Experienced Points: Is ZeniMax Being a Patentless Troll in Its Claim Against Oculus?

 By Shamus May 6, 2014 61 comments

This week we’re talking about the ZeniMax vs. Oculus lawsuit, which is sort of being branded as Bethesda vs. Carmack simply because those names are more familiar to people. I hope you’re not coming in here with delusions of me being objective about this. A lumbering jerk corporation is suing a VR company I’m excited about and saying disparaging things about one of my personal heroes.

Still, people have asked what I thought, so here it is. I strongly suspect they already knew what I was going to say, they just wanted to hear me say it. We all know how this works.

I’m feeling pretty grateful today, so let me share some behind-the-scenes info: My original article title was the boring “ZeniMax vs. Oculus”, but I’ve made it clear to the folks at The Escapist that they’re free to re-title them if they like. That could come back to bite me someday if someone were to make a headline that landed me in some sort of controversy, but we’ve been doing this for years now and it’s worked out fine so far. In this case I think the new headline is vastly superior to the one I came up with.

The reason for this is that on a busy, multi-contributor sites like The Escapist, headlines really do matter. They probably matter more than the quality or topic of the writing when it comes to how many people actually read the dang thing. If the headline proposes a question, youNot YOU you, but you know what I mean. naturally want to click through to see the answer. I don’t have to worry about this on my site. If you’re here, you’re probably interested in my content. (Or lost.) But if you’re on The Escapist then you’re probably looking for “something interesting”. You’re foraging for entertainment, and having a juicy title is like a tree producing brightly colored fruit as a means of getting your attention. It just makes good sense. Text-only offerings like my column already have trouble getting noticed in an avalanche of multimedia content. I’m not bitter about that. It’s totally understandable and a natural result of the “journalism as entertainment” thing we have going on the internet. We can bitch about human nature all we want, but that’s probably not a useful way to attack the problem. Much better to just play the headline game, but make sure the content behind the headline is worth reading. I used to sneer at the “top 10 list” approach to producing content, but the problem wasn’t the numbered list, it was the content of the list. It’s completely possible to make a solid and interesting article that lists n thingsMental Floss is a goldmine for this sort of thing.. And in the long run, I suspect the interesting list will out-perform the shallow listThis is actually item #4 on the list of "Top ten reasons Shamus is an idealistic fool".

Also: In going through four or five different editors at the Escapist, I’ve never once had anyone mess with my text. Nobody ever tried to “punch it up” or “add some spice”, which I know is a problem other freelancers have run into. This is the 170th column I’ve written for the site, and we’ve never had a disagreement over topic or tone. They’ve never spiked an article, and never pressured me to talk about a particular topic. On one or two occasions I might have needed to patch up a paragraph where I wasn’t clear enough, but in general the whole thing is smooth and professional. I realize I’m lucky in the regard and I’m grateful for it.

Also, I can’t help but read the title as “Is ZeniMax Being a Pantsless Troll in Its Claim Against Oculus?” Which makes me think of ZeniMax as Walter White, waving a gun around and generally looking like a crazy person. Which is fitting.


202020161 comments? This post wasn't even all that interesting.


  1. kerin says:

    I was seriously a day away from buying The Elder Scrolls Online for me and my wife. Guess not. I know it’s trite and everything, but can we maybe hit ZeniMax in the wallet over this?

    • Daemian Lucifer says:

      Sure,but with TESO?Its already plagued with problems on its own,so this would just be another reason for them to justify failure.

  2. Abnaxis says:

    I really wish I had the money to splurge on an Oculus dev kit.

    Ah well. I guess it gives me time to see if it actually succeeds or not…

  3. Daemian Lucifer says:

    “A lumbering jerk corporation is suing a VR company I’m excited about and saying disparaging things about one of my personal heroes.”

    Who is also the father of one of your twelve year old friends/colleagues.

  4. Abnaxis says:

    More OT: I wonder if Carmack had a non-competition agreement with ZeniMax? I’ve heard of a few people getting called out on those, when they sign a contract that says any IP they come up with for X years after they leave employment, belongs to the company if it is in the same market.

    My old company could probably take me to court over one, except I’m so geographically removed from them they’d have a hard time saying I am “competing.” Since Carmack is (undoubtedly) working on new rendering/physics/game engines, though, I could see ZeniMax finding a legal loophole to sue, calling it a competitor to their own engines.

    • Shamus says:

      I ALMOST got into the rampaging bullshit that is employee contracts, but it felt like it was too big a topic for a digression. The whole non-compete thing is about as sensible as the typical EULA: Companies grabbing way more power than they should have, and employees agreeing to them because they just want to get on with their lives and not try to fight the system.

      The non-compete language, taken to its extreme, could bar you from taking another job in the same field. Which means you can’t leave your current job unless you want to start over with a new career. Which deprives you of the most powerful weapon you have against an abusive employer: The ability to leave and take your skills elsewhere.

      To be clear: I don’t think contracts are actually [ab]used this way very often, but like a EULA its sort of alarming that they would even ASK for this power.

      • Abnaxis says:

        Definitely on the same page with you there. If my previous company HAD tried to hit me with the clause, I would have fought it tooth and nail.

        Although I am actually curious now how often those clauses are enforced?

        In my own limited anecdotal experience, the company I work at now is a small start-up, where the company the owners used to work at tried to pursue them for taking over one of the big company’s job.

        The judge threw out the case when it came to light that the big company was actually the entity that had subcontracted my bosses, and thus it was trying to sue them for doing a job it had hired them to do.

        • Epopisces says:

          I worked for a small copy shop that totally wasn’t Kinko’s*. All managers had to sign a non-compete clause with a 2 year term, specifically intended to prevent them from jumping to competitors with corporate contracts.

          In my 5 years there at my store alone that happened twice, once with an assistant manager, once with the store manager. Both times they pulled customers (corporate customers) with them by undercutting the contract rate.

          Neither time did the company pursue any legal action. So I guess my answer would be: not often, at least not when it comes to local field managers working at large national companies.

          *Cuz that isn’t its name any more

      • Matt K says:

        My contract class in law school had a whole section of these. Real pain in the ass that are rarely enforced and when they are, are rarely upheld but typically requires the employee to go to court to settle it which again is a huge pain. They make some sense in theory but in practice what they really want is already covered by things like not stealing customer lists, etc.

        • John Lopez says:

          Which means the *real* purpose of these clauses is intimidation. Selectively and rarely enforced clauses in contacts still are effective in creating *behavioral* changes in those who face those clauses, because you never know if it is going to be *you* who gets smacked down with legal fees, lost time and lots of anxiety.

          Plus, the companies *do* win from time to time, which can bankrupt an individual for simply trying to continue to work in the field they are worth employing in.

          Meh.

          EDIT: I really should check date/time stamps before necroing … sigh.

      • MrGuy says:

        Unfortunately, it’s not always the companies who decide to put these clauses in. Often, its their customers.

        Consider a company that has amazing proprietary (and genuinely innovative) technology. Let’s say it’s business software, so companies who buy it are making a long term commitment. Those customers want to make sure the software they’re agreeing to pay so much for wont be available from someone else cheaper later.

        The want some assurance that the key engineers won’t walk out and start a rival company just AFTER they sign that big contract. So, they may insist that the companies they do business with provide some protection around the intellectual property they’re signing up to pay for (which is, face it, all you’re really buying when you buy software). Software company meets this desire by demanding IP ownership and non-compete from their employees.

        Of course, at this point, it’s just a “standard industry practice” that no one thinks about anymore, so yeah.

        As I understand it (IANAL), the non-compete portions are rarely enforceable, on the theory that the company can’t reasonably prevent you from earning a living (e.g. an agreement that a programmer can’t write code again for money, anywhere, for two year is unreasonably preventing that person from earning a living). But they’re at least some legal basis for cases where people genuinely DO walk out of a company and immediately take a bunch of concepts directly to a competitor.

        • Sabrdance (MatthewH) says:

          There’s another side of this as well if you subscribe to a human capital model. Businesses invest in developing the talents of their workers -which is expensive. This means they either have to shell out a lot of money in non-compensation to the worker, or they have to pay the worker less. Regardless, a rival company can easily offer a higher wage to attract an experienced worker, saddling the original company with the training costs but depriving them of the return on the investment.

          It’s one of the possible reasons businesses cut back on their internal training and rely more on higher education/outsourced training. Force the workers to pay for the training, then it is no loss if they jump ship because the company didn’t pay for it.

          Development of IP, though is more complicated because in addition to the inventor’s inspiration, there were also the resources the company made available for R&D.

          And this is one of the possible reasons businesses are cutting back on R&D, too -relying on start-up firms to do the work.

          I don’t actually have a solution to the problem -and I agree that any solution that routinely ends up in court has problems -but it is an endlessly fascinating problem to think about.

      • Narkis says:

        We had a high profile case of that here in Greece a few months ago. It came to light that the Greek Starbucks equivalent had such extreme non-compete clauses in their workers’ contracts: Those leaving the company, for any reason, were forbidden from taking any job in the same field (the field being food/drink serving establishments) for a year, under penalty of 10,000 euros.

        The issue was brought to parliament by one of the smaller parties. The government didn’t even bother to respond. The contracts have still not changed as far as I know…

      • Bubble181 says:

        In Belgium at least ,these are often backed by law and *heavily* enforced. Security can’t go into law enforcement (and the other way around); R&D engineers can’t work for any other R&D companies,…
        It’s one of the very few pro-employer laws we have, because in most other matters our labour laws are very pro-employee. Still, it’s pretty crappy and CAN and DOES break perfectly good careers (or forces people to leave the country…)

    • Benjamin Hilton says:

      A non-competition agreement was pretty much my first thought too. The really sad thing is when this is applied to young engineers. I mean John Carmack could (probably) be hired somewhere without signing it. He’s John Friggin Carmack. If he really wanted to press the issue he could just say “You want me on you’re team more than I need to be here.”

      That is not the case with almost everyone else. If you want to work anywhere in the field it’s standard, you either put up with their Byzantine rules, or you go jobless.

  5. Joe Informatico says:

    So could you exert influence over the column titles if you wanted to, Shamus? I was under the impression most periodicals have always insisted on control over headlines for the same reason book publishers tend to demand control over cover art: it’s part of the “marketing”. This is a practice I thought was well-established in major newspapers well back in the 40s and 50s.

    I’m sure “Question” headlines work on most readers, but they always make me think of Betteridge’s Law”.

    On “Top 10″ lists: those have always been the most click-bait-y form of content, even before the Web was really a thing. I used to read guitar magazines in the early 90s, and you could rest assured the issues with articles titled “The 20 Best Guitar Solos of All Time!” or “The 50 Best Guitarists in History” would generate a flurry of reader letters infuriated that those idiot writers/editors excluded this song, or that guitarist. Nothing generates views like nerd rage, and music-nerd rage was no exception.

    • Shamus says:

      “So could you exert influence over the column titles if you wanted to, Shamus?”

      I’d assume so. They ran my first few dozen columns without changing the titles or objecting in any way. I was the one who told them, “If you don’t like any of my titles, feel free to change them.” I can’t imagine that they would refuse if I said I really wanted a particular title.

      • Tizzy says:

        I am amazed that it’s already column 170…

        I am also amazed that the editorial hand has been so light. This is truly to the Escapist’s credit! I’m glad to know that they offer such a free environment.

  6. newplan says:

    “The reason for this is that on a busy, multi-contributor sites like The Escapist, headlines really do matter. They probably matter more than the quality or topic of the writing when it comes to how many people actually read the dang thing.”

    This is slightly off topic but I just wanted to comment to let you know that the I (and probably a large portion of your audience) appreciate the quality and thoughtfulness of your writing on gaming topics. The 21st century model is basically garbage content with click bait titles to entice people so they waste a few seconds of time (and absorb a few ads in the process).

    It’s nice that there’s someone out there writing thoughtful, balanced commentary on a topic that I find interesting.

    Thanks.

    • Aitch says:

      Heartily seconded. The solid style, tone, balance, passion, is so difficult for me to find nowadays. It’s kept me checking back nearly every day for years now. Not to mention the community, which seems like something akin to a magic trick to stay so civil and intelligent so consistently.

      It warms my soul, no joke.

      • MichaelGC says:

        Indeed. I’m pretty sure the data-centre which stores rejected comments from the moderation queue is visible from space by this stage, but that would only explain half of the magic trick.

    • MichaelGC says:

      I completely agree with what you say, and – for what it’s worth – applaud loudly the saying of it.

      PS I’m going to stop applauding loudly, now, as folks are giving me funny looks.

    • Phantos says:

      If nothing else, Shamus’ articles are the only valid reason anyone has to go to The Escapist.

    • Just chiming in to say that it’s appreciated, and I read every one of your articles. And it’s positive working relationships like this that make me want to check out other Escapist features.

    • Tizzy says:

      Also, I am grateful that people like Shamus still produce large amounts of written content. Not to disparage podcasts or, especially, videos which are such a large amount of work to produce (and I sure do enjoy the diecast, and campster’s videos). But ultimately, my main mode of consumption is reading, There is only so much watching or listening that I can do in one day, while apparently I can read and read and never tire of it.

      And I cannot undrstand why so many content providers want to offer all fancy videos all the time. I guess I don’t understand people either…

    • Joshua says:

      As far as the multi-media, I *hate* such things. I would rather just read a good article. Which makes me not much of a fan of the Spoiler Warnings, but whatever. If I’m going to Cracked, or a news article, or even just a movie review, I literally groan whenever I see it’s just a video instead of something I can actually read.

      Guess I’m not in the majority.

    • ET says:

      I really like your written stuff, too Shamus. Not because I hate other media types, e.g. podcasts or video, but because I firmly believe that everyone should use the medium that is appropriate at the time.

      So many videos I’ve watched, that would’ve been better written, written articles that wouldn’t been better as podcasts, mumble grumble…

  7. Nathan says:

    Paul Graham wrote an interested essay about the “list of n things” format: http://paulgraham.com/nthings.html

    • Tizzy says:

      I enjoyed it more than I expected. I think he missed the opportunity to make a bigger point, though. I agree with him when he writes: “The main point of essay writing, when done right, is the new ideas you have while doing it. “, but I think the remark is overly writer-centric. By the same reasoning, the true essay is especially valuable to the readers, since, as they follow the writer’s train of thought, they not only share the writer’s insights but get new ones of their own, sometimes dissenting ones. In a way, the essay is like a kickstarter for the reader’s own thoughts on the question.

  8. MichaelGC says:

    I think I might be lost. Can anyone help me with my icosahedron?

    • ET says:

      Well, that depends what you’re using it for, and what tools you’re using! First, what programming language are we talking about?

    • The Rocketeer says:

      I may be able to help. Does your icosahedron have 20 sides, as intended, or does it have too few or too many? This may not be the site for you if this is the case. Does it have the right number of sides but an inappropriate number of vertices? It really should have thirty; if it doesn’t, see if the haunted stagecoach you bought it from has a return policy. Is your icosahedron rolling upward, into the air, to spite our feeble understanding? Assuming your icosahedron is for rolling; I don’t mean to stereotype. Does the same face always show upward, regardless of your attempts to alter it? Consult your druid. The heeding of portents is best left to the suitably enlightened.

  9. TMTVL says:

    Me personally, I get motion sickness so I’m not into the whole VR thing. However, patent trolls trolling patents is one of my pet peeves, so I really hope zenimax is going to suffer for what they’re doing.

    Ah well, TESO is going to take a bite out of their wallet anyways, so maybe they’ll give up in a few years time.

  10. MichaelGC says:

    Facebook bought Oculus for two billion dollars, and ZeniMax saw their relationship with Carmack as a way to lay claim to some of it.

    I don’t think this is Bethesda vs. Carmack. It’s ZeniMax vs. Facebook. I’m guessing that ZeniMax’s lawyers saw the Luckey NDA as a way to lay claim to some of what they’d been working on and lost: i.e. non-dilutable Oculus equity. I’ll not be at all surprised if this is settled out of court, which would obviously involve Facebook paying ZeniMax off.

  11. kanodin says:

    It undoubtedly is “offensive in the extreme” to claim all the ideas of any employee, even ones made in off hours, but that doesn’t mean Zenimax doesn’t have a case. As I understand it clauses claiming the right to any idea created while employed are common for engineers.

    My guess: John Carmack was given a lot more leeway than the average employee, given that he’s John Carmack and all, and with his aeronautics company got used to working on whatever interested him. As long as he was working for Zenimax no rifts over property rights would come up, no one wants to piss off talent. Once he left though they have no reason to keep giving that leeway, and want whatever money they can get. With Facebook that might be a lot of money indeed.

    There’s one other thorny issue, the idea of standard practices or the legal idea that when changing companies you cannot take all the expertise of one corporate culture and give it to another. John Carmack very well might have taken the skills and techniques that are central to Zenimax and Id’s design, but only because he invented them. How you disentangle that is beyond me.

    • Shamus says:

      I agree, they may indeed have a case. I think it’s obvious they’re doing this just to get in on some equity in Oculus and not because they are actually defending the interests of their company in any way, but that doesn’t mean their claims won’t hold up in court. It’s a pretty common source of confusion in business: Just because you have the right to do something doesn’t mean it’s the right thing to do.

      “Carmack very well might have taken the skills and techniques that are central to Zenimax and Id’s design, but only because he invented them. How you disentangle that is beyond me.”

      Same here. Making it even more complex: Even if there was a definitive answer, how can the average jury be expected to reliably understand and follow it? The whole “what is technology?” question becomes very murky when you’ve got hardware, software, and general human interface R&D all going into a single half-finished product that dozens of people have contributed to.

      • MichaelGC says:

        Well, at least we know that, somewhere, some lawyers are rubbing their hands with glee.

      • Klay F. says:

        I doubt it would happen, but I’d like Carmack to just say, “If you wan’t in on the Oculus pie, you can have it, but you also must take my failed Aerospace company off my hands too since you apparently own a portion of everything inside my head.”

        • Steve C says:

          To be fair his aerospace company was a hobby. Apparently it was his Ferrari budget but he thought he could do more for everyone if he went into rockets. So if it did or did not make money it was still accomplishing what he wanted- playing with cool toys.

      • HiEv says:

        “Just because you have the right to do something doesn’t mean it’s the right thing to do.”

        Great line. I wish more people understood that.

      • Decius says:

        I think we could go into labor law here; if Caramack wasn’t getting paid for the time he spent thinking up ideas for VR outside the office, then ZeniMax owes him a metric ton of back overtime!

        Under US law, if your employer permits you to do your job outside of your scheduled hours, they are required to pay you for it.

        Of course, they could play the ‘FLSA exempt’ card, and would probably be legally sound in doing so- but it would bring out what Caramack’s job description actually was into the legal record, which could then be used against them.

    • Humanoid says:

      They had better make sure the Oculus Rift has no bugs then, because creating bugs is quite clearly ZeniMax’s corporate expertise.

      • The Rocketeer says:

        Actually since they’re a publisher, they pay others to make bugs. So they’d have to pay into Oculus every time another motion sickness quirk crops up.

    • MrGuy says:

      My favorite riff (ha!) on this topic is the time John Fogerty got sued for plagiarizing himself.

      What we’re basically talking about is granting rights to a time-specific slice of the contents of someone’s head and saying they can never think those same thoughts again because those thoughts are now your property.

  12. Jack of Spades says:

    FWIW, I’m more likely to read your articles on the Escapist precisely because they’re text. Most video so-called entertainment on the internet is just people shouting things that wouldn’t have been compelling if written and aren’t any more interesting shouted. Yahtzee is an exception, of course.

  13. TomCS says:

    This heavily reminds me of Mattel suing MGA Entertainment over the Bratz line.

    Mattel sued MGA saying that the creator of the Bratz line came up with the idea of it while working for Mattel, what exactly the “idea” entails I couldn’t say since something must’ve been written down. Though reading about it now on wikipedia it sounds like the creator didn’t even have drawings of the dolls while he worked there.

    Mattel eventually lost but at certain points they were awarded 100 million dollars and the entire copyright on the Bratz line.

    Unfortunately it’s not a guarantee Zenimax is going to lose.

  14. TSi says:

    What about the fact Carmack presented a prototype at E3 2012 and QuakeCon 2012 ?
    Isn’t this related to the ZeniMax bullshit ?

    • Shamus says:

      I literally didn’t know about that until the editor added the note to my article. I read lotsa stuff about Oculus and about this suit, and I managed to miss that detail entirely.

      Yes, I’m sure it’s the basis of their suit. It certainly makes their case stronger. Still, the point remains: They aren’t interested in the VR business at all. The worst thing they can say is that Carmack “stole” technology they don’t want and have no plans to use.

      It’s still just feigned outrage in an attempt to get their hands on Oculus stock.

      • Kian says:

        It doesn’t make their case stronger, because they have no case. You can’t strengthen something that doesn’t exist.

        Ideas and knowledge can’t be owned. They can’t be patented and they have no copyright protections.

        Specific expressions of those ideas and knowledge, such as procedures, inventions and writing, can be either patented or copyrighted (depending on their nature). Code has copyright, for example, and a particular device could be patented.

        Until you file a patent or write something down, saying “that’s my idea” means absolutely nothing. If you tell someone an idea you had and they go and implement it, you can’t sue them because “you gave them the idea”. It might have been originally your idea, but without copyright or patents to enforce they didn’t infringe on any rights of yours.

        Carmack showed a prototype VR headset. That shows they were working on something. The code that went into that device is copyrighted to Zenimax, but Zenimax didn’t file any patents. Without a patent, even if the Oculus was a direct copy of it they wouldn’t have a case, because copying something that isn’t patented is perfectly fine. And since Carmack is saying he didn’t use any code he wrote at Zenimax, and Zenimax isn’t arguing that he did, they have no case.

        Probably just the lawyers doing some busywork to justify their salaries. They have to know they have no case and no chance against Facebook’s pack. Maybe hoping for a settlement, if they can convince Facebook that the court battle would be more expensive than just paying.

  15. Rick says:

    Most of my contracts have stated that anything I write that is based on or derived from anything from my job belongs to them… Meaning I could still tinker with my own stuff and even work on open source etc without conflict.

    Though I did build a very handy tool in my own time then took it into work (therefore making it theirs) then got made redundant shortly afterwards.

    The restraint of trade (can’t leave for a similar job) rule is pretty worthless here in NZ as you can argue that it’s the only way you can make a living. And that holds up in most cases, from what I’ve heard.

  16. Alex says:

    While I was initially inclined to say “A pox on both your houses!” due to the whole grass-roots-investment-then-whore-yourself-out-to-Facebook thing, I have to side with Oculus here. Laying claim to an employee’s “know how” is incredibly skeevy. They do know that slavery is illegal, right?

    • Abnaxis says:

      Given the proximity of the two events, this kind of makes me wonder whether the Facebook buyout of Oculus precipitated the lawsuit, or whether Oculus agreed to let Facebook buy them when negotiations with Zenimax looked like they were going sour.

      Not that I think this was the SOLE reason to agree to the purchase, but I wonder if it was a factor?

  17. kingmob says:

    I am honestly surprised by the amount of people that even take a sort of indifferent stand in this. People seem to strongly believe that if something is in a contract, it is somehow ‘right’, at least legally (in this case it seems a lot of people sign a contract that basically has a clause that the company owns them).

    I have a problem with both of those viewpoints. A contract should never be binding just because you signed it. The employee/employer power balance is rarely equal, so the employee needs protection against some of the worst practices.
    And legally ‘right’ can still be ‘wrong’. That should be blindingly obvious to people (with the whole slavery history and all) but this appears to be a bafflingly common standpoint for Americans at least.

    And as you said, this is obviously a ‘wrong’. Zenimax can and should never be allowed to own the ideas in Carmack’s head or the skills he has acquired. The whole story just screams bad management. It looks like they overestimated the value of Doom3 relative to the Rift, threatened to strong-arm Carmack’s involvement if Oculus didn’t cave in and then actually made good on their threat. And then they predictably lost Carmack and were left with nothing.
    Sounds to me like someone high up is trying to cover up his own mess. Obviously Carmack is worth more than anyone there at Zenimax, they/he/she apparently just didn’t realise it.

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