Zenimax vs. Facebook Part 5: The Verdict

By Shamus
on May 30, 2017
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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 this series is intended as opinion commentary, not authoritative historical record.

Carmack’s Reaction

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.

Don`t you see, man? You gotta  look for the patterns. Don`t let them fool you. If you look close enough you can see it`s all connected.

Don`t you see, man? You gotta look for the patterns. Don`t let them fool you. If you look close enough you can see it`s all connected.

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 same 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

Can we find the PLAINTIFF guilty? Are we allowed to do that? No? Well can we kick him in the shins?

Can we find the PLAINTIFF guilty? Are we allowed to do that? No? Well can we kick him in the shins?

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!

"I want my two dollars!" Wait, wrong meme.

"I want my two dollars!" Wait, wrong meme.

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.

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 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.

-Shamus Young

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Footnotes:

[1] Assuming Carmack has described it accurately, of course.

[2] 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.


2020201979 comments? This post wasn't even all that interesting.

From the Archives:

  1. Daemian Lucifer says:

    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.

    Ok,this confuses me.Isnt the point of a jury to be tried by “your peers”?Doesnt that mean that in a case involving computer code the jury has to be selected from computer coders?How can a random bus driver be Carmacks peer?

    Also,isnt the jury selcted by both the prosecution and defense reaching an agreement?So why didnt the defense select someone more knowledgeable?All of the things Carmack said about that “expert” just makes me think why the defense lawyer didnt voice Carmacks opinions and destroyed the “experts” analysis.

    • Jonn says:

      Also,isnt the jury selcted by both the prosecution and defense reaching an agreement?

      Short version is that, generally, prosecution and defense can veto a potential jury member, but not select a candidate they think is suited for the case. There is some logic to not letting a clearly biased side pick who is included, with quite a few flaws attached.

      • Falcon02 says:

        Yeah, my understanding is there are valid reasons to reject a candidate “with cause” (ie. they’ve stated they can not judge the case fairly).

        But once that process is done, both sides can reject some number of jurors without giving a reason (it just has to be non-racial, and only if challenged).

        I was “selected” for a Jury years ago in a driving while intoxicated case… However, several years prior I had been hit by a drunk driver, though I had stated that I could be fair in the case as I had no ill will towards the person who hit me. So after filing us all into the Juror’s box, the Judge went down the line of Jurors, and I was dismissed and an alternate took my place. The lawyers did not have to explain why I was rejected, but it was fairly obvious.

        • djw says:

          I was called in for jury selection 10-12 years ago. If I recall correctly it was a rape case and it involved DNA evidence.

          The defense lawyer basically said NO to anybody who had any degree beyond an undergraduate degree. I think that he would have rejected undergrad degrees as well, but this was in Ann Arbor Michigan, so everybody in the room had at least an undergrad degree.

          One of the first people called up was a physicist from Africa that was doing a post-doc at the university. The “throw everybody with advanced degree” pattern had not been established yet, so he told a story about a time when he had been racially profiled for a speeding ticket. (I asked him about it afterwords and he told me he made it up). He could have just said “phd” and got tossed right away.

          I was pretty sure the defense attorney would toss me as well, but it was actually the prosecuting attorney that rejected me, because I mentioned that I play hockey with one of the policemen involved in the case.

          • Daemian Lucifer says:

            The defense lawyer basically said NO to anybody who had any degree beyond an undergraduate degree.

            Thats interesting.I wouldve thought that thanks to all the shows like csi most people believed that dna is always reliable and that it would take more knowledge of lab procedures in order to call the reliability of such evidence into question.

            • Abnaxis says:

              I don’t know if this applies to DNA evidence, but I’ve heard that for some forensic evidence it’s actually illegal for the defense to bring up the false positive rate as part of a defense strategy (in the US, at least).

              • Rodyle says:

                What? That’s insane.

                • Abnaxis says:

                  My rough, IANAL understanding of it is that the judge takes the error rate into account when he or she admits the evidence, and that an attorney bringing up the error rate after that as an argument for their case is essentially the same as trying to convince the jury that the judge can’t do their job.

            • djw says:

              I have no idea what happened in that case after I was tossed out of the pool, but I talked to lawyer friend of mine about the process later and he said that it might not have gone to trial at all. Instead, the two attorney’s may have just been sparring with each other to gain advantage in the plea bargain negotiations.

          • bubba0077 says:

            My mother, who hasn’t attended college at all, says she was once dismissed from a jury because *I* was pursuing an advanced degree.

    • Thomas says:

      I’m fairly sure ‘peers’ never means anything more than ‘fellow citizens’. Whilst I have some doubts about juries, I am pretty glad about that. My belief is juries are meant to protect you from a system being corrupt – if sometimes law is decided on reasonable interpretation of events then you can get 12 random people to do that instead of professional judges.

      If those 12 people weren’t random, but active members of whatever community, I don’t think that would work.

      In technical cases, I think the way this is meant to work (in practise) is that Oculus should have paid for their own super biased expert witness who would have done an equally strong armed job of presenting their side of the argument.

      As I said, I do have some doubts about juries – who can tell which expert is actually making the sensible arguments? But I wouldn’t like to be an academic accused of something or other who could only be tried by other academics. Academia can be a close knit world and there’d be lots of potential conflicts there that I don’t know a solicitor could veto their way through. But maybe that is still better than having 12 random people decide finance law. I’ve heard horror stories from people who did jury duty on what the other jurors based their decisions on.

      • Daemian Lucifer says:

        Academia can be a close knit world and there’d be lots of potential conflicts

        I agree,but like Ive mentioned below you could still solve this problem by going cross field.Sure,your fellow coder from your city may be biased,but what about an aircraft engineer from a different city(or maybe even state*)?They wouldnt know the code at a glance,but they would know how to read technical stuff way better than random joe average.

        *Yes,the logistics of assembling such a jury would be problematic,but seeing the sum involved in a case like this,it doesnt seem like an insurmountable obstacle.Having a fair trial should be more important than convenience,after all.

        • Syal says:

          It also involves tying up high-skill people for longer periods of time. If the jury has to be 12 engineers, that’s twelve engineers (plus the backups) out of the work force for the length of each trial of that type. The jury also can’t ask questions directly, so the evidence presented isn’t going to directly benefit from the higher level of expertise.

          “Your peers” also means “members of the local community”, so going out of city or out of state might cause legal problems there, but I don’t know why the trial was in Texas so maybe it wouldn’t.

          • Viktor says:

            The trial was in Texas because until a very recent law change, patent lawsuits could be filed essentially anywhere in the country, so all patent lawsuits just happened to be filed in the jurisdiction of an extremely favorable judge in Marshall, Texas. Odd how that works out.

            • Supah Ewok says:

              Wrong. At least in this case. The lawsuit took place in Dallas, TX. Because that’s where id Software is.

            • GiantWalrus says:

              Not particularly. The EDTX boom started back in 2001, which was about ten years before Rodney Gilstrap and Roy Payne (who now, between them, hear about half of the patent cases, and who are typically the ones accused of being Patent Satan) even got on the bench.

              EDTX has been popular for the same reason that EDVA and D.Del. are popular — they have a well-developed set of patent local rules and are “rocket dockets” that actually take cases to trial within the decade (which plaintiffs of course like, because patent litigation is slow enough already, and defendants of course hate, because it’s in their interest to stall things out as much as possible). Defendants try to switch everything to NDCal for the same reason.

              EDTX was actually even plaintiff-favorable in that they would do things like set a date for a Markman hearing (a type of hearing where the patent is legally interpreted/construed) within the first forty-five days as a rule and refuse to move it. You’re right in that TC Heartland will muck this up, but IIRC Delaware has similar rules now and everybody is incorporated there anyway, so realistically the only people that will notice the change in the law are the hotel chains in Marshall, Texas.

      • DanMan says:

        Many laws in America have the idea of what a “reasonable person” would do. For instance, you are not guilty of robbing a bank if someone holds a gun to your head while you do it. However, you could be found guilty of robbing a bank if someone sends you a letter saying “I will kill you if you don’t.”

        This is where the law comes down to if a “reasonable person” would feel their lives in serious jeopardy. A “trial of your peers” is supposed to be 12 “reasonable people” who could interpret what THEY would do in that instance and, thus, what a “reasonable person” would do.

        Unfortunately, laws are laws and are not written for individuals. So if a police officer is caught speeding off duty, they don’t get fined any more than a regular citizen, even though the police officer has a more in depth knowledge of the traffic laws. In the same way, a regular Joe who violates an NDA that he signed should not be held any differently than the lawyer who wrote it (according to the current American legal system).

      • Abnaxis says:

        My belief is juries are meant to protect you from a system being corrupt – if sometimes law is decided on reasonable interpretation of events then you can get 12 random people to do that instead of professional judges.

        What you’re talking about sounds like jury nullification–which is legal, and surely plays a large part in verdicts that come out of the courts, but really REALLY rubs me the wrong way.

        I think juries are there because there are always fiddly judgement calls to figuring out whether the law was actually broken, not to override legislation from the jury box. For example, if the law says you have to be insane for an insanity plea, the jury is there to decide if you are sane. They aren’t there to decide whether the law you broke is reasonable.

        From that standpoint, I’d say I would much prefer it if we could get more expertise in juries, rather than the “grab a crowd of people and let the lawyers eliminate them down to 12” system we’ve got today.

        • Syal says:

          I’m sure this counts as politics, but I’ll say I disagree unless there’s also a substitute for jury nullification.

          • Abnaxis says:

            Yeah, I wasn’t sure about it before I posted whether it counts as politics, but I think it’s OK since it’s not so much a red team/blue team sort of politics, as long as we don’t go down that road? There’s plenty of reasons why both sides of the divide can be for or against nullification.

        • Thomas says:

          I’m not arguing for nullification. Judges can and do make the same fiddly judgement calls and the same “Well there was a gun to his head scenarios”. My belief is, that the reason you have a right to ask 12 random people to do it instead of a judge (who is trained to do it) is a counter-measure for the judicial system. If you don’t trust a judge to interpret your case, you can ask for 12 peers instead.

          Especially as, for most of history, the past more so, judges have come from very particular classes of society. When all judges were landowners, I can see why you might value the right not to have the judge making the fiddly judgement call.

        • Sabrdance (MatthewH) says:

          Sort of yes and sort of no. Juries developed in England because of the lack of a central court system -they had only the lightest of Roman law under their system. There was a patchwork of laws across the land which the monarchs began unifying more or less around the time of Henry II. One of the ways they did this was having a panel of judges hear cases when the king wasn’t present to hear the case in person, but this was widely abused by both sides. Edward II could have his chosen lords convict Warwick and Lancaster, and they retaliated by convicting Piers Gaveston and executing him in the 1300s.

          By the 1600s juries were being used to decide whether royal laws were valid -and many juries refused to convict if the laws were considered unjust or if the law was a decree and hadn’t been run through parliament. It was one of the things that sparked the civil war. Unsurprisingly, the parliamentarians rather liked the jury system, and it also fit well with their religious beliefs. Puritans would continue using juries into the 18th century for church discipline trials -such as the decision to remove a pastor. The main formal objection, though, was that royal courts were not legal institutions, but rather arbitrary. For all the good that the Star Chamber had done in the past convicting high lords, it was now being abused -whereas local juries were not permanent, and because they would have to live in the jurisdiction afterwards, were considered less arbitrary and more lawful.

          In the colonies and the US, the jury trial issue largely stems from the fact that George III abolished it in certain places, substituted military courts, or tried to take Americans to Britain to stand trial while also claiming the right to call back British people accused of crimes to stand trial in Britain before more sympathetic courts, even after American courts and juries acquitted the soldiers accused at the Boston Massacre. On the civil side, Americans were also ticked at British manipulation of their charters, again done by arbitrary action of the king.

          So we stuck it in the 6th Amendment to make sure the President couldn’t pull stunts like that on criminal matters, and in the 7th amendment to make sure that federal courts couldn’t override state court findings in civil matters without a generally accepted good reason.

          The states then promptly discovered the virtues of bench trials and we’ve had the bifurcated system ever since.

        • Boobah says:

          Jury nullification is legal only in the sense that you can’t be charged for rendering a ‘not guilty’ verdict no matter how guilty the defendant appears to anyone else.

          The little brochures that they give out to prospective jurors claim that jurors must vote to convict if they have no reasonable doubts that the defendant did what the judge claims the charge is.

          And informing juries that they may vote not guilty by way of bad law (seriously, are you going to vote to execute someone for selling booze on a Sunday?) is considered jury tampering.

          • Daemian Lucifer says:

            The law does not have to be bad in order for jury nullification to be a good thing.Its just that the law does not predict all of the situations that could arise and all the mitigating circumstances that can lead to people breaking them.

    • Bloodsquirrel says:

      Keep in mind that the phrase “jury of your peers” dates from an age where there was more rigid social stratification. It dates back to the Magna Carta, wherein English nobles established certain rights for themselves that the King was bound to uphold.

      The phrase doesn’t actually appear in the US constitution, which instead calls for “an impartial jury of the State and district wherein the crime shall have been committed”.

    • Alex Broadhead says:

      A jury of your peers just means ‘fellow citizens’. And, actually, it’s kind of worse than that, as it really means ‘fellow citizens who couldn’t get out of jury duty and aren’t disqualified by one side or the other for being ‘biased”.

      • Richard says:

        Originally a “jury of your Peers” was exactly that – a jury made up of other “landed gentry”, otherwise known as Lords of the land.

        Yes, “Peers” really did mean Members of the House of Lords – they were also the only people with the vote at the time.

        Which is of course why the US doesn’t use that phrase, it’d be nonsensical.

        These days what it actually means in the UK is “someone registered to vote in parliamentary or local government elections”. In fact, they don’t even have to be citizens of the UK – EU, Irish or (some) Commonwealth are also able to be called up.

    • Steve C says:

      How the rest of the world handles the issue of juries in technically complicated cases like this is that juries aren’t used at all. Only the United States makes routine use of jury trials in a wide variety of non-criminal cases. Other common law legal jurisdictions use jury trials only in a very select class of cases that make up a tiny share of the overall percentage of cases. For example I don’t think this case would have been an jury trial anywhere in the European Union. A jury is the wrong tool for this job.

      • Sabrdance (MatthewH) says:

        I’m actually surprised this went to a jury. In civil trials, you have the right to a jury trial only at the federal level. State courts don’t have to have them. This was a federal court, so the option was there, but in federal civil courts, a bench trial is standard unless the defendant requests a jury.

        Which is to say, in a highly technical case, Occulus’s lawyers, wanted a jury. That seems like a highly dubious decision.

        • Thomas says:

          That backfired for them

        • Abnaxis says:

          I suspect the decision hinged largely on the venue. If you’re stuck between a choice of an consistently unsympathetic judge or the chaotic inconsistency of a jury, I can see choosing the jury.

          Besides, it’s not like the judge is going to know how to look at code analytically either.

          • Nimas says:

            Except for that one awesome Judge (Judge Alsup I believe) who during the Oracle v Google trial revealed the fact that he knows coding, and specifically called out Oracle’s lawyer for claiming that Google had copied some specific bit of code “because they wanted speed”.

            Basically he pointed out that anyone could have just as easily written that code, whether it was him, the judge or a highschool student with basically the same speed.

    • Taellosse says:

      “Peer” in the context of a jury does not mean “person of similar background.” It means, “fellow citizen.” Which is why both sides in a jury trial get to eliminate jury candidates based on virtually any criteria they feel will help their chances of winning, up to and including relevant expertise.

  2. Jonn says:

    Thanks for the simple to read version of this.

    Small adjustment:

    If I sue Facebook and win, shouldn’t my award from from Facebook’s coffers and not Zuckerberg’s personal bank account?

    Edit: also, in the header disclaimer:

    I’ve done what I could to be accurate, but series is intended as opinion commentary, not authoritative historical record.

    might read better as ‘this series is intended as’ etc.

  3. Baron Tanks says:

    And thank you Shamus, to make something so inherently uninteresting (to me, on a personal level anyway), an interesting read. I enjoyed this, even though you’re still totally a John Carmack fanboy ^_^

    Looking forward to what’s next in the Tuesday slot, much love.

    *Off topic: I’ve been avoiding bringing this up since I understand why it’s on hold, for obvious reasons, but is the DieCast due to return in some form in the near future? While I’m still getting my fix through the Spoiler Warning channel, I’m also curious on your takes and whoever you bring on for the news and what not. Hope you can line some people up soon!

  4. Daemian Lucifer says:

    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.

    You could still select scientists from other fields.A professor of archeology may not understand the intricacies of particle physics,but they still understand the scientific method and paper publishing,which would be key for any such conflict.

    • Nixorbo says:

      Assuming you have scientists due for jury duty available in the district where the trial is being held.

      • Supah Ewok says:

        Also assuming that the jury selection process knows what your job is when looking for jurors. Hint: they don’t. I was just called for jury duty a couple weeks ago, and my paperwork included stating my current occupation.

        Juries are kept random-ish so that nobody can say that the state had a bias. You try to say, “for this trial, we’ll have a jury of scientists”, then first, the state has to determine what a scientist is. Is it anybody with a PhD? What about just a masters? Which fields count? Any answer to these questions can and will be contested as having bias.

  5. Thomas says:

    This was a really interesting series! I didn’t even know how Zenimax was suing Oculus and I’m doubly surprised to find out it was more reasonable than expected – especially since it sounds like the “non-literal copying” charges failed?

  6. Daemian Lucifer says:

    It’s a strange verdict because Zenimax seems to have whiffed on its major claims, but then they got a pretty big payday anyway.

    And thats the reason why you dump on so many charges in the beginning,so that at if only a few of them stick,you still get your payoff.At least that part is reasonable.

    • Hal says:

      There’s actually a lot to be said for that approach. Especially in criminal matters, the idea is to take advantage of the jury wanting to reach a “middle ground.” In other words, you convince the jury that, if there are so many charges against the defendant, then they must be guilty of something. So maybe you don’t get the worst charges, but the jury thinks, “Well, we’ll just convict of something lesser. We’re being lenient in this way.”

      Meanwhile, middle ground sends a person to jail for five years, whether they deserve it or not.

      • Boobah says:

        There’s also the problem with double jeopardy; as I understand it, if a prosecutor brings a murder charge against someone and the defendant is acquitted the prosecutor cannot then charge them for manslaughter for the same death. So the prosecutor stacks both charges into one trial since he can’t be sure the jury will agree that there was intent (and the multiple charges implies that the defendant must have done something wrong.)

    • Syal says:

      It kind of sounds to me like they agreed that Oculus copied code, but the penalty for that would be handing control to Zenimax, so to avoid a too-stiff penalty they held them not guilty on that but puffed up the other fines.

      Assuming the jury had a say in the amounts; I know for criminal sentences that’s solely the judge’s call.

  7. Daemian Lucifer says:

    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.

    This kind of reminds me of a story I read some years ago when a ceo of one company was fined a huge sum(100000 euros,if I remember correctly)for speeding.Basically it was due to the law of that country(norway,if I remember correctly)that decides the fine based on how much money the person earns.Which to me looks like a good system.

    • Viktor says:

      I think it’s Sweden, but yeah. If the point of speeding laws is to reduce accidents, then the fine should be painful for anyone caught breaking the law but not crushing. That will be a very different amount depending on how much the law breaker makes.

  8. Daemian Lucifer says:

    Actually, why is the verdict targeting specific officers in the company? Is that normal?

    Im not sure that it is,but it should be.The ceo of a company should carry the most responsibility for companys failures because they get the most rewards for the companys success.

    • Sabrdance (MatthewH) says:

      Doing some quick looking, Oculus is a Limited Liability Company (LLC), so that would normally protect the CEO from personal liability. That’s the whole point of the LLC. Corporate veils can be pierced in certain circumstances -where federal law expressly permits it for fraud or corruption, when officers mix their assets with the company, or when the company is “closely held.” That Iribe put that much work into keeping an ownership stake in the company (as discussed in earlier entries) would suggest he got hit on the third exception, and possibly the first and second, too for the fraud inherent in the false designation complaint.

      Oh, I guess I should note, I’m not a lawyer, I’m a professor of government -so I know a bit about this, but it isn’t my specialty.

  9. Alex says:

    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. […] But if the description is larger than the code, then it says one of two things:

    [something with font size]

    I’m pretty sure what Carmack actually means here is that an abstraction, by definition, has to be shorter in terms of encoded information [think: Shannon] that the thing it abstracts from. So what Carmack is saying here, is that what the expert witness presented as abstractions cannot possible have been abstractions of the code shown because they were longer, after you control for things like font size and the fact that prose has lower information density than source code when it comes to describe algorithms. So, i think that is the point, we can tell that the alleged abstactions were in fact less abstract than what the code was doing. The whole argument, according to Carmack, revolves around the idea that two pieces of code might be identical after a number of abstracting steps and to make that argument you should be doing correct abstractions. Which, so I understand it, Carmack thinks the expert did not.

    Naturally, short of asking Carmack, we will never know who got it right, but I wanted to offer that alternative reading anyway.

    • Echo Tango says:

      The font-size reading is the correct one; Just look at the next section from Carmack: “blew each of them up across several slides so you could actually read them”.

  10. Jack V says:

    I feel like the non-literal copying is a category which should exist (whether or not it, or other kinds of copying of source code, should be prevented or not).

    Like, compare: (a) you describe in detail how you implemented something, two different people implement their own separate versiosn of it and (b) two people read the source in detail, and then write their own separate versions of it. I think the second pair will be a lot closer together and closer to the original, and, an *honest* expert could make a fairly reliable determination in telling those apart. Things like, things that are *not* crucial to the functionality, do they just all happen to be the same. Things like, did they use a similar sort of breakdown of which function is in which file? Similar choice of which code is abstracted into a function and which isn’t? Similar naming conventions?

    If a disaster wiped out our code and all backups, I’d feel I got a lot more value getting someone who’d worked on the original to rewrite it, than someone who’d talked it through in detail but never seen the code.

    But this doesn’t really make it to court. For better or worse, the adversarial system encourages doing what works, not what’s fair :(

  11. Tom Bartleby says:

    Thanks for the kind mention, Shamus!

    Bartleby’s Backpack is pretty new, and I’m definitely open to feedback, either here or—even better—over there. I’m interested in both stylistic comments (is everything readable? any conventions I’m not following? any tips for how it could look better/more interesting? etc.) and substantive feedback (should the posts be longer/shorter? any thoughts on topic selection (does it work to merge science/rationality posts with gaming/nerd culture posts)? would it be better to run multi-part series consecutively as I have done so far or to run them once a week the way Shamus does?, etc.)

    If anyone has any ideas/comments, I will definitely listen and take them to heart.

    • Hal says:

      I clicked through and read your Thieves Guild series. I don’t know if I have any specific suggestions for the blog in general, but you asked about whether the blending of topics works or not. It really depends on what you’re trying to do here. That is, why are you writing, and who is your audience?

      I’ll use myself as an example here. I’ve kept a blog for 14 years now. In the beginning, it was mostly composed of poorly written political thoughts. Somehow that garnered me a (very small) audience. The content changed frequently over the years as I added thoughts about video games, philosophy, and a variety of other topics. In most recent years, my audience dwindled, as did my output, but my satisfaction with the blog increased. Why?

      Well, I realized that the blog was probably never going to become some cultural success. Probably not even a minor internet success. But I liked writing, and sticking to a few things that really interested me, even if they weren’t necessarily complementary topics, made the writing easier and better.

      I’m not sure there’s a huge audience out there for people who want religious thought and table top RPG talk, but it makes me happy all the same.

      So for you, try to figure out what you want to accomplish. If it’s just a “because I feel like it” hobby, combine topics to your heart’s content. Shamus writes about whatever interests him, and his blog is better for it (though I’m sure the fact that it’s also his job now affects matters to some degree.) If you’re trying to turn this into an actual gig, a unifying theme to the blog would certainly make it easier to attract a regular audience, but you’re most likely going to be using the blog as a portfolio to show some site or outlet to which you submitted an article.

      • Tom Bartleby says:

        Thanks for this, and for your comments on my posts. I feel like we got a good conversation going and appreciate your perspective. And I definitely want to check out your blog soon—religious thought and table-top RPG talk both sound intriguing to me.

        You’re right that I do need to decide what I really want out of a blog. I should probably have a “what I want out of this blog” post at some point; I’ve got some ideas for one, but thought I’d put that on the back-burner until I have enough of a blog going to justify a little naval gazing.

        I think the short version is that what I like most about blogging (about all writing, really) is the process of taking something very complicated and explaining it in a very understandable way. That process is, by itself, something I find very rewarding, so I’m not necessarily trying to build up a massive audience—especially not if it’s at the cost of not getting to explain esoteric areas of interest.

        At the same time, the big thing I’m going for is that experience of explaining something new, of having someone understand something they didn’t get before. To the extent that I don’t have any readers, I obviously can’t ever cause someone to have that flash of novel understanding. I certainly wouldn’t enjoy “blogging” into a locked diary, for example.

        So there’s something of an inherent trade off there. And one that I’ll have to put more thought into.

      • Squash says:

        Link to your blog?

    • Syal says:

      Might just be a familiarity thing, but I think moving the next/previous buttons up above the comments makes the post flow better.

  12. kdansky says:

    Every time I read about US court cases, I am baffled how little they differ from the overly dramatic TV shows that depict them, like The Good Wife. Just stop with the “jury of idiots” system and a lot of problems would go away.

    • Blackbird71 says:

      Having served on multiple juries in the U.S., I would contend that by and large, U.S. court cases are absolutely not anything like what is seen in the “overly dramatic TV shows.” Keep in mind that when you read about these high profile court cases, you are often doing so through our overly dramatic news media, which competes with our overly dramatic entertainment outlets, and so often carries some of the same characteristics and styles of portrayal, so you’re probably still getting a hyped and slanted version of the story.

      • djw says:

        Also, there must be a selection effect. If you read about the case in the news that means that *something* must have happened to make it interesting to somebody. That means its probably not a typical case.

  13. Noah Gibbs says:

    The jury may even have been selected specifically to remove people with any sort of programming expertise

    Without question. Lawyers specifically look for jurors who will *not* be tempted to act as their own experts. This makes the experts called by the lawyers much more effective. Lawyers want a predictable trial which depends on its “inputs” more than they want accuracy, by and large. “Accuracy” is an abstract, and both lawyers are supposed to attempt to maximize the chance that their client will win. Neither lawyers really wants to introduce a bunch of random noise (“accuracy”) into the odds of winning.

  14. Falcon02 says:

    I do think this post could use an additional disclaimer that Carmack is obviously a biased party in this case and his “reaction” and comments are subject to that bias. However, we have no reason to doubt the accuracy of Carmack’s account or his analysis, so it is being taken in this article largely at face value.

    If only because, I doubt Carmack would paint a rosy picture of Zenimax’s arguments even if it was well presented. Of course, the facts of the case as discussed previously (as well as the other lawsuits you mentioned) doesn’t present Zenimax in the best light to begin with.

    Overall, an interesting read, hadn’t followed this much, but I enjoyed your overview of it.

  15. djw says:

    Haven’t finished reading the entire article yet, but I do want to comment on the “particle physicist trial” example because I have a bit of personal expertise on the topic (ph.d in particle physics).

    Particle Physics is a subject that is rife with horrible jargon. I went to *many* bad talks as a graduate student where the speaker would just talk at us with acronyms and abstract phrases. I eventually got to the point where I knew what the acronyms were and I could follow most of the bad talks even though they were bad.

    However, in just about every case there was a way to say the same thing in *almost* plain English. The speakers who spoke in jargon didn’t do it because it was the only way to say what they needed to say, they did it because they were bad at communicating .

    I am fairly sure that you could construct a non-biased expert jury for a particle physics trial by selecting physicists from different fields to sit in the jury box. Actually, you could probably put some programmers and engineers in the jury pool as well and still have a mostly unbiased group that is nevertheless capable of understanding most arguments that would have relevance in a trial between experimental particle physicists, if they were presented in clear terms instead of jargonish bullshit.

    If the trial is between theoretical particle physicists just put mathematicians in your jury pool instead. (I am an experimentalist, but I have been to talks by enough string theorists to conclude that they vary from “full of jargonish crap” to “good communicator that speaks in plain english” in more or less the same way).

    • djw says:

      On a tangential note, I have been trying to think of a trial that would involve particle physicists that would actually be about particle physics.

      Recently a colleague of mine told me that one of the principles on his experiment (from a different university, on a project that involves 10-20 labs/universities) was implicated in a scheme to steal some or all of the grant money earmarked for his universities contribution to the project. This is obviously something that could go to trial, but I think the type of experts you would need in that sort of trial would be accounting experts, not physicists.

      There are not any practical ways to murder somebody with particle physics.

      Maybe some sort of sabotage? I have heard allegations that Nobel Laureate Sam Ting used to urinate in an adversaries’ work area whenever he thought he could get away with it, but again that’s more of a problem for cameras and eye witnesses to solve than people with physics expertise.

      • Shamus says:

        “There are not any practical ways to murder somebody with particle physics.”

        You’re saying Star Trek has been LYING to me all these years?!?

        My stab at coming up with a particle physicist trial:

        If it’s anything like Astronomy, I imagine there’s a terrible shortage of available hours on big equipment around the world. The number of people who want to do experiments will vastly outnumber the available equipment. So there will be some sort of convoluted peer-review thing to try and make sure the device gets used for the most worthy experiments. But then there’s some (allegations of) fraud where money is paid so an experiment can make it to the top of the list.

        It’s obvious to any physicist that the bogus project was unworthy of the time and of dubious value, but to an average numbskull like me, it’s going to be exactly as incomprehensible as any valid experiment. One expert tells me (in the jury) the bogus project is brilliant and the opposing expert witness says it’s a crock. Who do I believe? It might come down to who “feels” more truthful, which means whoever speaks with the most confidence and has the most friendly demeanor.

        You’d want to case to be decided by a knowledge check, but instead it’s charisma-based.

        • djw says:

          My experiment (well, the one I worked on with 400 other physicists) was the Collider Detector at Fermilab. If you were in the collision hall with the beam on you would fairly quickly absorb a lethal dose of radiation. I guess you could murder somebody by arranging to turn the beam on while they are still in the hall, but that would require fooling multiple people, and multiple safety features all at the same time. Impractical.

          I think that the scenario you outline happens all the time, except that it doesn’t turn into a trial, and the closest thing to a jury is the politicians in charge of funding. I don’t think this problem has a solution that doesn’t involve politics in some way (not necessarily in the left vs right sense, but in the people conspiring against each other sense).

        • Daimbert says:

          Discrimination cases and suits would probably fit better, since ideally in your example there’d be a money trail to follow, whereas in a discrimination case it would almost certainly come down to an argument over whether the access was denied because of the person asking, or because the project wasn’t as worthwhile as the ones that were selected.

      • Daemian Lucifer says:

        I can think of a case where particle physics would be involved:
        Two separate teams come up with an experiment that gets them selected as candidates for a nobel prize(big money and prestige).But,because some of them had talks between each other,the team leaders get into a debate which team actually came up with an idea and deserves the prize.Here,the knowledge of the experiment would be crucial in deciding which team understood the problem better and actually came up with a working solution first.

        • djw says:

          The Nobel committee determines who wins the Nobel prize. here is an outline of their procedure.

          They don’t actually mention it in the document, but I am fairly sure a dark, smoke filled room is involved at some point.

          In any case, they do at least solicit physicists for the nominations. I know a few people who have been asked to give their recommendations for nominations (but I am in absolutely no danger of ever getting asked for one myself).

          There are of course scandals involved. I took a class from Martinus Veltman (aka Tini) when I was a grad student (before he received his nobel prize). He was a good instructor during the 10% of class days that he actually taught us stuff. He spent the other 90% of his time complaining about not having a Nobel prize (I’m not joking, and only exaggerating a little bit).

          Apparently he and Gerard t’ Hooft worked together on “dimensional regularization” but could no longer stand to speak to each other, and were unwilling to give each other credit for the work they both did. Eventually the Nobel committee gave the prize to both of them, but I suspect that they would have gotten it earlier if they had not been dicks to each other.

          Also, dimensional regularization is a tricky topic to explain, so that might have had something to do with the delay.

        • djw says:

          My other comment is awaiting moderation, but in a nutshell, the determination of who gets the Nobel prize is done by the Nobel committee. As far as I know it has never been litigated, although I am sure that there have been plenty of angry words uttered on the topic in other forums.

        • Philadelphus says:

          Interestingly enough, the 2011 Nobel Prize in Physics (since there’s no separate prize for astronomy, cosmology gets lumped under physics) was awarded to two separate groups of astronomers who both independently discovered that the universe is expanding faster over time rather than slower as was previously assumed. I don’t know what degree of personal contact the two teams had, but you can bet they were both very much aware of each other’s published output at least. (I actually got to hear the first public talk Brian Schmidt gave after the winners were announced, which was cool.)

          Apparently the nominations for Nobel Prizes aren’t publicly revealed until 50 years have passed, though, so there’d be no way to know ahead of time unless someone leaked information (which might involve a court case, but only for breach of NDA or something).

          • djw says:

            Those two groups published their results within a few weeks of each other, so they must have at least been aware enough to have a paper ready to go when the other published.

            Actually, I know two of the guys on the SNAP collaboration (the experiment that Perlmutter led) so I will just ask them what they knew about Schmidt and Reiss next time I see them, if I think about it.

            I haven’t heard either of them badmouth those guys, even though one of them (one of my friends, that is) is a notorious gossip, so I’d guess the relations between the groups were at least neutral, if not friendly.

      • Sean Conner says:

        There’s a short story by Issac Asimov that involves, if not particle physics, some pretty heavy physics around anti-gravity and the death of a scientist that may or may not have been intentional.

        • djw says:

          I remember that story! (Vaguely though, since I read it 30 years ago). I thought it was neat, but it was definitely more fiction than science.

          I don’t *think* any of the physicists I know have murderous inclinations, but I’d bet they would use a gun if they did.

          Actually, Atomic physicists have tools slightly more suitable to murder than particle physicists. They tend to use fairly powerful lasers to study atomic transitions, and if you get somebody to look into it they could lose an eye!

  16. Falcon02 says:

    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 not sure I’d count on that, I’ve heard of cases (can’t think of a specific example though) where this gets overly simplified in follow-on cases where the plantiff gets presented as winning the lawsuit overall. And the nuance of how/why they won, that weakens their case in the follow on lawsuit gets lost.

    Though to be fair… if a Plaintiff tries to argue this, I would think any defense worth it’s salt would most assuredly point out whatever nuance that undercuts such a position.

  17. Hal says:

    Funny story, the “jury of experts” problem is exactly the case for peer review of grant applications.

    Let’s say I’m submitting an application for research funding to the NIH. My application involves my research into the immune systems of alpacas. It has a dozens of potential applications to human medical research and potential benefit for drug studies.

    Is it BS or legit? Does it deserve funding more than some other proposal? Well, that’s why we have peer review, where qualified people from around the country are brought together to make these determinations. It can get tricky, though.

    Maybe alpaca studies are an incredibly esoteric field; I’m one of five guys in the world who study it. This means that there’s a very narrow window of people who would even know how to evaluate the quality of my work or the feasibility of the experiments I’m proposing.

    Likewise, if it’s a narrow field, most likely all of us alpaca immunologists know each other. Perhaps they want to trash my application because we’re competitors. Perhaps they want to give me a free pass because we’re buddies. Maybe one of them is my former mentor, or I’m one of their former mentors. Relationships complicate things.

    Or, maybe I’m a huge influence in my field. Everyone who is anyone knows about Hal and his alpaca research. Of course my grant is going to get funded. Everyone knows the best research comes out of my labs; after all, I already get lots of grants, and I get published in all the biggest journals, and my lab attracts a great number of students.

    Now, I might run into some problems. Maybe one of the reviewers assigned to my application thinks alpaca research is a dead end. Do I address those concerns in my proposal? It doesn’t matter; it was “conclusively” shown years ago that alpacas are not worth studying, and that’s all we need to know about that. Not even worth reading the application.

    So, you can see how this sort of problem could be exacerbated when legal consequences and m/billions of dollars are at stake. It’s difficult to assemble a jury of experts and hope for a fair outcome.

  18. Blackbird71 says:

    A few points of order (disclaimer: I’m an engineer, not a lawyer):

    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.

    As with your previous article, you are still assuming that the charges of literal and non-literal copying are being applied to the same portions of code. While this is a possibility, it is also possible and likely that they are claiming some portions of code were literally copied, while others were “non-literally” copied. If this is the case, then had Zenimax been able to prove that Oculus had literally copied some code, it would not negate the possibility that Oculus also “non-literally” copied other code. The two charges are not mutually exclusive.

    From Carmack’s comments:

    That isn’t the language of scientific inquiry.

    No, but it is the language of the courtroom, and you can bet that any expert witness is either experienced enough to know this, or has been coached by the respective lawyer on how to phrase statements. If a witness portrays any degree of uncertainty on the stand, then it opens holes in their testimony which the opposition can easily attack and exploit. If however an expert witness is certain of their position, than rather than attack their testimony, the opposition really only has the option of attacking the witness’s credentials. If such credentials are solid enough to stand up to scrutiny, then the only remaining option is to attempt to counter with the testimony and opinion of another expert.

    I’m not arguing whether this is right or wrong, simply pointing out why the language of absolutes, while not appropriate for most scientific discussions, is a necessity in courtroom testimony.

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

    Except that you have to get all twelve coins to come up on the same side, or all dice to show the same number (depending of course upon the laws of the state where the trial was held; some states do not require a unanimous jury for civil cases, particularly if the monetary amount involved is small – I don’ tknow the particulars of civil juries in Texas). While a statistical possibility, it is a highly unlikely outcome when left to pure randomness. The fact that the jury was able to agree on a verdict would seem to indicate that there was not a wholly random element to the outcome, otherwise the defendant would have won the case. Such a comparison of a jury to a random event is inaccurate at best and disingenuous at worst.

    From Carmack’s comments:

    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.

    That’s a bit of an exaggeration/over-simplification, or else Carmack has a very broad definition of a “notch” of abstraction. If I abstract “Star Wars: A New Hope” by one level, I don’t immediately get to Campbell’s “Hero’s Journey”, rather I get to “Star Wars: The Force Awakens”. If I abstract it a level further, I get “Eragon”. A level or two further maybe gets us to Kurosawa’s “The Hidden Fortress”. It takes several degrees of abstraction before “A New Hope” is distilled down to just the essence of the “Hero’s Journey” and nothing more. The first few levels of abstraction are the realm in which copyright disputes exist (except of course in the cases where the same individual/company owns both works, i.e., SW:ANH vs. SW:TFA).

    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.

    It’s not a jury’s responsibility or purpose to “spot technical bullshit”; that’s the job of the opposing attorney, with the use of contrasting experts if necessary. The members of the jury are however supposed to determine the credibility of the witness, specifically on the level of how much what the witness says can be trusted or believed. No testimony by any witness is to be accepted at face value by a juror until that juror has determined whether the witness is credible; simply being an expert witness does not change this. If the opposing lawyer cannot give sufficient reason to doubt what a witness says, then the juror may choose to accept the testimony as fact (in whole or in part). According to your write up (as I haven’t read anything else about the case at this time), it appears that the jury did in fact reject the testimony of Zenimax’s expert coding witness, as Zenimax was not awarded anything for the charges of copying. This would seem to indicate that Oculus’ attorney and/or expert did an effective job of countering the merits of Zenimax’s expert’s testimony to give the jurors reason to doubt his/her credibility. Since in this regard the system seems to have worked to the outcome you thought appropriate, what exactly is your problem with either the process or the result (specifically on the copying charges)?

    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.

    There isn’t a set payment for these things, such as a law stating “all NDA violations carry a penalty of $50,000.” The payment for any such claim is going to be proportional to the amount of money at stake in terms of assets, profits, and potential profits lost. For such a breach involving a new breakthrough technology, the potential financial impact could be huge. Also, sometimes these amounts are calculated not in terms of the actual damage caused, but in terms of how large of a penalty is necessary to serve as a deterrent to the particular parties involved. If the penalty is too small, then the culpable party may consider their illegal act to have been financially worthwhile, and may justify similar actions in the future. Either way, from the outside the amounts of money awarded in these court cases always looks ridiculously large. However, in my experience, if you manage to get a hold of the full court documents and read through how these amounts were calculated and determined they usually end up making a lot of sense and seem much more reasonable. So yes, at a glance $500 million looks like a lot of money, and without full understanding may seem like an excessive penalty, there is most likely some solid reasoning and math behind that amount.

    All told, Zenimax is getting $200 million specifically for the false designation claims.

    According to the breakdown you posted from Business Insider, Zenimax is getting $250 million for the false designation claims ($50 million from Oculus, $150 million from Brenden Iribe, and $50 million from Palmer Luckey).

  19. Aanok says:

    If I sue Facebook and win, shouldn’t my award come from Facebook’s coffers and not Zuckerberg’s personal bank account?

    It depends if Z. had any personal responsibility in the crime at hand. There are many cases of financial crimes, e.g. fraudulent bankruptcy, where one man or a few men in a business create damage to other parties (like other shareholders of their own enterprise) for a very individual gain.
    In general, since ultimately the mandate for a company’s actions resides in its Board of Executives (i.e. its owners or their empowered representatives), it stands to reason that it should be held accountable. Evidently, the court found that this was the case for Iribe.

    It’s actually a very sound and fair principle, imho, this of personal culpability. If some people individually mandated some action from inside an organization, they should not be held absolutely immune under the umbrella of their membership.

    Of course things can get pretty blurry sometimes: see the Nuremberg Trials :p

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