{"id":38422,"date":"2017-05-23T06:00:34","date_gmt":"2017-05-23T10:00:34","guid":{"rendered":"http:\/\/www.shamusyoung.com\/twentysidedtale\/?p=38422"},"modified":"2017-05-23T06:13:44","modified_gmt":"2017-05-23T10:13:44","slug":"zenimax-vs-facebook-part-4-the-airing-of-grievances","status":"publish","type":"post","link":"https:\/\/www.shamusyoung.com\/twentysidedtale\/?p=38422","title":{"rendered":"Zenimax vs. Facebook Part 4: The Airing of Grievances"},"content":{"rendered":"

Like I said last week, Zenimax seems to be suingYes, the initial trial is over, but appeals are ongoing and I expect this will drag on for ages.<\/span> Oculus over the “theft” of it’s technology. This is a tricky argument because they’re accusing Oculus of stealing technology that Carmack was apparently sharing freely. You can argue that Carmack shouldn’t be sharing information against his employer’s wishes, but that makes this into a fight between Zenimax and Carmack, and Zenimax doesn’t want that fight. <\/p>\n

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

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

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

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

<\/p>\n

My own unsupported conjecture: <\/p>\n

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

Zenimax needed to prove that Oculus had stolen from them. This is a bit tricky. Aside from the problem that Carmack seemed to be “giving away” technology by simply collaborating with LuckeyAs allowed by the NDA<\/span>, there was the additional problem that you can’t own concepts or algorithms<\/i>. <\/p>\n

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

Complaint #1: Non-literal Copying.<\/h3>\n

Nice laptop. I've decided it non-literally belongs to me.<\/div>
Nice laptop. I've decided it non-literally belongs to me.<\/div><\/p>\n

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

Zenimax claimed this appropriation was “non-literal copying”, which is apparently a thing?<\/p>\n

Bob Zenimax:
\nOfficer, you gotta help me! Shamus Young stole my laptop.<\/p>\n

Policeman:
\nThat’s pretty serious. What did it look like?<\/p>\n

Bob Zenimax:
\n(Holds up laptop.)
\nIt’s this one.<\/p>\n

Policeman:
\nI thought you said this Shamus guy stole it. Did you recover it from him?<\/p>\n

Bob Zenimax:
\nWell, he non-literally stole it.<\/p>\n

Policeman:
\nYou mean he used it without asking?<\/p>\n

Bob Zenimax:
\nGod no. He’s never been near the thing. But sometimes he pretends like he owns it. He makes these typing motions in the air and says he’s using my computer.<\/p>\n

Policeman:
\nThat… that’s not stealing.<\/p>\n

Bob Zenimax:
\nLike I said, he non-literally stole it.<\/p><\/div>\n

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

Consider these scenarios:<\/p>\n

    \n
  1. You take my code and use it. (Literal copying.)\n
  2. You look at my code, and write your own version of it, using different variable names and formatting. (Non-literal copying.)\n
  3. I give you a detailed description of the mathematical operations you need to perform to complete a task. You then take that and write your own original code. (Which is allowed, in this particular case, since no patents are involved.)\n<\/ol>\n

    The thing is, it should be impossible to differentiate #2 and #3 by simply looking at the resulting code. Ask any coder who’s gotten lost in their own codebase and they’ll tell you: Sometimes code can look superficially very similar and yet accomplish very different things. At the same time, two pieces of code can look completely different and accomplish exactly the same thing. Consider this code snippet:<\/p>\n

    \r\nint add_two_numbers (int a, int b) {\r\n  return (a+b);\r\n}<\/pre>\n
    And then let’s say this code shows up at another company:<\/p>\n
    \r\nint AddIntegers (int iValue1, int iValue2)\r\n{\r\n      int iResult;\r\n\r\n      iResult = iValue1;\r\n      iResult += iValue2; \/\/WARNING: No overflow checking!\r\n      return iResult;\r\n}<\/pre>\n
    These two bits of code accomplish the exact same thing. They look different. They’re formatted differently. They follow different coding conventions. But they accomplish the exact same thing: They both take a pair of numbers and return the sum. How can you tell if I wrote the second from scratch or if I used the first example as a guide? You can’t. If you want to claim that the second represents “non-literal copying”, then how could I possibly have written it to be MORE unlike the original? The function does exactly what it needs to do, and if it did anything else then the code wouldn’t work. By the logic of non-literal copying, I can never again write a function to add two numbers together, because it’s impossible to do it without it looking like I non-literally copied it from whoever paid me to write the first one.<\/p>\n
    I’m assuming it wouldn’t hold up in court on an example this small and elementary, but since complex programs are made up of simple operations, the problems remain even if you scale it up to something useful!<\/p>\n
    There are a lot of bullshit patents<\/a> out there. But at least in those cases someone had to go to the time and trouble of applying for the patent! If you take non-literal copying to its logical extreme, it gives you patent-esque powers, applied to all of your code, without the idea ever needing to pass muster at the patent office. This is silly. In computer science there is often only one right way to interface with a library, simulate a process, or render a polygon. If we judge code by what it does rather than what it looks like, then nobody is safe from accusations of non-literal copying.<\/p>\n
    I’ll come back to non-literal copying when we get to the verdict. For now let’s just move on to… <\/p>\n
    Complaint #2: Literal Copying<\/h3>\n
    I'd be able to make programming mistakes so much faster and more efficiently with this keyboard.<\/div>
    I'd be able to make programming mistakes so much faster and more efficiently with this keyboard.<\/div><\/p>\n
    On top of allegations of Non-literal copying, Zenimax was also alleging that Oculus literally<\/b> copied their code. Like, the real sort of literal. Actually<\/i> literally.<\/p>\n
    It seems as though this complaint would be mutually exclusive with the “non-literal” one. It’s like claiming that someone tricked me into handing over my wallet, and also that they pick-pocketed it from me. These two things can’t both be true<\/em>. Apparently this sort of thing is allowed in a lawsuit? Apparently so. It sounds strange to a layperson like myself.<\/p>\n
    We can argue about who invented what or who should get credit for various innovations leading up to the original Doom 3 demo of the Rift, but one fact that neither party denies is that Carmack wrote the original rendering code to make it work. From here one of two things is possible:<\/p>\n
      \n
    1. After he worked out the required process, Carmack simply describedOr perhaps even wrote a spec.<\/span> the process required, and from there the Oculus team was able to write the code themselves. As I said above, this wouldn’t be copying – literal or otherwise.\n
    2. Carmack just handed over the source code of the project to Oculus.\n<\/ol>\n
      What does the evidence say? It’s… complicated.<\/p>\n
      It’s true that Luckey signed an NDA saying he wouldn’t use the Zenimax technology to compete with them. But it’s also true that you can’t own, patent, or copyright, or control an algorithm<\/em>, and a lot of the breakthroughs in VR (like FoV distortion and chromatic aberration) are arguably algorithms. But again, this doesn’t matter if Zenimax can prove that Oculus appropriated their source code – literally or otherwise.<\/p>\n
      At one point Oculus VR co-founder Brendan Iribe requested (in writing!) a license for the “source code shared by Carmack”. That seems pretty damning. Why would Iribe request a license for code they didn’t need? That suggests that at some<\/b> point Oculus was using Carmack’s code. However, we’re missing a lot of context surrounding this conversation.<\/p>\n
      For example: Perhaps Carmack shared the code with Luckey early in the project. (Which would have been permitted by the NDA.) Then Brendan Iribe – upon hearing that the code exists but not having seen it himself – requested licensing the code so they don’t have to write their own version. <\/p>\n
      We don’t know what the answer to his inquiry was. Maybe Zenimax said “No”. Maybe Zenimax asked more than Oculus could payI’m sure the “price” would have been a controlling stake in Oculus, and not money. Zenimax REALLY wanted the VR tech and didn’t care about the stupid Oculus piggy bank and its pathetic little $2 million in Kickstarter money.<\/span>. In any case, once the license deal fell through then Oculus would have written the code themselves.<\/p>\n
      All of this is just to point out that even though Iribe’s request sounds damning, there are a lot of possible explanations that don’t prove guilt. It all depends on the context and timing of the discussion. (Which has so far not been made public.)<\/p>\n
      The Hard Drive Problem<\/h3>\n
      Protip: Grabbing onto a hard drive plate and moving it back and forth with your hand doesn't sound anything like a record turntable.<\/div>
      Protip: Grabbing onto a hard drive plate and moving it back and forth with your hand doesn't sound anything like a record turntable.<\/div><\/p>\n
      The other major piece of gossip floating around in the wild is the detail that – hoping to prove that Carmack stole source code from ZenimaxA funny idea in itself, since he’s the one that wrote it in the first place. But that’s how copyright works.<\/span> – Zenimax demanded that Carmack hand over his hard drive. When they got it, they discovered that 90% of the data had been wiped. <\/p>\n
      Note that a data forensics expert<\/i> said that it had been wiped. If Carmack had just dragged a bunch of crap into the recycle bin, then they would have been able to recover most of it. (Our data forensics technology is pretty good!) If the expert could only say that<\/b> something had been wiped and not what<\/b> had been wiped, it suggests that the data was very thoroughly and deliberately expunged. This probably wasn’t a casual cleanup job. <\/p>\n
      The expert went on to say that the wipe happened after<\/b> Carmack got notice of the lawsuit.<\/p>\n
      Keep in mind this is presumably Carmack’s personal machine. That’s likely to have lots of private information, browser history, and other sensitive stuff on it. Imagine if someone was taking you to court. Would you want them to know your browser history? Would you want them to have access to all those website auto-logins you’ve got saved? Do you want them to know what programs you’ve got installed, what games you’ve played recently, and whoever might be on your contact lists? If I was being sued like this, my first thought would be, “Oh crap. They’ll probably demand I hand over this machine at some point. It’s full of company secrets and possibly even personal information not pertinent to the case. I should just clean it off so that stuff doesn’t wind up in the wrong hands.”<\/p>\n
      But you’re not supposed to do this!<\/p>\n
      When you’re being sued – or even when you THINK you’re about to be sued!<\/em> – you’re not supposed to delete things. Even if it’s standard procedure at your company to shred documents after 30 days or purge emails after 90, you’re supposed to stop doing these things when you’re under threat of a lawsuit. <\/p>\n
      It’s possible that Carmack didn’t realize this. It’s also possible that this happened very close to when he was leaving Zenimax and would have been obligated (under normal circumstances) to purge the machine of company information.<\/p>\n
      It’s possible this was an innocent act and it’s possible this was willful destruction of evidence. Usually in cases like this the judge can handle this a couple of different ways:<\/p>\n
        \n
      1. The judge can give the jury an adverse-inference instruction. This tells them, “You may<\/em> (but are not required to) assume that the deleted evidence contains information that is unfavorable to the defendant.”\n
      2. The judge can give the jury a mandatory<\/strong> adverse-inference instruction. This tells them, “You must<\/em> assume that the deleted evidence contains information that is unfavorable to the defendant.”\n<\/ol>\n
        The judge went with #1, which suggests that Carmack’s action was viewed as a mistake, but not a deliberate and willful attempt to destroy evidence.<\/p>\n
        I’m not saying Carmack is definitely innocent of the charge of destroying evidence. I’m just saying that once you start looking into this stuff there’s a lot of nuance. Before I began reading up on this case it seemed like the Zenimax claims were preposterous. But now most of them seem basically reasonable. At the same time, the accusations over deleted hard drives sound a lot less scandalous. <\/p>\n
        In any case, I think the Zenimax case would be a lot stronger if they hadn’t pushed the “non-literal copying” stuff. Their silly claims and their dodgy expert make this look less like an honest inquiry and more like them being willing to throw everything at the wall and hope that something sticks. <\/p>\n
        Complaint #3: False Designation<\/h3>\n
        The Oculus Kickstarter pitch, which shows a Zenimax employee showing off the Rift using a Zenimax game at a Zenimax trade show booth.<\/div>
        The Oculus Kickstarter pitch, which shows a Zenimax employee showing off the Rift using a Zenimax game at a Zenimax trade show booth.<\/div><\/p>\n
        Doom 3 was featured prominently during the E3 Demo and the Kickstarter campaign. One of the Kickstarter reward tiers included a version of Doom 3 designed to work with the Rift. Zenimax claims this made it look like they were directly involved in all of this when they weren’t. All of this was done without any official blessing from Zenimax, who owns the Doom franchise. <\/p>\n
        If I did a big “Coca-Cola Giveaway!” and covered this whole blog in Coke branding, then some people might assume Coke was supporting or sponsoring my blog when in fact they had nothing to do with it. In this case I would be in danger of being accused of “False Designation”.<\/p>\n
        You can imagine how frustrating this was for Zenimax: They can’t get Luckey to cut any kind of deal with them, but then Luckey goes around using Zenimax IP as promotional material. The fact that this didn’t immediately trigger legal action from the persnickety Zenimax legal team<\/a> makes me think Zenimax was still trying to entice Luckey to sit down at the bargaining table and sell them a stake in his company. <\/p>\n
        Complaint #4: Violation of the NDA<\/h3>\n
        Contracts might be boring to read, but there's nothing quite like a massive lawsuit to make them seem exciting!<\/div>
        Contracts might be boring to read, but there's nothing quite like a massive lawsuit to make them seem exciting!<\/div><\/p>\n
        Like I said earlier in this series: Luckey wasn’t allowed to use “Zenimax secrets” to compete with Zenimax. But his entire company was based on a product that depended on those secrets (or some of them) to work. I think this one depends on two ideas:<\/p>\n
          \n
        1. Are the “secrets” that Carmack shared really things that could reasonably be said to violate the NDA? Zenimax worded the thing very broadly, but that doesn’t necessarily mean it can be applied<\/em> broadly. Just because Carmack tells me how to calculate surface normals<\/a> while I’m under NDA, it doesn’t mean I’m automatically violating the NDA when I use that knowledge to do something else. Is this something that’s considered an algorithm? Is it something I already knew<\/em> before Carmack told me? Is it something that could be considered obvious or common knowledge? Carmack blabbed a lot of VR techniques as part of the normal “Thinking out loud” stuff he does in public appearances. Are those facts and ideas now free of the NDA because they’ve been openly shared in public?\n
        2. Is social-media company Facebook really “competing” with videogame company Zenimax by developing and marketing the Rift?\n<\/ol>\n
          I don’t have the knowledge or expertise to know the answer to any of these questions, and in any case it probably comes down to what the jury thinks. Like the rest of this case, it’s one of those things that seems obvious at first but then gets really complicated when you try to zoom in on the details.<\/p>\n
          Next time I’m going to wrap this up by looking at the verdict.<\/p>\n","protected":false},"excerpt":{"rendered":"
          Like I said last week, Zenimax seems to be suingYes, the initial trial is over, but appeals are ongoing and I expect this will drag on for ages. Oculus over the “theft” of it’s technology. This is a tricky argument because they’re accusing Oculus of stealing technology that Carmack was apparently sharing freely. You can […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[102],"tags":[],"class_list":["post-38422","post","type-post","status-publish","format-standard","hentry","category-weekly-column"],"_links":{"self":[{"href":"https:\/\/www.shamusyoung.com\/twentysidedtale\/index.php?rest_route=\/wp\/v2\/posts\/38422","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.shamusyoung.com\/twentysidedtale\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.shamusyoung.com\/twentysidedtale\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.shamusyoung.com\/twentysidedtale\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.shamusyoung.com\/twentysidedtale\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=38422"}],"version-history":[{"count":0,"href":"https:\/\/www.shamusyoung.com\/twentysidedtale\/index.php?rest_route=\/wp\/v2\/posts\/38422\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.shamusyoung.com\/twentysidedtale\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=38422"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.shamusyoung.com\/twentysidedtale\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=38422"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.shamusyoung.com\/twentysidedtale\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=38422"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}