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 this series is intended as opinion commentary, not authoritative historical record.
Carmack posted a long list of his grievances on Facebook. Obviously he’s going to be biased towards his own side, but I still think it’s worth reading what he has to say because he gives us a candid view of some of the tactics that Zenimax employed. If one of the suits at Zenimax had bothered to post their candid reactions directly to Facebook rather than filtering everything through PR and legal, I’d have been happy to look at those as well.
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 presentedAssuming Carmack has described it accurately, of course..
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.
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:
- 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 same conceptual goal then it might not be possible for them to differ beyond things like spacing and variable names.
- 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
- Oculus was ordered to pay Zenimax $200 million for violating the non-disclosure agreement Oculus co-founder Palmer Luckey signed with Zenimax.
- 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. )
- Former Oculus CEO Brendan Iribe was ordered to pay Zenimax $150 million for false designation.
- Oculus cofounder Palmer Luckey was ordered to pay Zenimax $50 million for false designation.
That is a Large Number of Dollars!
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 must have been brief and small-scale. Moreover, I’m having a hard time seeing how that confusion could have 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 hurtAside from shareholders, and I’m not really worried about them. If you’ve got your money in a behemoth corporation taking part in a massive legal tussle, then you’d better know what you’re doing.. 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 come 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.
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 focused 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.
 Assuming Carmack has described it accurately, of course.
 Aside from shareholders, and I’m not really worried about them. If you’ve got your money in a behemoth corporation taking part in a massive legal tussle, then you’d better know what you’re doing.
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