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Carmack accused of stealing Zenimax's tech for Oculus VR

Maggot

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Codex 2016 - The Age of Grimoire
Carmack redpilling the masses
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Lagole Gon

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Carmack is a thief, everybody knows it:

As reported in David Kushner's Masters of Doom, when Carmack was 14, he broke into a school to help a group of kids steal Apple II computers. To gain entry to the building, Carmack concocted a sticky substance of thermite mixed with Vaseline that melted through the windows. However, an overweight accomplice struggled to get through the hole, and opened the window, setting off a silent alarm and alerting police. John was arrested, and sent for psychiatric evaluation (the report mentions 'no empathy for other human beings' and describes Carmack as 'a brain on legs').

:salute:
 

abija

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They wouldn't have to look at the code at all....
If the breach of contract would have been clear like you imply they wouldn't have tried to prove occulus used code he wrote at zenimax and he "stole" when leaving.
 

Kane

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Carmack is a thief, everybody knows it:

As reported in David Kushner's Masters of Doom, when Carmack was 14, he broke into a school to help a group of kids steal Apple II computers. To gain entry to the building, Carmack concocted a sticky substance of thermite mixed with Vaseline that melted through the windows. However, an overweight accomplice struggled to get through the hole, and opened the window, setting off a silent alarm and alerting police. John was arrested, and sent for psychiatric evaluation (the report mentions 'no empathy for other human beings' and describes Carmack as 'a brain on legs').

:salute:
Par for the course as multi billion dollar fascist philanthropist. America just breeds these faggots. Too many german genes over there.
 

Black

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Carmack is a thief, everybody knows it:

As reported in David Kushner's Masters of Doom, when Carmack was 14, he broke into a school to help a group of kids steal Apple II computers. To gain entry to the building, Carmack concocted a sticky substance of thermite mixed with Vaseline that melted through the windows. However, an overweight accomplice struggled to get through the hole, and opened the window, setting off a silent alarm and alerting police. John was arrested, and sent for psychiatric evaluation (the report mentions 'no empathy for other human beings' and describes Carmack as 'a brain on legs').

:salute:
What would a 14yo need Vaseline for.
 

Infinitron

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Zenimax vs. Facebook Part 1: The Troubled History of VR

splash_zenimax_vs_facebook.jpg


Back in February of this year, a Texas jury awarded half a billion dollars to ZeniMax in the long-running Zenimax vs. Facebook case. Half a billion bucks is a lot of money, even for these titans. Zenimax is of course the parent company of Bethesda, of Skyrim and Fallout 4 fame. Facebook owns Oculus, the former darling of the VR headset scene. So while in court this was a fight between Zenimax and Facebook, to the gaming community this was a fight between “Bethesda” and “Oculus”.

I don’t really care about the petty slap-fight between these two gargantuan companies as they bicker over a pile of money neither one of them needs or knows what to do with, but there are some really interesting side-arguments going on here about source code and VR.

Disclaimer

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I know Zenimax is overbearing, petty, and not above bullying people with lawyers. I know making inaccurate statements is a good way to piss people off, and it’s really easy to do that in a case this complex. Back in 2010 I wrote a column that explained that you could sue anyone for anything as long as you could afford the lawyers. This is still true, and Zenimax can now afford another half a billion dollars worth of lawyers. That’s a lot more lawyers than I can afford[1] so I’m hoping that hanging the word “opinion” over this series and filling it with very obvious embellishments for comedic effect will act as a totem to ward off the Zenimax legal shock troopers.

This article (or series of articles) is my opinion and analysis, which is based on imperfect knowledge of complex events and shaped by personal biases. The parts that aren’t obviously opinion are often extrapolation on my part. I am not a lawyer, I don’t have any special inside knowledge of this case, and I have no expertise in corporate contracts except that I’ve signed a few and always felt uneasy about it afterwards.

To be honest, this entire case is a fractal. From a distance it looks like Zenimax is suing Facebook over VR, but then you zoom in to see the details and it’s an argument over trademarks, and if you zoom in on that it’s a he said / she said argument over source code, but then maybe it’s also about a contract, or maybe deep down it’s about a couple of engineers and a trade show demo? Or maybe a Kickstarter campaign? It’s actually kind of all of those things, it just depends on how deep you want to dig and how much patience you have for the fussy details.

tdi_vr11.jpg


I’ve read numerous news stories about this case and I still feel like I’m missing context. I’m not sure if two news stories are contradicting each other or if they’re simply reporting different fragments of the same larger story. It’s like a game of telephone where the message changes a little each time, except I can’t even tell what order the messages moved in, or where the gossip chain started.

I even asked a lawyer for help, and he was able to point me in the direction of more documentation and clarify many points for me. As a result I’ve gone over some legal briefs like this one. They turned out to be surprisingly readable. Having signed my share of legal documents, I know how impenetrable legalese can get. I assumed court briefs – documents aimed specifically at lawyers and other experts – would be even more baffling than the mortgages and NDAs I’ve dealt with, which are ostensibly intended to be read and understood by laypeople. But as it turns out, some of this court stuff can get pretty informal and it’s not particularly dense with jargon.

As helpful as this was, it only served to show just much is lost in translation when trying to cram a complex disagreement into a typical news story. I felt like the more I read about the case, the less I knew. I just kept zooming in on the fractal, trying to find the final level of detail that would give me some kind of handle on the thing. I’ve put in several days of work in trying to write this series, but I’m still doubtful I’ve gotten all the facts exactly right. I’ve done what I could, but there are limits to what I can accomplish with the limited information and expertise available to me.

One final note is that doing this research has helped me to understand the Zenimax position a little better. I was pretty firmly against them based on what I’d read after the verdict, but now that I’ve read the details I find their position less objectionable. I wouldn’t go so far as to say I’d side with them in the disagreement, but their arguments now make a lot more sense.

Except for their arguments on source code. Their arguments on source code would be hilarious if they weren’t infuriating. But we’ll talk about that later.

John Carmack

tdi_vr1.jpg


I’ve been pretty public about my professional admiration for John Carmack, former head programmer of id Software. He was the creative force behind the technology that drove the various incarnations of DOOM and Quake. He’s not as big a force these days, but only because the technology has grown to the point that no one person can single-handedly exert industry-wide pressure the way Carmack did in the 90s. In a field this big, it was pretty amazing that one person was able to stay so far ahead of so many rivals for so long. His technology wasn’t the only thing that made their games a success – id Software had lots of other brilliant creative people in their ranks – but there’s no denying his graphics engines were pushing the limits of the medium, selling faster computers, and making id Software an industry darling among both fans and critics.

Back in 2009, Zenimax bought id Software. In the deal they got the stuff they were interested in: Some trademarks, a back catalog of classic games, and some technology. But as they were unpacking the cardboard boxes of intellectual property and trying to figure out what the hell a Commander Keen was, they realized they’d gotten something else along with the deal: A middle-aged genius software inventor with a resume that makes him sound like the Thomas Edison of videogames.

“But Shamus! Edison wasn’t as great an inventor as people give him credit for. He just made commercial versions of a lot of ideas that were already floating around the scientific world. Also, Tesla was way cooler!”

tdi_doom_e1m1.jpg


The comparison is more apt than you might realize. A lot of Carmack’s greatest accomplishments were built on tricks and ideas that mathematicians had been playing around with for years. Carmack didn’t invent binary space partitioning, a key component of the DOOM engine. That idea had been around since the late 60s. Carmack was just the first person to make it work on then-modern hardware and figure out how it could be used to make a game.(And then make it really fast.)

Although there is one really important difference between Edison and Carmack: Edison had over 1,000 patents to his name, while Carmack is a big believer in the hacker ethic, which takes a dim view on efforts to “own” and control ideas using things like patents.

Like Carmack’s previous bosses, nobody at Zenimax was really sure what to do with him. You can’t make him invent something, after all. Still, better to employ him than to have him go work for a rival company. Also, he still had the ears of hardcore graphics nerds, and thus he had some sway with hardware manufacturers, and that’s never a bad thing to have around the office. It’s not clear if they gave him specific work to do, but they did allow him to spend at least some of his time on his own projects.

Apparently what Carmack really wanted to be working on was Virtual Reality. There wasn’t a lot of really interesting breakthrough work to be done making graphics engines in 2009. If you magically invented some clever technique that doubled graphics performance, what would that get you? Visually, that’s maybe the difference between running Crysis on “high” graphics settings and running the game on “ultra”. That’s nice, but that’s not the sort of jaw-dropping revolution like DOOM or Quake brought to the industry. Those old games made people say things like, “I never knew this was possible!” But at this point in the tech tree the innovations were limited to stuff like smoothing the edges off of jaggy pixels and adding another lighting pass. That makes people say things like, “Yeah. That does look a little nicer” as they squint at the screen. It’s just not the same.

Which means it’s really hard to impress people these days. Games look pretty good already and even a huge gain in performance will result in small gains in visual quality. But VR? That was one area where you still might be able to blow some minds.

The Long Troubled Evolution of VR



People had been “working on” VR for decades. It’s tough to pinpoint where it all started because the early definition of VR was pretty muddled. To someone in the 1970s, any modern first-person game would qualify as “VR”. In 1978 MIT created Aspen Movie Map, which involved taking photographs of Aspen Colorado and allowing the user to navigate through them. That qualified as VR by the standards of the day, but it was more like a precursor to Google Street View.

Eventually people settled on the idea that “VR” would mean using a computer to render an enveloping 3D environment, with distinct views created for each eye to create a sense of depth perception. We tried it in the 80s, but the CRT based displays of the day were heavy, flickering, and hampered by heavy cables. It was basically the last part of the computer you’d want to strap to your face.

By the time Carmack stepped up to the plate, VR had been “five years away” for a quarter century. People would build VR headsets, realize the problem was harder to solve than they first anticipated, and the effort would die. Then we’d get a fresh round of breakthroughs in rendering, displays, and circuit miniaturization, and people would take another crack at it. Eventually people would run into a new hurdle and it would die again.



It turns out VR is a really hard problem to solve. You need extremely high resolution screens, because once they’re strapped to your face those tiny pixels are going to look gigantic and blocky. You also need excellent refresh speeds[3]. But you also need the screens to be small and lightweight because they’re hanging off the front of your face. Also, you don’t want a heavy bundle of cables tugging on your head, so the device can’t use too much power. And the device needs to be cheap enough for the average consumer.

So we need screens that are high-definition and lightweight and small and power efficient and cheap? Good luck with that.

Oh, and that’s just what we need for the screens. We have to overcome similar challenges with lenses, rendering technology, processing power, user input, and head tracking. Everything needed to be custom-made, cutting-edge, small, and yet somehow still remain cheap enough for middle-class consumers.

In 2012 Carmack thought the technology was close enough for another go. He began working on his own headset in the mad scientist wing of the Zenimax basement labyrinth[4]. As part of the project he was also reading various enthusiast sites to see what everyone else was doing. The hacker ethic is strong in groups like this, and it mostly boils down to a bunch of engineers hammering away at a problem, comparing notes, and maybe occasionally smugly showing off when someone gets a breakthrough. At this point Carmack discovered then-20 year old Palmer Luckey, who had cobbled together a headset from consumer parts.

Next time we’ll talk about the technology they built together.
 

Infinitron

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Zenimax vs. Facebook Part 2: The 5 Problems Of VR
splash_zenimax_vs_facebook.jpg

Disclaimer: Like I said at the start of this series, I am not a lawyer. This is a complicated case and I am not an expert on the law, VR, or corporate contracts. I’m working with incomplete records of complex events where there was often more than two sides to every story. I’ve done what I could to be accurate, but series is intended as opinion and commentary, not authoritative historical record.

VR is a strange thing. For people who haven’t tried it, it’s natural to assume this is just another technological advance like plasma screens or surround sound. They think this is just the next step up in fidelity.

This is not the case. VR is as different from looking at a screen as a screen is different from a radio. VR engages parts of the brain that aren’t really involved or excited by traditional screen experiences.

Presence


tdi_vr7.jpg



A notable example is one that Valve was offering in its VR labs in 2014. In the demo, the user would find themselves standing on a narrow stone platform floating in a vast open space. The space wasn’t even designed to look real. The skybox was comprised of old webpages. The platform texture looked like something out of Half-Life 2. If you looked at this on a traditional screen it would be incredibly boring. It looks like “Baby’s First Game Level”. It’s cheap and dull and you wouldn’t give it a second look.

But in VR this stupid box room can be a visceral experience. If you’re at all nervous around heights then you’ll probably catch your breath, feel your knees lock up, and have an intense desire to grab onto something solid. You know you’re in a VR lab and you know it’s just a simulation, but the input reaches deep down and tickles the atavistic parts of your brain. You can see a similar idea at work in the Fear of Heights VR demo. While FoH makes for a better demo to watch, I think the Valve demo makes the more dramatic case for VR, since it accomplishes the same effect using only rudimentary visuals. It manages to convince you using unconvincing graphics, thus driving home just how different it is from traditional screen experiences.

This feeling of “being there” is called presence, and it’s only possible in VR. This effect isn’t a novelty. It persists, even in people who use VR regularly.

This is good, because it makes VR an amazing product with new possibilities. But it’s also bad, because it’s very difficult to make people understand how different it is. You can’t just show it on television or have them download a demo. If you want someone to understand how amazing VR is, then you need to stick a VR headset on their noggin and stand back.

In April of 2012 John Carmack reached out to Oculus and asked if he could try their prototype, called the Rift. Palmer Luckey – being a fan – sent him one. It was one of only two prototypes in existence. It’s entirely possible this was the best VR headset in the world.

The Rift was good, but like so many times during the evolution of VR, this breakthrough only revealed that the VR was a little more complicated and challenging than everyone anticipated. There were several problems that would need to be solved before VR would be ready for the world.

Problem #1: Field of View


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The whole point of VR is to envelop you in a virtual world, which means the scenery needs to fill as much of your field of view as possible. You might notice that bringing up a photograph of a relaxing mountain scene on your mobile phone and mashing your face against the screen does not produce the desired effect. You can’t comfortably focus on things that close to your eyes, and even if you could it would ruin the sense of depth and being enveloped in the virtual world.

This problem is easy to fix with lenses, assuming you don’t mind cutting off the user’s field of view. You can create something that’s basically a View Master. You’ll have a comfortable view of things that appear to be in the distance, but you’ll have the same field of view of someone looking through binoculars. The drawback is that this pretty much ruins any sense of presence.

Programmer Michael Abrash gave a presentation at Steam Dev Days in 2014, talking about this exact problem. He pointed out that if you wanted to properly bend a rendered image to fill the user’s field of view, it would require a complex chain of nine precise lenses, the largest of which would be over a foot in diameter. That’s obviously not the sort of thing you can comfortably wear on your face.



tdi_vr5.jpg



Of course, that’s what you get if you want a perfect, undistorted image delivered to the eye. Palmer Luckey experimented with different lens arrangements and came up with a system that allowed the image fill the user’s view using only two sets of lenses. The lenses were reasonably small and lightweight and could fit within the expected volume of a VR headset.

The problem with this solution is that bending an image that aggressively will inevitably cause distortions. When wearing the Rift prototype, the users would see the world as if through a fisheye lens[1].

Once he was able to try the headset for himself, Carmack was able to solve this problem on the software side. If the lenses create a fisheye effect, you can negate this by simply[2] creating an image with the opposite distortion so that it is “corrected” after passing through the lens.

Problem #2: Chromatic Aberration


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Unfortunately, the strong lenses have other side effects. Different wavelengths of light bend at different angles. Which means that while wearing the headset, the user will see the various color ranges appear displaced from one another. By coincidence, this looks sort of like stereoscopic images created using the red/blue anaglyph system in old 3D movies. But the two things are actually unrelated. In fact, in an anaglyph 3D image the color separation is required for the effect to work, while in VR the color separation kind of ruins it[3].

Again, the solution seems to be to correct for the lens behavior in software. You can have the software render the image with the color ranges displaced in the opposite direction, so that after passing through the lens they will be properly re-combined into the final whole.

This explains why VR screenshots always have those strange blurry color auras around them, even though people wearing VR headsets don’t see that effect.

Problem #3: Head Tracking


tdi_vr10.jpg



I owned a Devkit 2, the second-generation headset from Oculus. The original Rift didn’t have positional head tracking. If you turned your head, the virtual view would turn as expected. But if you moved your head to the side then the world would feel like it was moving with you, as if the whole world was strapped to your face. (Because, you know, it was.)

With my Devkit 2, occasionally I’d move outside of the active area for head tracking and it would stop working. This gave me a few seconds to experience what the original Rift must have been like. The moment this happened, it would instantly bring waves of VR sickness.

What does VR sickness feel like? It’s a bit like a headache. It’s also a bit like being dizzy, with maybe a bit of nausea. It feels kind of like all of those things, but it really is a distinct sensation. Regardless of how you describe the sensation, it feels terrible.

Worse, VR sickness can linger. You might start to feel a little uncomfortable in the simulation, so you take the headset off. But the problem doesn’t vanish immediately. If you continue to engage even after symptoms begin, the VR sickness might hang around for hours. It depends on the person.

In any case, head tracking is a key component of avoiding VR sickness. While everyone has different tolerances for VR and experiences differing levels of VR discomfort, I think Devkit 2 – the version of the Rift with head tracking – represented the Minimum viable product for VR. It had just enough technology to deliver on the basic premise of “being there” and giving that sense of presence. While a small minority of people can enjoy VR without head tracking, the vast majority of us need it to avoid sickness.

Problem #4: Latency


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Imagine you’re wearing a VR headset that, for some reason, is only rendering things at one frame a second[4]. You’re looking directly ahead at a virtual lamppost or some other landmark. Then you turn your head to the left. Because you’ve got such a horrible framerate, the display doesn’t update as you move your head. Instead, the lamppost remains in the center of the screen, which means that it will appear to “come with you”, always hovering directly in front of your eyes. (This will probably cause the VR sickness I mentioned above.) Then finally the rendering catches up. The headset updates, and the lamppost is suddenly on the right side of your field of view, where it should be. To someone wearing the headset, it feels like the lamppost floated to the left and then abruptly jumped over to the right.

As you improve framerate this effect will diminish, but it’s very hard to get it to go away entirely. Even at 60fps, it means the lamppost will float to the left for 16 milliseconds and then appear to jump a tiny bit to the right as the display catches up. To someone wearing the headset, it feels like the lamppost is sort of “vibrating” as they turn their head side-to-side. This effect is called judder, and it’s hard to get rid of.

You might think that this problem can be solved by buying a faster graphics card or rendering simpler scenes, but that’s not the case. Better graphics cards get us more throughput, but we need better (lower) latency.



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Let’s say Bob Nvidia is running a shipping company. His trucks can deliver me 1,000 packages by next week. Pretty soon he upgrades his fleet and now he can deliver 2,000 packages a week. A year after that, he can deliver 4,000 packages in a week.

Now imagine I don’t necessarily need a lot of packages, but I need them tomorrow. That’s the latency problem. The system is optimized for volume and now we’re trying to do something faster than anyone would have thought was reasonable when the system was designed. In 2012, most graphics cards, graphics drivers, display screens, and games had been designed under the assumption that the user wouldn’t have any use for more than sixty frames per second.

I’m 45 years old. When I was younger I could really tell the difference between 30fps and 60fps. But at this age the difference is pretty slight and I often don’t notice. As long as it’s consistent, I’m fine. But even my worn-out eyeballs are sensitive to framerate in VR. 30fps suffers from horrible judder that makes me want to slam my eyes closed when I turn my head. I would say that 60fps is basically tolerable, but only if I’m playing something slow-paced. For an action game, I’d probably want something closer to 90 or even 120fps.

To get the latency down to something comfortable, Carmack had to dig down in the rendering layer, look for bottlenecks, and then figure out ways to get around them. The raw power (in throughput) was there, but since there wasn’t previously a demand for extremely low latency rendering almost nobody had paid attention to this stuff until now.

Problem #5: Center of Projection


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According to the Zenimax complaint, there was a fifth problem that Carmack solved, which was the “center of projection” problem. This could mean a lot of things and I’m not sure what they’re talking about specifically. I’m sure this has something to do with how to position and orient the user’s virtual eyes within the simulation.

The software needs to render two different views – one for each eye. You can think of their virtual eyes as a pair of cameras floating around the world. If you aim both cameras in exactly the same direction then the 3D effect won’t quite work as expected. You won’t get the feeling of close objects floating right in front of your face. To get that, you need to angle the cameras inward – to make them slightly cross-eyed as it were – to make objects “pop”. But hang on – isn’t that something that, in the real world, they do with their own eyes? If we render a cross-eyed view and then they cross their eyes to look at it, won’t that be… wrong? But we can’t cross their eyes for them and we can’t track where their eyeballs are looking, so how do we know where to put the cameras? Hm.

This is complicated stuff and there aren’t necessarily obvious answers. I wasn’t aware that Carmack made any particular breakthrough in this area. I’m not really disputing this claim. I’m just saying that I can’t nail down what specific advance they might be talking about in this instance.



engineering_joke.jpg



I said above that Carmack solved these problems, but in truth it’s not at all clear who did the solving, which is important because that’s basically what this case is all about. Zenimax is trying to make the case that once Carmack had his hands on the prototype, all further advancements were his work alone.

But this was a collaboration between a hardware engineer and a programmer regarding a product that requires perfect integration of hardware and software. It would be a pretty big stretch to give either party credit for the whole thing.

For example, Luckey was certainly aware of problems #1, #2, and #3. Possibly he envisioned the solution himself, but lacked the coding expertise to realize it. In which case, Luckey was the “inventor” and Carmack was simply the engineer who followed the blueprint. Carmack’s contibutions were no doubt significant, but it’s tough to prove he did any particular thing aside from write code. And since he now works for Oculus, Zenimax probably isn’t interested in asking either Palmer Luckey or John Carmack who did the heavy lifting when it comes to new ideas.

On the other hand, innovation #4 is most certainly Carmack’s work. There probably aren’t many people in the world more uniquely qualified to optimize a rendering pipeline for low latency. Carmack even did some original research a few years earlier during the development of Quake Live, trying to figure out just where all the processor cycles went between the moment the user pushes a button and the moment the result shows up on screen.

This brings us to the details of the Zenimax complaint. We’ll get into that next time.
 

Infinitron

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Zenimax vs. Facebook Part 3: History and Context
splash_zenimax_vs_facebook.jpg


Palmer Luckey sent the Oculus Rift prototype to John Carmack in April 2012, and Carmack made improvements to it as I detailed last week.

Disclaimer: Like I said at the start of this series, I am not a lawyer. This is a complicated case and I am not an expert on the law, VR, or corporate contracts. I’m working with incomplete records of complex events where there was often more than two sides to every story. I’ve done what I could to be accurate, but series is intended as opinion commentary, not authoritative historical record.

In May, Zenimax had Luckey sign an NDA. This was probably the fatal mistake in the entire process. While I object to the entire premise of the Zenimax arguments regarding code, most of this case seems to turn on the NDA, and Oculus was probably doomed the moment Luckey put his signature on the thing.


Non Disclosure Disagreement


stock_contract.jpg



When speaking of the NDA, Zenimax stated:

[…] Mr. Luckey acknowledged in writing Zenimax’s legal ownership of this intellectual property. It was further agreed that Mr. Luckey would not disclose this technology to third persons without approval.

An NDA is typically used in a situation where A wants to share information with B, but they need to make sure B doesn’t tell anyone else. In this case Zenimax wanted to assert their ownership of all the stuff Carmack was inventing. I haven’t read the NDA in full, but some relevant parts are quoted in the complaint against Oculus. The NDA applied to all information related to the technology, written or otherwise, whether it was marked confidential or not. Which means that basically every single time Carmack and Luckey talked about VR, Luckey was bound to keep the contents of the conversation private. He was allowed to tell people within his own company, but only on a need-to-know basis and only in pursuit of developing this product.

I can’t get the full text of the NDA (and I’d probably struggle to fully understand it anyway) but I’m betting the poison pill was this one:

(iv) Not use any Proprietary Information to compete or obtain any competitive or other advantage with respect to the Disclosing Party.

Basically, “We own all the stuff that Carmack says. You’re allowed to know it, but if you ever use it to compete with us you’ll be in violation of this agreement.”

I don’t know if this is a particularly strongly worded contract by the standards of this sort of thing. (The NDAs I’ve dealt with were with smaller companies and covered short-term projects rather than ongoing R&D.) But it really does seem like it firmly traps Luckey. It shackles his company to Zenimax by saying that everything that Carmack says or does to improve the Rift is owned by Zenimax and Luckey is never allowed to use it to compete with Zenimax.

If another company came along and wanted to license the Rift, Luckey wouldn’t be able to do that without somehow removing all of the improvements that Carmack had made – even if they were offhand suggestions made over a beer!

It’s clear from this and their later actions that Zenimax was working very hard to gain control over Oculus from the beginning. That makes sense. Engineers love to collaborate, but companies do not. Particularly when one of them is a multi-billion dollar global and the other is a garage operation in Long Beach.

I say Luckey was trapped because if Microsoft had come along and offered Oculus a pile of money to put the Rift on the Xbox, I don’t see how he could have done it. How could he not use Carmack’s advances? Even if Luckey were to split from John Carmack and hire Engineer Bob, and even if Engineer Bob were to come up with the exact same ideas, Zenimax would still be able to drag him into court and say he was using Carmack’s ideas to compete with them.

To avoid a lawsuit, Luckey would need explicit permission from Zenimax, and they could simply withhold that permission unless Luckey gave them what they really wanted, which was equity in Oculus. Note that there wasn’t a reciprocal NDA. Luckey didn’t try to lock down his contributions to the device and restrict what Zenimax could do with it. Carmack and Luckey were collaborating on this device, both were indispensable to its creation, and neither one was interested in playing tag with the Zenimax legal team.

My decidedly non-expert opinion is that Palmer was unwise to sign this NDA in the first place. Maybe he saw it like a trivial formality required to work with Carmack and didn’t really think about how it might come back to bite him later[1]. It’s possible he viewed it was a simple promise to keep company secrets and wasn’t thinking about the eventual business ramifications down the road. Then again, I probably would have signed it too. I get to work with John Carmack and invent the future? Hand me a pen.

Seriously, if a lawyer casually hands you an NDA and a pen, take it seriously. I know he’s a nice guy, and everyone is keen to get on with the meeting, and we’re all friends here, but… no. You’re not actually friends. Not all lawyers are dangerous, but you can’t tell by handshake which ones are earnest and which ones are predators. (Or more accurately, which ones are employed by predators.) You’re giving someone a lot of power – and giving up some freedom – when you sign an agreement like this.


Even if the agreement doesn’t seem hard to follow, you’re still taking on some non-zero risk. Even if you comply fully, if you’re dealing with a stronger party (like, maybe you’re just one person and they’re a multibillion dollar corporation) remember that they will now have a lever to use against you. If you piss them off later they can drag you into court over some nitpicky detail and force you to waste your time and money defending yourself.

I’m not saying you should never sign an agreement. (Nobody would ever get anything done if that was the case.) I’m just saying that you should take a contract seriously, even if everyone is smiling and insisting it’s all “just a formality”. Stuff like this can come back to haunt you years later. Read it, think about it, and ask questions.



tdi_vr2.jpg



In June, Carmack demonstrated the Rift at E3. He had a special build of Doom 3 that was designed to support the Rift, and people were able to try the headset on. This was probably the first public demo of modern VR as we know it. The VR of generations past had failed, but this one seemed to be gaining traction instead of vanishing in a puff of disappointment and VR sickness. The buzz began to build, and people began wondering if VR might happen for real this time around.

I’m going to be quoting from a court document dated August 2015. This was after Zenimax had filed their lawsuit, which made six different complaints against Oculus[2]. Oculus filed for a dismissal of the whole thing over various nitpicky details, as you do in these things. The judge rejected this dismissal (which is why the case went to trial) and I’m going to be quoting from the court order where the judge denied the dismissal. It’s got a lot of the relevant info in one relatively small document, which is ideal for my purposes. You can read the full text here, if that’s how you want to spend your time.

Luckey’s objective was to develop and promote the Rift as a commercially-viable VR headset. To that end, ZeniMax sent Luckey proprietary information on an ongoing basis. Throughout June 2012, Luckey continually emailed ZeniMax seeking and receiving access to ZeniMax’s “proprietary information, trade secrets, and know-how.” For example, ZeniMax sent Luckey software that permitted him to install customized firmware “onto the sensors that ZeniMax selected for the Rift.” Additionally, Luckey received “binary code for the tracking sensors that Carmack had added to the Rift.” Moreover, ZeniMax sent Luckey hardware to use in the Rift, including “cables,” “customized sensors,” as well as improvements to the Rift’s “optics calibration and sensor mounting.”

I love how this wording makes it sound like ZeniMax Media Inc., the corporation with $2.5 billion in assets, was personally emailing Palmer Luckey and sending him spare cables. I mean, from a legal sense this is true. John Carmack did all of these things and he did them in his capacity as an employee of Zenimax. But both sides have made it pretty clear Carmack was doing pretty much as he pleased. It’s not like the officers of the company got together for a board meeting to work out if they should send Luckey the new motion sensors this week, or wait until they had enough items to qualify for Amazon free shipping.

This is how legal documents are worded, of course. It just sounds funny when you’re not used to it.

It’s also really obvious how they’ve worded this so it sounds like Carmack is the only one doing any work. They only mention information and equipment flowing from Carmack to Luckey, and nothing going the other way – as if the inventor of the original device had nothing to contribute. I suppose it makes sense they would present it this way. They’re basing their arguments on the premise that Carmack invented all of the crucial stuff.



tdi_vr12.jpg



However, this constant communication does kind of undercut the Zenimax claim a little. There was evidently a lot of communication back and forth between these two, which wouldn’t be warranted if Carmack ran off and invented everything all by himself once he obtained the prototype. This looks more like two people working together to solve a problem.

Right after E3, Luckey began working on a Kickstarter campaign for the Rift. He asked Carmack to help him make the pitch video. (Although apparently Carmack didn’t actually make any additional footage for the video. All of his appearances in the pitch are recycled from his E3 demo.)

According to court documents, at this point ZeniMax proposed that the parties enter a formal agreement. It doesn’t say who they mean by “parties”, and it doesn’t say what sort of agreement. I’m extrapolating here, but I’m willing to bet this agreement wasn’t a proposal that they should all split a pizza. It was probably an effort on the part of Zenimax to get a stake in the nascent Oculus. It was clear at this point that despite the failure of VR in the past, this time it might really be happening and Zenimax probably thought it was perfectly reasonable that they – as the employer of one of the two key engineers on the project – should be running the show.

But aside from paying Carmack a salary, what did Zenimax have to offer them? Speaking as an engineer myself, the last thing I’d want is to place my potentially blockbuster invention in the hands of a corporation two billion dollars above my weight class. If you do that, the whole thing could wind up entangled in patents and exclusive agreements. If you’re an engineer you probably want to make a product the world will love, not one to make your employer rich. You’re not going to take a buyout offer unless you absolutely need the money to proceed.

Zenimax had no technology or expertise to offer these two. The only thing they had was Carmack’s employment contract. They didn’t really own him or his ideas. They could fire him, but he’s been independently wealthy since the early 90s and his reputation means he can find a job almost anywhere. They had no leverage over him whatsoever.

If you’ll allow to to project my own personality and tendencies onto the two engineers: They were probably simply pursuing their immediate goals: “Let’s invent the cool thing we’ve always dreamed of.” From their point of view, they signed the stupid NDA to placate the legal department and from here on they just wanted to be left alone to build the future.

Back to the judge’s order:

As part of its fundraising campaign, Luckey requested that Carmack promote the Rift in a keynote speech he was scheduled to give at QuakeCon and to put together a promotional “cameo or blurb” on a video he planned use as part of his Kickstarter pitch. In response, ZeniMax proposed that the parties entered a formal agreement. Luckey “ignored” this suggestion, but continued to ask ZeniMax for proprietary information — which for unknown reasons ZeniMax continued to provide.

“Which for unknown reasons ZeniMax continued to provide,” is a really funny phrase. We kept doing it and we don’t know why! It makes it sound like the company has some sort of multiple-personality disorder. (Which, to be fair, is true of every company with more than one employee.) In any case, it’s not “unknown reasons”. It’s for the reason of, “John Carmack was working with another engineer to invent something groundbreaking and neither of them felt inclined to get the Zenimax legal department involved every time the device needed a stupid HDMI jack or USB extension cord.”

Also, the phrasing here suggests that Zenimax was trying to be reasonable and enter into a formal agreement and Luckey was ignoring them for no good reason. But in their public statements it’s clear that they were asking for an ownership stake. What possible reason would Luckey have for handing over his company? All they were offering him was help that Carmack was already giving him for free. Well, they might have also be offering money. I mean, I hope they were. Still, it’s entirely possible that Luckey was “ignoring” an insulting lowball offer. Zenimax said in a public statement:

“It was only through the concerted efforts of Mr. Carmack, using technology developed over many years at, and owned by, ZeniMax, that [Oculus founder] Mr. Luckey was able to transform his garage-based pipe dream into a working reality.”

I’m hoping this is just the typical public posturing you get in cases like this and not an honest expression of how Zenimax viewed the Rift. If this is really how they saw the situation, then there was little wonder the two sides were never able to reach an agreement. Zenimax apparently thought all the important breakthroughs came from their guy and Luckey’s contributions had little value. If this is the case, then a lot of the problems here are due to the fact that Zenimax showed up with not enough zeroes on their buyout offer.

Or maybe Luckey just wasn’t selling. It’s impossible to know from these court documents.

While the NDA was the fatal move that gave Zenimax leverage over Oculus, this point in the process is probably the fatal moment when conflict became inevitable. Zenimax was employing a world-famous engineer who was apparently helping to invent a device that could change the industry[3] and they somehow weren’t getting a cut. Under normal circumstances an employer might just threaten to fire you, but you don’t want to fire John Carmack without a really good reason.

In hindsight, Carmack probably should have left Zenimax at this point. But that would mean leaving the company he founded[4] 20 years earlier. And Zenimax would probably rather have him sitting in their office doing nothing at all rather than letting him work for a rival. So while it was in their short-term advantage for Carmack to stick around, it was only adding to this ongoing tension between these three parties over who should ultimately own the Rift. The longer he hung around, the easier it would be for Zenimax to come up with ways to lay claim to it.

Nobody could make a deal, so the engineers just “ignored” the offers from Zenimax and went back to the workshop.



tdi_vr13.jpg



The Oculus Kickstarter launched on August 1, 2012. That was one day before QuakeCon, which ran from August 2 to August 5. Luckey’s funding goal was $250,000, but by the end of the campaign it managed to raise almost ten times that.

More from the judge’s order:

In late August and early September 2012, ZeniMax made “multiple requests” to Oculus to discuss “compensation for ZeniMax’s role in developing and promoting the Rift.” On September 21, 2012, Oculus forwarded ZeniMax a proposal “designed to kick off a formal discussion” of the parties’ future relationship. No agreement was reached and Zeni-Max finally ceased to provide proprietary information or technological assistance to Oculus.

This is a very interesting gem of information. To me it sounds like Carmack had been freely collaborating with Oculus. It’s pretty hard to claim someone is “stealing” your proprietary secrets if your employees are simply giving them away from free. If I post on Stack Overflow asking “How can I speed up VR rendering to reduce judder?” and Carmack replies with a couple of obscure techniques to cut down on latency, Zenimax can’t sue me later for “stealing” their secrets. They might be able to take some kind of action against Carmack (they could at least fire him) but that doesn’t really help their cause. They wanted in on this VR action, and firing Carmack would simply cut them off from it completely. Heck, if Carmack was trapped in an employment contract[5] then he’d probably love to get fired.

At this point, they apparently were finally able to persuade him to stop collaborating with Luckey. The problem is that Carmack’s employment contract wasn’t up until June 23. Maybe Carmack continued to work on VR in the intervening time, but he was no longer sharing with Oculus.



tdi_dumped.jpg



Almost exactly a year later in August of 2013, John Carmack joined Oculus as chief technology officer. But he was also still working at Zenimax. This is roughly like when your significant other tells you that while they think their relationship with you is still the most important thing in their life, they’ve also begun dating other people. Sure enough, a few months later in November of 2013 Carmack left Zenimax to work at Oculus full-time, promising that they could still be good friends if Zenimax wanted.

Returning to the judge’s order:

On March 25, 2014, Facebook announced a planned acquisition of Oculus for $2 billion in cash and stock. At the time of the acquisition, Facebook knew, or had reason to know that Oculus’s representation — that it had titled, owned, or was authorized to use the intellectual property necessary to carry on its business — was false. On July 21, 2014, Facebook closed its acquisition of Oculus, despite Facebook’s knowledge of Plaintiffs’ claims against Oculus and Luckey. Facebook’s purpose in acquiring Oculus was for the financial benefit of its core business of online social networking and advertising.

Zenimax makes the claim that buying Oculus was to benefit Facebook’s “core” business, which is pretty hilarious. It’s always been something of a joke that Facebook had no clear indication of how owning VR would benefit its web-based business model. Even three years later, it’s still not clear. This doesn’t really undercut the Zenimax case, but it is an amusing claim. It’s like someone saying, “New Coke is crucial to the ongoing success of the Coca-Cola company.”

So that’s the relevant history. Next time I’ll get into my analysis.
 

WhiteGuts

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ZeniMax might also be suing Samsung over VR. I'm sure antagonizing the whole industry is the way to go.
 

Infinitron

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ZeniMax might also be suing Samsung over VR. I'm sure antagonizing the whole industry is the way to go.

http://www.pcgamer.com/zenimax-sues-samsung-over-oculus-derived-gear-vr-headset/

ZeniMax sues Samsung over Oculus-derived Gear VR headset
The lawsuit claims the Gear headset infringes its property rights in the same way as the Oculus Rift.

ZeniMax did pretty well for itself in its lawsuit against Oculus VR, winning $500 million as a result of Palmer Luckey's violation of the non-disclosure agreement he signed prior to working on the Oculus Rift headset with ZeniMax, and specifically John Carmack, who was CTO of id Software at the time. Following the victory, ZeniMax chairman and CEO Robert Altman said the company would "consider what further steps we need to take to ensure there will be no ongoing use of our misappropriated technology."

Which leads us to round two: As reported by Polygon, ZeniMax has filed a new lawsuit against Samsung, maker of the Gear VR, which the suit alleges is "based upon ZeniMax's intellectual property and includes information obtained by Samsung from Oculus, Luckey, and Carmack in violation of the NDA, ZeniMax's copyrights, and Carmack's employment agreement."

Much of the suit's basis rests in facts established in the Oculus action, but it also relates a very interesting story of an "attack plan" formulated by Carmack and Matt Hooper, a former id Software designer who joined Oculus VR shortly after Carmack.

"On July 31, 2013, Carmack brought a former ZeniMax employee and friend, Matt Hooper ('Hooper'), who had been fired by ZeniMax, back into id Software's offices after hours to 'talk about Oculus.' Carmack was aware of the comprehensive security measures ZeniMax had to protect the confidentiality of its intellectual property, security measures Carmack knowingly and intentional violated," the suit says.

"After providing Hooper access to the locked premises, Carmack left Hooper unattended, free to examine ZeniMax confidential materials, at which point Hooper went alone into offices where ZeniMax maintained and stored confidential information. Later that night, Hooper emailed his contacts at Oculus disclosing that he and Carmack formulated an 'attack plan' for the mobile VR work that they would undertake together at Oculus, and which Oculus would subsequently provide to Samsung."

From there, it's a short step to essentially the same argument that ZeniMax made in the lawsuit against Oculus. "In creating the Samsung Gear VR, Carmack and Oculus used the VR code and proprietary techniques that Carmack had developed while employed at ZeniMax, and which were ZeniMax's exclusively owned intellectual property," the suit states. "Carmack confirmed this in later sworn testimony, when he admitted that he merely 'reimplemented' the same copyrighted code he had created while an employee of ZeniMax when he created the Oculus VR software used in the Samsung Gear VR."

The lawsuit makes for an unusual, and potentially very interesting, situation. Samsung is a legitimate heavyweight, and can bring far more resources to bear on a legal fight than Oculus could ever dream of. But the precedent established by the previous lawsuit puts it in a very difficult situation: There is, as far as I know, no question that the Gear VR is derived from the Oculus Rift, so if the Rift has already been found to infringe upon ZeniMax's intellectual property, then my inclination would be to mumble something about "fruit of the poisonous tree" and make the Law & Order noise as I head for the door.

Of course, it's not necessarily a done deal: Oculus has filed an appeal of the verdict against it, and Carmack has brought his own $22.5 million lawsuit against ZeniMax for money owed as a result of the id Software acquisition, which isn't really related but could presumably complicate things.

ZeniMax has demanded a jury trial in its suit against Samsung, and is seeking damages of various sorts, profits arising from the sale of the infringing properties, royalties, punitive damages, court costs, and so forth.
 

Dexter

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People had been “working on” VR for decades. It’s tough to pinpoint where it all started because the early definition of VR was pretty muddled. To someone in the 1970s, any modern first-person game would qualify as “VR”. In 1978 MIT created Aspen Movie Map, which involved taking photographs of Aspen Colorado and allowing the user to navigate through them. That qualified as VR by the standards of the day, but it was more like a precursor to Google Street View.
This is wrong, "VR" was rather well defined and even demonstrated back then too: https://en.wikipedia.org/wiki/The_Sword_of_Damocles_(virtual_reality)
http://www.rpgcodex.net/forums/index.php?threads/oculus-rift.79590/page-10#post-4022735

By the time Carmack stepped up to the plate, VR had been “five years away” for a quarter century. People would build VR headsets, realize the problem was harder to solve than they first anticipated, and the effort would die.
I don't know if him "stepping up to the plate" is the right choice of words here, at the point he was just experimenting around with it in his office Palmer had already planned a KickStarter for the Rift (that would have probably fizzled out with a few dozen or hundred people buying one) and had people design his company logo and shit, afaik the prototype Carmack showed at E3 2012 was something Luckey gave him that he improved a bit with duct tape and shit and did a bit of programming to make it run with DOOM 3, the main thing he did is increase the Hype about VR and show it off to the tech press as a "credible industry figure":


It turns out VR is a really hard problem to solve. You need extremely high resolution screens, because once they’re strapped to your face those tiny pixels are going to look gigantic and blocky. You also need excellent refresh speeds[3]. But you also need the screens to be small and lightweight because they’re hanging off the front of your face. Also, you don’t want a heavy bundle of cables tugging on your head, so the device can’t use too much power. And the device needs to be cheap enough for the average consumer.

So we need screens that are high-definition and lightweight and small and power efficient and cheap? Good luck with that.

Oh, and that’s just what we need for the screens. We have to overcome similar challenges with lenses, rendering technology, processing power, user input, and head tracking. Everything needed to be custom-made, cutting-edge, small, and yet somehow still remain cheap enough for middle-class consumers.
Most of this is basically solved or about to be solved, the biggest problem is getting the price down and engagement up.

In April of 2012 John Carmack reached out to Oculus and asked if he could try their prototype, called the Rift. Palmer Luckey – being a fan – sent him one. It was one of only two prototypes in existence. It’s entirely possible this was the best VR headset in the world.
That is the one Carmack showed off in June 2012 at E3 as in the video above, what he gets wrong is "Oculus" didn't exist as a company yet at this point, it was just Palmer, some guy from enthusiast forum MTBS3D who wanted to start a Virtual Reality KickStarter, here's the thread that started it all, this is also the site that he got into contact with Carmack on:
Introduction Aug 2009: http://www.mtbs3d.com/phpbb/viewtopic.php?f=120&t=4123
Talks about a VR HMD "better than anything else on the consumer market" Sep 2011 (before being in contact with Carmack, since he actually saw that post and asked if he could try it afaik): http://www.mtbs3d.com/phpBB/viewtopic.php?f=120&t=13745
KickStarter Oculus "Rift" thread Apr 2012: http://www.mtbs3d.com/phpBB/viewtopic.php?f=140&t=14777


Problem #1: Field of View
They didn't actually change very much about the Field of View from the early prototypes before Carmack and the one he showed off at E3 2012, the problem with making the FoV bigger with wider lens distortions is that you need to measure the picture you see in VR in pixel per degree, the higher the FoV degree, the lower the perceived resolution in the most important/visible parts of the picture. FoV and visible resolution have an inverse relationship to one another.

While a small minority of people can enjoy VR without head tracking, the vast majority of us need it to avoid sickness.
This is categorically untrue, although it does help.

There's a talk Abrash did on the still remaining technological problems for VR in 2015:


In 2012, most graphics cards, graphics drivers, display screens, and games had been designed under the assumption that the user wouldn’t have any use for more than sixty frames per second.

I’m 45 years old. When I was younger I could really tell the difference between 30fps and 60fps. But at this age the difference is pretty slight and I often don’t notice.
Holy shit, this guy is more of a dumbfuck than I thought.

To get the latency down to something comfortable, Carmack had to dig down in the rendering layer, look for bottlenecks, and then figure out ways to get around them.
Carmack didn't have that much to do with fixing most of this, he realized that Latency is extremely important and improved the Latency of DOOM 3 afaik effectively improving the rendering throughput in the engine (he was rightfully anal about this long before engaging with VR):

john_Carmack_working.jpg


But he had to be convinced by a visit to Valve that certain other display technologies are important and Oculus built their own internal sensors.

I said above that Carmack solved these problems, but in truth it’s not at all clear who did the solving, which is important because that’s basically what this case is all about. Zenimax is trying to make the case that once Carmack had his hands on the prototype, all further advancements were his work alone.
Most of the things Shamus talks about in this Blog (apart from the fisheye barrel distortion fix, which was already a solved problem and Carmack just implemented for DOOM 3) are things that were either "solved" before Carmack got involved or got nothing to do with him.

Field of View - Didn't change much from the first prototypes Palmer Luckey put together.
Chromatic Aberration - Basic software fix together with Barrel Distortion, not in any way new
Head Tracking - Was working reasonably well with the first prototypes when talking about 3DOF, Oculus/Facebook and Valve separately with their LightHouse system worked on solving 6DOF
Latency - Largely fixed due to effort by Valve, here's a Blog by Abrash about it especially talking about the importance of Low Persistence and High Hz to fix judder: http://blogs.valvesoftware.com/abrash/down-the-vr-rabbit-hole-fixing-judder/
Center of Projection - I'm not particularly sure of what this is supposed to be either, are they referring to the distance the virtual cameras are from one another?

Afaik a lot of these things are also rather old concepts (first tackled to a lesser degree during the VR boom in the 90s or even before e.g. see Ivan Sutherland from 1968) and not patentable as such, as seen by SONY, Google, Valve also releasing HMDs with similar technology onto the market, not to talk about other "free" versions like OSVR that they for some reason didn't go after. I'm also not sure of the legal argument being made, since this doesn't directly involve game code. Most big publishers have stipulations in their contracts that employees can't work on their own games or similar software while working for said company, but what does this have to do with hardware tinkering and improvements? Is ZeniMax a VR or Head Mounted Display production company? Carmack also had Armadillo Aerospace going on the side while working for ZeniMax and did work there, are they claiming everything he did there work-wise also belongs to them, any breakthroughs he might have made related to rocketry engineering are suddenly property of ZeniMax Inc.?

In May, Zenimax had Luckey sign an NDA. This was probably the fatal mistake in the entire process.
This is basically mostly the thing this case rests on, which has very little to do with much of anything Shamus went over or talked about in the two Blogs before, much of which he also got wrong. Without Luckey signing the NDA there'd be no case. The most of what they can claim that Carmack contributed to the Rift is the headstrap, which was similar to the first Developer Kits and improvements to the sensors, which weren't used in any of the final releases. The rest of the work he did was software work he did on bringing a product ZeniMax owned (DOOM 3) to VR.
 
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Zenimax vs. Facebook Part 4: The Airing of Grievances
splash_zenimax_vs_facebook.jpg


Like I said last week, Zenimax seems to be suing[1] Oculus over the “theft” of it’s technology. This is a tricky argument because they’re accusing Oculus of stealing technology that Carmack was apparently sharing freely. You can argue that Carmack shouldn’t be sharing information against his employer’s wishes, but that makes this into a fight between Zenimax and Carmack, and Zenimax doesn’t want that fight.

Disclaimer: I am not a lawyer. This is a complicated case and I am not an expert on the law, VR, or corporate contracts. I’m working with incomplete records of complex events where there was often more than two sides to every story. I’ve done what I could to be accurate, but series is intended as opinion commentary, not authoritative historical record.

I am not a lawyer, but it seems to me that going after Carmack would mean Zenimax admitting that it was their own fault that Oculus had all this technology. They needed to push blame on Luckey’s team, because if they try to blame Carmack then the blame just boomerangs back on them. Why did you continue to share secrets you didn’t want the other party to have? Why did you continue to employ someone who was giving out your secrets? This sounds like an internal company dispute. Whatever disagreements Zenimax has with Carmack, he doesn’t have billions of dollars for them to sue him for and he doesn’t own the Rift.

They really wanted in on this VR stuff, and the best way to do that was to humor Carmack and try to entice Luckey to show up at the bargaining table. Or it was, until the moment when Carmack left.

Punishing Carmack was a dead end. So was bargaining with Luckey. And once Carmack was gone, their only move was to take Oculus to court. Carmack left for good in November 2013, and the Facebook acquisition was announced in March of 2014, just three months later.


My own unsupported conjecture:


Going by the personalities of the people involved, I’m willing to bet that Luckey, Carmack, and the rest of the Oculus team were not eager to become an arm of mega-corporation Facebook. The documents I’ve read don’t detail exactly when Zenimax began legal action against Oculus, but it was definitely before the Facebook deal. It’s entirely possible that the Zenimax was hoping to weaken Oculus through prolonged legal action (or simply scare them with threat of same) until they had no choice but to accept some sort of buyout. Instead it drove them into the arms of an even larger company.

Zenimax needed to prove that Oculus had stolen from them. This is a bit tricky. Aside from the problem that Carmack seemed to be “giving away” technology by simply collaborating with Luckey[2], there was the additional problem that you can’t own concepts or algorithms.

But you can own source code that implements those concepts or algorithms, and so their best bet was to allege that Oculus had stolen their source code. Zenimax had several complaints against Oculus, but there are four I want to examine specifically:

Complaint #1: Non-literal Copying.


tdi_laptop1.jpg



Zenimax accused Oculus of Non-literal copying of source code owned by Zenimax. Carmack wrote a bunch of rendering code for the Oculus while he worked at Zenimax. Later, the Oculus Devkit began using code that operated similarly. Oculus maintains they wrote the code themselves, while Zenimax claims they appropriated the code written by Carmack.

Zenimax claimed this appropriation was “non-literal copying”, which is apparently a thing?

Bob Zenimax:
Officer, you gotta help me! Shamus Young stole my laptop.


Policeman:
That’s pretty serious. What did it look like?

Bob Zenimax:
(Holds up laptop.)
It’s this one.

Policeman:
I thought you said this Shamus guy stole it. Did you recover it from him?

Bob Zenimax:
Well, he non-literally stole it.

Policeman:
You mean he used it without asking?

Bob Zenimax:
God no. He’s never been near the thing. But sometimes he pretends like he owns it. He makes these typing motions in the air and says he’s using my computer.

Policeman:
That… that’s not stealing.

Bob Zenimax:
Like I said, he non-literally stole it.

I get that the thrust of the argument is that Oculus supposedly stole the code by looking at the original and then writing their own version of it, as opposed to performing a brute-force copy & paste. But still, “Non-literal copying”? Wouldn’t that just mean “Not actually copying”? As in, the opposite of copying? What sort of linguistic shenanigans is going on here?

Consider these scenarios:
  1. You take my code and use it. (Literal copying.)
  2. You look at my code, and write your own version of it, using different variable names and formatting. (Non-literal copying.)
  3. I give you a detailed description of the mathematical operations you need to perform to complete a task. You then take that and write your own original code. (Which is allowed, in this particular case, since no patents are involved.)
The thing is, it should be impossible to differentiate #2 and #3 by simply looking at the resulting code. Ask any coder who’s gotten lost in their own codebase and they’ll tell you: Sometimes code can look superficially very similar and yet accomplish very different things. At the same time, two pieces of code can look completely different and accomplish exactly the same thing. Consider this code snippet:

int add_two_numbers (int a, int b) {
return (a+b);
}
And then let’s say this code shows up at another company:

int AddIntegers (int iValue1, int iValue2)
{
int iResult;

iResult = iValue1;
iResult += iValue2; //WARNING: No overflow checking!
return iResult;
}

These two bits of code accomplish the exact same thing. They look different. They’re formatted differently. They follow different coding conventions. But they accomplish the exact same thing: They both take a pair of numbers and return the sum. How can you tell if I wrote the second from scratch or if I used the first example as a guide? You can’t. If you want to claim that the second represents “non-literal copying”, then how could I possibly have written it to be MORE unlike the original? The function does exactly what it needs to do, and if it did anything else then the code wouldn’t work. By the logic of non-literal copying, I can never again write a function to add two numbers together, because it’s impossible to do it without it looking like I non-literally copied it from whoever paid me to write the first one.

I’m assuming it wouldn’t hold up in court on an example this small and elementary, but since complex programs are made up of simple operations, the problems remain even if you scale it up to something useful!

There are a lot of bullshit patents out there. But at least in those cases someone had to go to the time and trouble of applying for the patent! If you take non-literal copying to its logical extreme, it gives you patent-esque powers, applied to all of your code, without the idea ever needing to pass muster at the patent office. This is silly. In computer science there is often only one right way to interface with a library, simulate a process, or render a polygon. If we judge code by what it does rather than what it looks like, then nobody is safe from accusations of non-literal copying.

I’ll come back to non-literal copying when we get to the verdict. For now let’s just move on to…

Complaint #2: Literal Copying


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On top of allegations of Non-literal copying, Zenimax was also alleging that Oculus literally copied their code. Like, the real sort of literal. Actually literally.

It seems as though this complaint would be mutually exclusive with the “non-literal” one. It’s like claiming that someone tricked me into handing over my wallet, and also that they pick-pocketed it from me. These two things can’t both be true. Apparently this sort of thing is allowed in a lawsuit? Apparently so. It sounds strange to a layperson like myself.

We can argue about who invented what or who should get credit for various innovations leading up to the original Doom 3 demo of the Rift, but one fact that neither party denies is that Carmack wrote the original rendering code to make it work. From here one of two things is possible:
  1. After he worked out the required process, Carmack simply described[3] the process required, and from there the Oculus team was able to write the code themselves. As I said above, this wouldn’t be copying – literal or otherwise.
  2. Carmack just handed over the source code of the project to Oculus.
What does the evidence say? It’s… complicated.

It’s true that Luckey signed an NDA saying he wouldn’t use the Zenimax technology to compete with them. But it’s also true that you can’t own, patent, or copyright, or control an algorithm, and a lot of the breakthroughs in VR (like FoV distortion and chromatic aberration) are arguably algorithms. But again, this doesn’t matter if Zenimax can prove that Oculus appropriated their source code – literally or otherwise.

At one point Oculus VR co-founder Brendan Iribe requested (in writing!) a license for the “source code shared by Carmack”. That seems pretty damning. Why would Iribe request a license for code they didn’t need? That suggests that at some point Oculus was using Carmack’s code. However, we’re missing a lot of context surrounding this conversation.

For example: Perhaps Carmack shared the code with Luckey early in the project. (Which would have been permitted by the NDA.) Then Brendan Iribe – upon hearing that the code exists but not having seen it himself – requested licensing the code so they don’t have to write their own version.

We don’t know what the answer to his inquiry was. Maybe Zenimax said “No”. Maybe Zenimax asked more than Oculus could pay[4]. In any case, once the license deal fell through then Oculus would have written the code themselves.

All of this is just to point out that even though Iribe’s request sounds damning, there are a lot of possible explanations that don’t prove guilt. It all depends on the context and timing of the discussion. (Which has so far not been made public.)

The Hard Drive Problem


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The other major piece of gossip floating around in the wild is the detail that – hoping to prove that Carmack stole source code from Zenimax[5] – Zenimax demanded that Carmack hand over his hard drive. When they got it, they discovered that 90% of the data had been wiped.

Note that a data forensics expert said that it had been wiped. If Carmack had just dragged a bunch of crap into the recycle bin, then they would have been able to recover most of it. (Our data forensics technology is pretty good!) If the expert could only say that something had been wiped and not what had been wiped, it suggests that the data was very thoroughly and deliberately expunged. This probably wasn’t a casual cleanup job.

The expert went on to say that the wipe happened after Carmack got notice of the lawsuit.

Keep in mind this is presumably Carmack’s personal machine. That’s likely to have lots of private information, browser history, and other sensitive stuff on it. Imagine if someone was taking you to court. Would you want them to know your browser history? Would you want them to have access to all those website auto-logins you’ve got saved? Do you want them to know what programs you’ve got installed, what games you’ve played recently, and whoever might be on your contact lists? If I was being sued like this, my first thought would be, “Oh crap. They’ll probably demand I hand over this machine at some point. It’s full of company secrets and possibly even personal information not pertinent to the case. I should just clean it off so that stuff doesn’t wind up in the wrong hands.”

But you’re not supposed to do this!

When you’re being sued – or even when you THINK you’re about to be sued! – you’re not supposed to delete things. Even if it’s standard procedure at your company to shred documents after 30 days or purge emails after 90, you’re supposed to stop doing these things when you’re under threat of a lawsuit.

It’s possible that Carmack didn’t realize this. It’s also possible that this happened very close to when he was leaving Zenimax and would have been obligated (under normal circumstances) to purge the machine of company information.

It’s possible this was an innocent act and it’s possible this was willful destruction of evidence. Usually in cases like this the judge can handle this a couple of different ways:
  1. The judge can give the jury an adverse-inference instruction. This tells them, “You may (but are not required to) assume that the deleted evidence contains information that is unfavorable to the defendant.”
  2. The judge can give the jury a mandatory adverse-inference instruction. This tells them, “You must assume that the deleted evidence contains information that is unfavorable to the defendant.”
The judge went with #1, which suggests that Carmack’s action was viewed as a mistake, but not a deliberate and willful attempt to destroy evidence.

I’m not saying Carmack is definitely innocent of the charge of destroying evidence. I’m just saying that once you start looking into this stuff there’s a lot of nuance. Before I began reading up on this case it seemed like the Zenimax claims were preposterous. But now most of them seem basically reasonable. At the same time, the accusations over deleted hard drives sound a lot less scandalous.

In any case, I think the Zenimax case would be a lot stronger if they hadn’t pushed the “non-literal copying” stuff. Their silly claims and their dodgy expert make this look less like an honest inquiry and more like them being willing to throw everything at the wall and hope that something sticks.

Complaint #3: False Designation


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Doom 3 was featured prominently during the E3 Demo and the Kickstarter campaign. One of the Kickstarter reward tiers included a version of Doom 3 designed to work with the Rift. Zenimax claims this made it look like they were directly involved in all of this when they weren’t. All of this was done without any official blessing from Zenimax, who owns the Doom franchise.

If I did a big “Coca-Cola Giveaway!” and covered this whole blog in Coke branding, then some people might assume Coke was supporting or sponsoring my blog when in fact they had nothing to do with it. In this case I would be in danger of being accused of “False Designation”.

You can imagine how frustrating this was for Zenimax: They can’t get Luckey to cut any kind of deal with them, but then Luckey goes around using Zenimax IP as promotional material. The fact that this didn’t immediately trigger legal action from the persnickety Zenimax legal team makes me think Zenimax was still trying to entice Luckey to sit down at the bargaining table and sell them a stake in his company.

Complaint #4: Violation of the NDA


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Like I said earlier in this series: Luckey wasn’t allowed to use “Zenimax secrets” to compete with Zenimax. But his entire company was based on a product that depended on those secrets (or some of them) to work. I think this one depends on two ideas:
  1. Are the “secrets” that Carmack shared really things that could reasonably be said to violate the NDA? Zenimax worded the thing very broadly, but that doesn’t necessarily mean it can be applied broadly. Just because Carmack tells me how to calculate surface normals while I’m under NDA, it doesn’t mean I’m automatically violating the NDA when I use that knowledge to do something else. Is this something that’s considered an algorithm? Is it something I already knew before Carmack told me? Is it something that could be considered obvious or common knowledge? Carmack blabbed a lot of VR techniques as part of the normal “Thinking out loud” stuff he does in public appearances. Are those facts and ideas now free of the NDA because they’ve been openly shared in public?
  2. Is social-media company Facebook really “competing” with videogame company Zenimax by developing and marketing the Rift?
I don’t have the knowledge or expertise to know the answer to any of these questions, and in any case it probably comes down to what the jury thinks. Like the rest of this case, it’s one of those things that seems obvious at first but then gets really complicated when you try to zoom in on the details.

Next time I’m going to wrap this up by looking at the verdict.
 
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Infinitron

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Zenimax vs. Facebook Part 5: The Verdict
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When the Zenimax vs. Facebook trial ended, Zenimax was awarded $500 million. Actually, it’s a bit more complicated than that. But let me do things backwards and start with talking about Carmack’s reaction to the verdict.

Disclaimer: Like I said at the start of this series, I am not a lawyer. This is a complicated case and I am not an expert on the law, VR, or corporate contracts. I’m working with incomplete records of complex events where there was often more than two sides to every story. I’ve done what I could to be accurate, but series is intended as opinion commentary, not authoritative historical record.

Carmack’s Reaction
Carmack posted a long list of his grievances on Facebook. I’m going to go through the whole thing and add my own commentary. Here’s the reaction from the man himself:

The Zenimax vs Oculus trial is over. I disagreed with their characterization, misdirection, and selective omissions. I never tried to hide or wipe any evidence, and all of my data is accounted for, contrary to some stories being spread.

Being sued sucks. For the most part, the process went as I expected.

The exception was the plaintiff’s expert that said Oculus’s implementations of the techniques at issue were “non-literally copied” from the source code I wrote while at Id Software.

This is just not true. The authors at Oculus never had access to the Id C++ VR code, only a tiny bit of plaintext shader code from the demo. I was genuinely interested in hearing how the paid expert would spin a web of code DNA between completely unrelated codebases.

It sounds like their expert witness was simply looking at Carmack’s code, then the Oculus code, and determining that the latter was based on the former based on nothing but the appearance of the text itself.

Like I said last week, it should be impossible to tell the difference between writing code based on a clear specification and taking existing code and renaming all the variables, shuffling all the operations around, and changing the formatting. It seems like Zenimax would at least need to prove that Oculus had access to Carmack’s code to even have a prayer at making this accusation work. But then “proving that Oculus had access to Carmack’s code” was kind of the center of their other argument, which is that Oculus literally copied their code. If you can prove Oculus had Zenimax code, then you can nail them for actual copying, and if you can’t then even this non-literal stuff doesn’t hold up.

Basically, this entire “non-literal copying” argument is terrible. It’s their weakest argument, the evidence is flimsy, and it involves some expert witness shenanigans that makes them look incredibly bad.

Early on in his testimony, I wanted to stand up say “Sir! As a man of (computer) science, I challenge you to defend the efficacy of your methodology with data, including false positive and negative rates.” After he had said he was “Absolutely certain there was non-literal copying” in several cases, I just wanted to shout “You lie!”. By the end, after seven cases of “absolutely certain”, I was wondering if gangsters had kidnapped his grandchildren and were holding them for ransom.

If he had said “this supports a determination of”, or dozens of other possible phrases, then it would have fit in with everything else, but I am offended that a distinguished academic would say that his ad-hoc textual analysis makes him “absolutely certain” of anything. That isn’t the language of scientific inquiry.

It’s not that his claims are necessarily deceitful. It’s that his level of certainty is indefensible given the subject matter and the evidence presented[1].

The notion of non-literal copying is probably delicious to many lawyers, since a sufficient application of abstraction and filtering can show that just about everything is related. There are certainly some cases where it is true, such as when you translate a book into another language, but copyright explicitly does not apply to concepts or algorithms, so you can’t abstract very far from literal copying before comparing. As with many legal questions, there isn’t a bright clear line where you need to stop.

The frustrating thing here is that of course the jury isn’t going to know anything about coding. The jury may even have been selected specifically to remove people with any sort of programming expertise. I understand this is common practice in jury trials for a variety of reasons, but computer code is complicated. There’s just no way to take a bunch of non-coders and give them enough education in the space of a trial that they could even begin to make useful conclusions about the merits of “non-literal copying”. The trial was just two weeks, and I’m sure they didn’t spend those two weeks educating people on coding practices. These were people with a few hours of coding knowledge (at best!) being asked some really complex problems about original code that even people with computer science degrees might not agree on.

You might as well flip twelve coins or roll a handful of dice.

The analogy that the expert gave to the jury was that if someone wrote a book that was basically Harry Potter with the names changed, it would still be copyright infringement. I agree; that is the literary equivalent of changing the variable names when you copy source code. However, if you abstract Harry Potter up a notch or two, you get Campbell’s Hero’s Journey, which also maps well onto Star Wars and hundreds of other stories. These are not copyright infringement.

There are objective measures of code similarity that can be quoted, like the edit distance between abstract syntax trees, but here the expert hand identified the abstract steps that the code fragments were performing, made slides that nobody in the courtroom could actually read, filled with colored boxes outlining the purportedly analogous code in each case. In some cases, the abstractions he came up with were longer than the actual code they were supposed to be abstracting.

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The expert witness was explaining to the jury that two pieces of code were similar enough that he was “absolutely certain” it was copied, and yet even if by some miracle they could understand code, the proof was too small for the jury to read!

When Carmack says the abstractions were larger than the code they were abstracting, it means he’s talking about the examples of supposedly infringing code that were being shown to the jurors. The witness had a section of code that was too small to actually read, but beside it he had a text description of what the code was supposedly doing. But if the description is larger than the code, then it says one of two things:
  1. The code was so elementary that it should never be considered infringing. It’s like the AddTwoNumbers () example I gave last week. Like Carmack said, copyright explicitly does not apply to concepts or algorithms. Below a certain size, if you’ve got two bits of code with the came conceptual goal then it might not be possible for them to differ beyond things like spacing and variable names.
  2. The code the jury was supposed to examine was deliberately printed in a much smaller font than the descriptive text, making it so they could read his claims but not the code. In terms of furnishing proof, that’s like holding up a shoebox with a note on the side that says, “THIS BOX CONTAINS THE MURDER WEAPON WITH THE DEFENDANT’S FINGERPRINTS ON IT AND ALSO A WRITTEN CONFESSION. PLEASE DON’T LOOK INSIDE”. And then expecting the jury to just take your word for it.
I’m shy of outright accusing someone of premeditated deception during a case I didn’t witness, but I will say this sounds extremely suspicious.

It was ridiculous. Even without being able to read the code on the slides, you could tell the steps varied widely in operation count, were often split up and in different order, and just looked different.

The following week, our side’s code expert basically just took the same slides their expert produced (the judge had to order them to be turned over) and blew each of them up across several slides so you could actually read them. I had hoped that would have demolished the credibility of the testimony, but I guess I overestimated the impact.

Notably, I wasn’t allowed to read the full expert report, only listen to him in trial, and even his expert testimony in trial is under seal, rather than in the public record. This is surely intentional — if the code examples were released publicly, the internet would have viciously mocked the analysis. I still have a level of morbid curiosity about the several hundred-page report.

The expert witness circuit is surely tempting for many academics, since a distinguished expert can get paid $600+ an hour to prepare a weighty report that supports a lawyer’s case. I don’t have any issue with that, but testifying in court as an expert should be as much a part of your permanent public record as the journal papers you publish. In many cases, the consequences are significant. There should be a danger to your reputation if you are imprudent.

This “expert witness” was free to make any claim he wanted. Who on the jury could possibly doubt him? The jury selection process is deliberately designed to weed out anyone capable of spotting technical bullshit. The other side can pull in their own experts, but then it comes down to a battle to see which side can most effectively spin bullshit. If the jurors lack the technical expertise to understand the argument on the merits, then they’re going to have to make the decision based on something besides the merits.

I understand why you can’t have an “expert jury”. I imagine if you had a lawsuit between particle physicists it would be basically impossible to find a qualified “expert” jury that wasn’t also suffering from a massive conflict of interest. And if you have some expert jurors and some lay jurors then the laypeople might simply defer to the experts and you’ll end up with too much decisive power in the hands of a small number of people, which is specifically the problem juries are supposed to solve. So while I understand the need for non-expert jurors, it’s still frustrating in situations like this one.

It’s an imperfect world filled with imperfect people, and so any legal system is going to have problems or compromises. But I think it’s worth noting when it looks like someone is using an exploit to win. To me it looks like Zenimax is fighting dirty. This doesn’t mean the Zenimax claims are automatically without merit, but it’s yet another point where the Zenimax legal team ends up looking extremely suspicious.

It’s like a sports team that makes heavy use of strategic fouls. Their most thuggish, low-value players always end up “accidentally” smashing into the key players of the opposing team in injurious ways. They’re still technically playing by the rules (they still have to cope with the consequences of the penalty) and it’s impossible for the refs to prove these accidents are part of a calculated strategy, but the people in the audience can see what’s going on. They can compare the behavior of this team to others and note how the other teams don’t seem to have this much trouble keeping their elbows out of the crotches of the opposing team.

The coach may or may not be cheating, but he’s definitely an asshole.

The Actual Verdict

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According to Business Insider
  1. Oculus was ordered to pay Zenimax $200 million for violating the non-disclosure agreement Oculus co-founder Palmer Luckey signed with Zenimax.
  2. Oculus was ordered to pay Zenimax an additional $50 million for copyright infringement, and another $50 million for false designation. (“False designation” in this case refers to using Zenimax properties – such as Doom 3 – to promote the Rift. )
  3. Former Oculus CEO Brendan Iribe was ordered to pay Zenimax $150 million for false designation.
  4. Oculus cofounder Palmer Luckey was ordered to pay Zenimax $50 million for false designation.
That is a Large Number of Dollars!

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Technically Oculus wasn’t found guilty of stealing trade secrets, copying source code, or technology theft. Instead they were found guilty of breaking the NDA and misappropriating Doom 3 in the Kickstarter promotion.

It’s a strange verdict because Zenimax seems to have whiffed on its major claims, but then they got a pretty big payday anyway. The jury didn’t apparently bite on the idea that Oculus stole code or technology from Zenimax, which was the really big one on the list. But Zenimax still managed to get half a billion dollars. I’m under the impression that punishments for NDA violations and false designation claims don’t usually end up with that many zeroes on them.

My own take:

All told, Zenimax is getting $200 million specifically for the false designation claims. I follow a lot of gaming news. I followed the story of Oculus. I followed (but did not back) the Oculus Kickstarter. And yet I never got the impression the Oculus was a Zenimax product. More importantly, I don’t recall seeing any confusion over this matter in the press or among the gaming public. I’m not saying that absolutely nobody was confused, but I am saying that any confusion much have been brief and small-scale. Moreover, I’m having a hard time seeing how that confusion caused Zenimax $200 worth of damages, much less $200 million.

Having said that, I’m basically fine with Zenimax winning on these two points. I’m glad that they didn’t win on the far more specious points regarding code copying. Zenimax has already launched further lawsuits against other VR pioneers in the wake of this lawsuit. It’s pretty clear that if they had their way, they would own all of VR through trademarks and patents, and they would be the gatekeepers for it. They’re still trying to do that because they’re assholes, but the fight is going to be harder for them now because they couldn’t nail down the idea that they owned the code / algorithms that make VR possible. I’m hopeful that all of the important stuff is – by virtue of having passed into public knowledge – mostly unpatentable at this point. VR might succeed or it might fail, but at least it will do so on its own merits and not due to corporate skullduggery and legal sniping.

Yes, the dollar value of the verdict seems excessive. This is like a guy causing a fatal car accident through careless jaywalking. The prosecutor tries to convict him of manslaughter, but that doesn’t work out. But they do convict the guy of jaywalking. But then he ends up sentenced to five years in prison. Okay, maybe five years in prison is appropriate for causing those deaths, but you’ve just put someone in jail for five years on the charge of jaywalking. Is he guilty of the more serious charge or not? Something isn’t right here.

Yes, I’m aware that civil and criminal court cases are totally different. I’m just trying to show how oddly mismatched the punishment and the crime are. I don’t know what to make of it. I guess I can take comfort in the fact that both of these companies have more money then either of them knows what to do with. It might not make a lot of sense to me, but at least nobody’s really getting hurt[2]. No game studios are going to close and VR isn’t going to end up smothered in the crib. Everyone will be fine.

Well, everyone except for former CEO Brendan Iribe. He’s being made to pay $150 million. That might be a lot of money for him. Actually, why is the verdict targeting specific officers in the company? Is that normal? I know nothing about him, but even if we assume for the sake of argument that everything was totally his fault, it was still his fault as an officer of Oculus. If I sue Facebook and win, shouldn’t my award from from Facebook’s coffers and not Zuckerberg’s personal bank account? If they want Iribe’s money, shouldn’t they have to take him to court directly?

It’s clear that despite all the reading I’ve done, there’s still a lot about this case I don’t understand.

So that’s my take on Zenimax vs, Facebook.

Acknowledgement
This series was massively helped through the guidance of Tom Bartleby, who runs Bartleby’s Backpack. He was able to point me to court documents and explain many important details (like the adverse-inference stuff) that I would not have been able to untangle otherwise. To be clear, he didn’t review the final version of this series, so if there are any mistakes then the blame for them should still fall on me. But this series is significantly less wrong thanks to his input.

Do check out the site. He’s done a five-part analysis on the Skyrim Thieves Guild questline that I dumped on way back in 2011, although his focus is pretty different. I promise it’s not a re-hash of what I’ve said. He also digs into why the story is constructed the way it is, while I stuck to the much simpler “lol dumb writer”. (Which I don’t really feel bad about. Sometimes you just need to throw tomatoes at the tone-deaf singer. It was a work of catharsis as much as analysis.) Also, it’s much less on plot holes and far more on thematic and tonal issues. Which probably makes it more like my current style of analysis.

Anyway. Thanks to Bartleby for the help. Thanks for reading.

-Shamus Young
 

Santander02

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They already are, remember the "scrolls" controversy with mojang?

EDIT: More recently, they forced an indie dev to change the name of their game "Prey for the Gods" 'cuz it had the word "Prey" on it. Fuck these suits.
 
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Absinthe

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Inb4 Zenimax closes Bethsoft and goes full patent troll.
That's actually fairly rewarding to do. If a tech company starts suing other tech companies for specious patent violations, usually the other tech company will fire back with bullshit over-broad patents of their own that the first company somehow infringed, which makes your patent suit a lot less fun and profitable. But if you are nothing but a patent trolling parasite, you don't have to worry about someone else potentially having a patent on the stuff you made because you don't actually make anything, so you can just sue to your heart's content. If they got away with their non-literal copying claims though then it might be very profitable to write stuff and sue anyone whoever collaborated with them for the crime of non-literal copying (ie. writing anything that they can hire an expert to vouch as suspiciously similar), which is like a patent on steroids, but only for people who worked with you. Of course this would probably make everyone else a lot less willing to work with Zenimax. Really the safe route is to just be a patent troll.
 
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Zarniwoop

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That's actually fairly rewarding to do. If a tech company starts suing other tech companies for specious patent violations, usually the other tech company will fire back with bullshit over-broad patents of their own that the first company somehow infringed, which makes your patent suit a lot less fun and profitable. But if you are nothing but a patent trolling parasite, you don't have to worry about someone else potentially having a patent on the stuff you made because you don't actually make anything, so you can just sue to your heart's content. If they got away with their non-literal copying claims though then it might be very profitable to write stuff and sue anyone whoever collaborated with them for the crime of non-literal copying (ie. writing anything that they can hire an expert to vouch as suspiciously similar), which is like a patent on steroids, but only for people who worked with you. Of course this would probably make everyone else a lot less willing to work with Zenimax. Really the safe route is to just be a patent troll.
Like Apple with their retarded "rounded corners" lawsuit
 

LESS T_T

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Codex 2014
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: https://arstechnica.com/gaming/2017/06/zenimax-to-judge-block-oculus-sales-or-give-us-20/

ZeniMax to judge: Block Oculus sales or give us 20%
After trial victory, company also ups damage demand from $500 million to $1 billion

Earlier this year, ZeniMax won a $500 million judgment against Facebook-owned Oculus and many of its executives for illegal use of ZeniMax's VR technology and copyrights. That wasn't the end of Oculus' legal trouble, though. The company is now fighting off a proposed injunction that is seeking to bar the sale of any hardware or software "derived" from ZeniMax's technology or to enforce a 10-year, 20-percent royalty to ZeniMax on that hardware.

US District Judge Ed Kinkeade of the Southern District of Texas heard arguments in that injunction case Tuesday, and he also addressed a ZeniMax request for an additional $500 million in false designation damages and lawyer's fees. In court filings, ZeniMax argues that "the jury verdict clearly establishes that Oculus wrongly obtained ZeniMax VR technology under the NDA and used it... to establish a business that would not have existed without ZeniMax."

While Oculus' sale to Facebook "[made] tycoons out of the individual Defendants," ZeniMax writes, the company "never received a penny for its investment in this revolutionary technology—even though it was ZeniMax that had proven its value to the world long before Defendants ever came along." The company also points to specific language in the Oculus/ZeniMax NDA that establishes an injunction would be called for if that agreement was broken.

The $500 million in damages already awarded by a jury is "inadequate remedy for ongoing harm," ZeniMax argues, because that amount "is an insufficient incentive for Defendants to cease infringing." To argue this, the company cites Facebook COO Sheryl Sandberg, who said in an interview that the jury award was "not material to [Facebook's] financials."


Oculus answers back

In its own court filings in response to the injunction motion, Oculus argues that "ZeniMax cannot show it is suffering continuing harm" from Oculus' actions. On the contrary, Oculus argues that the trial found ZeniMax would likely suffer "zero" monetary harm in the future because of Oculus' NDA breaches, which it says took place years ago and are not ongoing. "ZeniMax does not offer any products that compete with Oculus’s virtual-reality platforms and headsets," the company points out.

Any injunction on Oculus hardware would "impose undue hardship on Oculus," the company argues, and even "disserve the public interest" by letting Zenimax "turn around and wield it as leverage in future licensing negotiations." In any case, Oculus writes, ZeniMax has not provided evidence that the company's current source code continues to infringe on the early code that a jury found infringed on ZeniMax's copyright.

Oculus says rewriting the entire Oculus code base from scratch, as ZeniMax is requesting, would be a "lengthy, burdensome, and costly" process requiring "clean-room engineers to make myriad changes not just to the code fragments ZeniMax presented at trial, but to numerous other segments of interrelated and interdependent code." That process wouldn't be necessary if Zenimax had asserted its rights in a more timely fashion, Oculus writes.

Beyond rebutting the proposed injunction, Oculus also argued in court that the entire jury verdict should be thrown out. In arguments, an attorney for Oculus argued there is "not one ounce of evidence" that ZeniMax actually lost sales or took financial damage because of Oculus' actions. The jury award amounted to mere speculation about lost future earnings that weren't supported by the evidence, he argued, according to a Law360 summary of the hearing (subscription required). Furthermore, Oculus is seeking damages from ZeniMax for failing to disclose important information about ZeniMax's valuation that were ordered to be produced during the trial.

Judge Kinkeade asked Zenimax to be "more specific" in which pieces of current Oculus code infringe on Zenimax's copyright, according to the Law360 report. While the judge didn't issue a ruling following the hearing, he urged both parties to reach a settlement instead of risking a big decision that he said could come down hard against either side rather than "splitting the baby." The judge said he would likely "resolve the heck out of [this] big, hairy fight" sooner rather than later, according to Law360. So absent a settlement, we expect a ruling could come any day.
 

Infinitron

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Codex Year of the Donut Serpent in the Staglands Dead State Divinity: Original Sin Project: Eternity Torment: Tides of Numenera Wasteland 2 Shadorwun: Hong Kong Divinity: Original Sin 2 A Beautifully Desolate Campaign Pillars of Eternity 2: Deadfire Pathfinder: Kingmaker Pathfinder: Wrath I'm very into cock and ball torture I helped put crap in Monomyth
LESS T_T This makes me wonder whether Bethesda's recent VR titles are basically just a ploy to give them credibility in this lawsuit ("see, we are a VR company and Carmack's actions hurt our business interests!")
 

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