're throwing a hissy fit after Microsoft has done their part in fixing the issue (pulling the plug on a product that wasn't even released yet anyway). As others here have said: what a waste.
This is the risk you take with using contractors. When you hire someone to do the work, you are the legal owner. This includes the good and the bad. The good being you can make money from it. The bad being that you now have a potential legal liability. When something is done work-for-hire, it is legally just like you produced the work in-house. So from the outside world, Microsoft is the entity that is legally responsible. The contractor is responsible to only Microsoft (and I'm sure their contract includes a provision to deal with this).
What you're describing is a legal nightmare. In this case, imagine that Microsoft didn't pull the plug. What would happen then? Would Microsoft say "Oops, sorry, it was the contractor's fault. But we paid him, and got our code, so we're going to keep using it." They didn't pull the plug out of the goodness of their hearts. They did it because they are legally liable for it, and the longer it was in the wild, the worse their liability.
The rest of this is PR. Plurk maybe pushing this a bit far, but that is a PR decision, not a legal one. From a legal perspective, they might have been injured enough for a lawsuit.
Lets also remember that that is the 2nd time in 6 months MS has been caught out on this kind of thing, and the 2nd time they've used the 'but a contractor...' excuse...
I'm not praising MS. It seems they didn't pick their development partner wisely and they should certainly make it up to Plurk. My objection was based on the fact that MS has already showed a willingness to do this by issuing an unusually candid and fulsome apology.
The wise thing now for Plurk is to accept that apology gracefully and work with rather than against MS to move forward. If they don't want to be acquired, perhaps MS can devote their legal resources to helping Plurk gain access to the China market as a development partner, or lend some development resources to help Plurk package their solution into an API that MS and others can license a la Wordpress.
At present, MS is (almost certainly) spending good money on having their lawyers work out a defensive strategy against a possible lawsuit that will cost them a lot in bad press but which Plurk probably can't complete, given the implication that they don't even have funds or expertise to hire a PR company. I presume it's Plurk's Taiwanese business identity that keeps them out of the market in mainland China (since China technically views Taiwan as a rebellious province rather than a separate country, for historical reasons).
Some Taiwanese companies do conduct business in China, but Plurk is likely too small to tap the necessary diplomatic channels that facilitate such arrangements. MS could surely assist with that...if Plurk will let them. What Taiwanese diplomat will want to advocate for them if there's a chance it could lead to loss of face down the line? By maintaining their aggrieved stance, Plurk risks being given a grudging payoff to go away, whereas if they respond graciously, they might get the keys to the kingdom. The one thing more annoying than a sore loser is a sore winner.
Maybe this is a good opportunity to discuss being acquired by MS. Apparently they like your idea so much they want to have something like. Just buying the technology would be a reasonable move for them.
The logic behind this might mean that Plurk is aiming to force Microsoft into some form of settlement by which MS stipulates to certain restrictions on its future activities as a condition to obtaining a release, the spirit of which would be along the following lines: "you, as a willful infringer caught red-handed already, agree that, in the event you should ever again use any code or interface remotely resembling ours, we can apply to a court for immediate injunctive relief."
Obviously, I am speculating but the last paragraph of the press release tends in my view to support this theme, implying that these founders have a perception this was not at all innocent on Microsoft's part but instead something quite calculated.
This also may constitute gamesmanship by which Plurk is trying to create enough of a nuisance to force Microsoft to consider acquiring it as a way of clearing the way for it to enter this market in the future.
This may indeed be nothing more than bad judgment by these founders, as the comments here suggest, but it must have some logic behind it (wise or not) and that logic may well run along the above lines.
I suspect the company was immediately inundated with "helpful" legal advice when this went to press.
While everyone at HN (and probably the Plurk founders) would settle and go back to writing tech, suing Microsoft is every trial lawyer's dream. I think it's only fair for Microsoft to settle since they did have the service up for a few days but a full lawsuit is clearly OTL.
That said, I'm sure both companies will come out unscathed. The one group I see being hurt by this incident are the Chinese contractors. There were a large number of posts here and on /. stereotyping Chinese hackers as cheaters immediately after this incident.
Ah, I was rooting for you guys. I really was. But you played this in the most unwise way. You are nothing more than a speck on the bottom of Microsoft's foot. You're not even a gnat causing them the tiniest bit of annoyance. It's harsh, but reality. And what could have turned out to be an amazing opportunity to potentially strike a deal with MS will end up with you perhaps with a bit more publicity, but severed ties because you're trying to be sharks. You've got to bite your tongue and subdue your emotions at times to get ahead. That's a general life lesson.
Sounds like Plurk should taken the horrible burden off the CEO from doing public relations all by himself. He's not very good at it. They've gone from exploited underdog to greedy lawsuit trolls pretty quickly here. Whatever small amount of traffic Microsoft's regional site took away from Plurk was totally offset by the free publicity. They should have sent Microsoft a Thank You card.
The open source projects I see on their site aren't under AGPL, they're not even GPL, they're BSD. What's the issue with using it?
Also, unless they're following a different credo than the rest of the open source world, why are they complaining about "stealing" UI? I thought people in Open Source didn't believe in software patents?
Plurk should settle down, Microsoft helped them! Microsoft gave Plurk a lot of free marketing and exposure from this incident and Microsoft has pulled their product and won't be competing now.
The consensus position seems to be that they should accept MS' apology and move forward with their world-domination plans with their obviously desirable UI rather than moaning about some vague notion of damage done to them for the brief time that MS had a clone of their UI up.
They either need to sue MS if they really think they've been aggrieved or get over it.
Moaning on their blog accomplishes absolutely nothing positive and has started to lose them sympathy.
See the series which ran on steveblank.com about a competitor stealing their IP which was prominently featured here as an example about how to use adversity in a constructive manner.
Dwelling on adversity with a "woe is me" attitude is fundamentally antithetical to the entrepreneur/startup mentality as evidenced by the hostility they're starting to encounter in these comments.
A hard-working craftsman is selling his goods at market, when a thief in servant's livery grabs something from his stall and runs away. Leaving his son to guard the stall, he pursues the thief, following him to the house of a rich man, where guards forbid him to enter.
He wails at the loss of his precious goods, attracting the sympathy of a crowd who have followed the chase out of curiosity. Hearing the commotion, the rich man comes to the gate and is embarrassed. He fires the dishonest servant and apologizes fulsomely to the craftsman, praising his handiwork.
Now, should the humble craftsman berate the rich man in front of a crowd for the fact of his poor hiring decision, or compliment him on his wealth and taste? Would it help if the rich man was reputed to have a beautiful daughter with a substantial dowry, who had been unable to find a suitable husband?
You poor dear. Look guys, quit while you're ahead. Everyone knows you are not going to sue Microsoft because the legal fees would be bigger than your market cap.
The smart thing would be to take this down and say only that you're 'discussing it with them. Let MS takes you out on a date and give them some room to make it up to you. Sometimes the best negotiation strategy is to keep your mouth shut and let the other side do all the talking. This missive sounds petulant.