John Carmack Accused of Stealing ZeniMax Technology For Oculus

[FalloutJack]

Well now, I had a feeling that the whole facebook and oculus thing wasn't really going to work out. Kinda' called it, mostly because facebook wouldn't know how to handle this sort of innovation properly...or just that someone would be an ass about it. So, yeah... Talk about a self-fulfilling prophecy.

Just because it's only become public now doesn't mean it wasn't in the works before, does it? Could be they OR crew knew Zenimax was going to pull something like this so they went and got themselves a sugar daddy first?

Such theories have little to mold them into possibility, unless you know anything more than the rest of us, like some other article giving more information on the subject. At the moment, my opinion is based upon which side can be publically regarded as a dick. I don't think that's Carmack. Will wait for more official information before updating said opinion.

 

[Alterego-X]

Trademark law then. My point still stands.

http://www.escapistmagazine.com/news/view/113531-Bethesda-Doesnt-Enjoy-Being-Forced-into-Mojang-Lawsuit

Soo, you are citing Zenimax's own people resorting to the same baseless rationalization with obvious benefits for themselves, instead of anything about the claim actually being true.

Here is a court decision about a trademark case instead:

The owner of a mark is not required to constantly monitor every nook and cranny of the entire nation and to fire both barrels of his shotgun instantly upon spotting a possible infringer. Lawyers and lawsuits come high and a financial decision must be made in every case as to whether the gain of prosecution is worth the candle.

http://scholar.google.com/scholar_case?case=9507780762101380994

If that's how US copyright law works, then why did they open a trademark lawsuit against Mojang?

Many people, within and outside of the US, refer to US intellectual property laws (copyright, trademark, and patents) simply as "copyright infringement".

Well, they should probably stop doing that because there is no such thing as "intellectual property law", only three entirely different legal concepts with different legal purposes.

Trademark, for example, is primarily a customer protection and an identification of commercial interests. It can apply to single words, even pre-existing ones, solely because they have came to be identified with a brand and their usage implies a product's origins, truly or falsely. They can be held indefinitely, and the only way to lose them is through "genericide" (when the word or icon becomes no longer cosistently associated with the owner at all, like Aspirin, or Escalator), and by total non-use lasting for several years.

Copyright, is a creative workers' monopoly over information distribution, aka "expressions of ideas". It applies to every creative work by the virtue of being created, and it's purpose is to financially incentivize creators, and it lasts for the creator's life + 70 years. The only way to lose a copyright is to run out of that time, or to sell it, or explicitly waive it.

Patents are monopolistic rights over innovations, aka "ideas". They last for 20 years, but only provided through consistent maintenance fees being paid to the Patent office through that time and thus can be lost by non-payment.

The only one of the three that has any element even remotely similar to what you are claiming here, is trademark, as theoretically it COULD BE lost through the owner's inaction, but genericide and non-use are both very far from happening. Some game being used "Scrolls" would not lead to "Elder Scrolls" becoming a common non-brand.specific phrase, an beyond that, like the above court decision sas, it's the trademark holder's call as to whether they still want to spend effort on restricting it anyways.

And besides, like you are just about to say, it is extremely unlikely that Carmack actually reused any trademarks specifically.

In the ultimate turn or irony you have used the incorrect IP terminology this time. Fairly certain Oculus didn't use ZeniMax's name, or their name's likeness, without permission.

Because I'm talking about the Scroll case, the one that actually was Trademark abuse, not the current one which we indeed have no idea what it is supposed to be.

Zenimax seems to be generally accusing Carmack of "stealing technology", which is legally speaking, not a thing. And in either case, if he infringed any copyrights or patents, they are NOT obliged to go after him, they do so because they chose to.

Beyond the letter of copyright and patent law, you can't just forbid workers to use "knowledge" they gained with you, because there is no way to legally define such knowledge. Yes, they could have signed a general no competition contract, but in that case they would likely talk about that and how the whole employment is illegal, not about how Carmack "Sstole tecnology" while doing so.

 

[NuclearKangaroo]

Huh, I wasn't aware that one could own someone else's "know how". Does that mean Zeni-Max owns anything he does forever because he developed his "know-how" with them first? I hope they don't actually try that as a legal argument!

i wonder if, eventually, when carmack dies Zenimax will just take the corpse, open up the skull, place his brain in a jar and claim it as their property


i hate when big corporations do stuff like this, not only are you disrespecting one of the best vets this industry has, you are also acting like a complete ungrateful asshole for everything this man has made for you and the industry your parasite corporation is trying to suck dry

 

[Raziel]

Trademark law then. My point still stands.

http://www.escapistmagazine.com/news/view/113531-Bethesda-Doesnt-Enjoy-Being-Forced-into-Mojang-Lawsuit

Soo, you are citing Zenimax's own people resorting to the same baseless rationalization with obvious benefits for themselves, instead of anything about the claim actually being true.

Here is a court decision about a trademark case instead:

The owner of a mark is not required to constantly monitor every nook and cranny of the entire nation and to fire both barrels of his shotgun instantly upon spotting a possible infringer. Lawyers and lawsuits come high and a financial decision must be made in every case as to whether the gain of prosecution is worth the candle.

http://scholar.google.com/scholar_case?case=9507780762101380994

I quoted more than just the Company's statement. I also quoted

The United States Patent and Trademark Office, after reviewing the facts at hand, concluded that "[Regarding] THE ELDER SCROLLS marks, the applicant has merely deleted the term ELDER from the registered mark. The mere deletion of wording from a registered mark may not be sufficient to overcome a likelihood of confusion." In other words, the U.S. government believes that removing a single word will not make consumers any less likely to conflate Scrolls and The Elder Scrolls.

The patent office made a ruling that did not clear Scrolls of possible infringement. Does a responsible company not move to protect a trademark on a franchise that has one of best selling games of all time? If they did nothing after the USPTO ruling you do not think it would be used in court against them should they ever try and move against something they believe was deliberately infringing? Especially if they were already working on ESO at that point. One should not take unnecessary chances when they have hundreds of millions of dollars on the line.

 

[Alterego-X]

If they did nothing after the USPTO ruling you do not think it would be used in court against them should they ever try and move against something they believe was deliberately infringing?

No, it wouldn't, because law doesn't work that way.

If someone vandalizes our house's wall and you decide not to sue them, that doesn't mean that from then on everyone is free to legally vandalize your house and you can do nothing about it.

If trademark law specifically does have such a clause, you should better present it than just claim that it's there. It isn't, like I did already demonstrate with actual court rulings. Corporations are free to enforce their possible rights as much as they see fit, depending on how it reflects on their PR, how much legal costs they can afford to spend, how much they would benefit from that particular infringer's stopping, and how close the threat of genericide is.

The only way for ZeniMax to lose their right to sue trademark infringers, is if they lose the trademark itself, and that can only happen if "Elder Scrolls" becomes such a generic description for so many video games, that the public doesn't associate it AT ALL with them in particular. This is an extremely strictly interpreted clause, even Xerox, Google, Frisbee, and Photoshop are still trademarks, we are talking about Zipper, Thermos, and Escalator here, which were also brands before generic product types.

Edit: And like it was mentioned, it is irrelevant to this thread, as whatever "technology" they accuse Carmack of stealing, it likely isn't trademarks, but copyrights or patents which can't be lost through genericide at all.

 

[Mortuorum]

Huh, I wasn't aware that one could own someone else's "know how". Does that mean Zeni-Max owns anything he does forever because he developed his "know-how" with them first? I hope they don't actually try that as a legal argument!

No, but your employer absolutely owns any code, processes or other intellectual property that you developed on their equipment and/or during business hours on their payroll. If ZeniMax has determined that John Carmack or Oculus VR is using assets that are legally the intellectual property of ZeniMax, then they are entitled, even obligated (from the perspective of shareholders) to initiate a lawsuit to protect their property.

These things aren't always as cut-and-dried as they first appear.

 

[Gorrath]

Huh, I wasn't aware that one could own someone else's "know how". Does that mean Zeni-Max owns anything he does forever because he developed his "know-how" with them first? I hope they don't actually try that as a legal argument!

No, but your employer absolutely owns any code, processes or other intellectual property that you developed on their equipment and/or during business hours on their payroll. If ZeniMax has determined that John Carmack or Oculus VR is using assets that are legally the intellectual property of ZeniMax, then they are entitled, even obligated (from the perspective of shareholders) to initiate a lawsuit to protect their property.

These things aren't always as cut-and-dried as they first appear.

That's all well and good, but the wording they used suggested that they own his know-how. IN the part the author quoted, this is something they state directly. Any code or technology he developed with them is theirs, but his knowing things isn't something that belongs to anyone but himself. I take no umbrage with Zenimax's desire to defend their property, I take umbrage with the assertion, their assertion, that they can own someone else's skill-set. Their wording suggests that they think they have dibs on anything he makes ever because his understanding of VR came from working with them and that's ridiculous. They may or may not have actually meant that (I'm inclined to think they didn't), but that's what their own wording suggests.

EDIT: Just to make it clear, here's the line I'm talking about:

"The proprietary technology and know-how Mr. Carmack developed when he was a ZeniMax employee, and used by Oculus, are owned by ZeniMax."

 

[Sarge034]

Well, they should probably stop doing that because there is no such thing as "intellectual property law", only three entirely different legal concepts with different legal purposes.

You mean the three laws that deal with intangible proprietary information otherwise know as intellectual property? While there is no official all encompassing "intellectual property law", that is the common group name for all of these similar IP laws.

The only one of the three that has any element even remotely similar to what you are claiming here, is trademark, as theoretically it COULD BE lost through the owner's inaction, but genericide and non-use are both very far from happening. Some game being used "Scrolls" would not lead to "Elder Scrolls" becoming a common non-brand.specific phrase, an beyond that, like the above court decision sas, it's the trademark holder's call as to whether they still want to spend effort on restricting it anyways.

So I'm assuming, because you made this claim, that you took the time to read the all of the laws concerning copyrights, trademarks, and patents? Oh wait, no I'm not. Because I have had to research most of the laws and saw first had the clauses about mandatory defense of proprietary rights and loss of rights if failure to defend is established.

Because I'm talking about the Scroll case, the one that actually was Trademark abuse, not the current one which we indeed have no idea what it is supposed to be.

Then that was a misunderstanding. It appeared as if you were likening the two situations to each other and that would have been incorrect from a terminology point of view that you find so important.

Zenimax seems to be generally accusing Carmack of "stealing technology", which is legally speaking, not a thing.

Incorrect. See...

Industrial espionage- http://en.wikipedia.org/wiki/Industrial_espionage
18 U.S. Code § 1832 - Theft of trade secrets- http://www.law.cornell.edu/uscode/text/18/1832

And in either case, if he infringed any copyrights or patents, they are NOT obliged to go after him, they do so because they chose to.

If they don't they lose the right to go after ANYONE who infringes. Be like if you didn't try to stop someone from pickpocketing $2.00 from you, then all security on your bank account would go down forever. That $2.00 seems pretty damn important now, don't it?

Beyond the letter of copyright and patent law, you can't just forbid workers to use "knowledge" they gained with you, because there is no way to legally define such knowledge.

Yes actually, you can. Trade secrets- Protection- http://en.wikipedia.org/wiki/Trade_secret NDAs are the most common way of legally protecting trade secrets.

You can define the knowledge the worker gained in the company by assessing the work done while at the company. If any code or tech is similar enough to validate an IP claim in court and the worker was involved in both projects you can seek damages.

Yes, they could have signed a general no competition contract, but in that case they would likely talk about that and how the whole employment is illegal, not about how Carmack "Sstole tecnology" while doing so.

Can you comprehend words?

"Many contracts specifically state you can not work for another software firm congruently and many go so far as to bar you from the industry for an amount of time after your separation. We don't even know anything about that elephant in the room yet."

 

[Strazdas]

This isn't the first time they got nasty, anyone remember their battle with Notch and Scrolls? ....Anybody? You there with the blue hat! You remember? ....D: Nope.

Not the same thing. Their actions against Scrolls was mandated by the way US copyright law works. They have to take action against everyone if they ever want to be able to take action against people who are actually copying them. Its just a shitty law. you cannot judge a company based solely on their obeying it.

no they werent. Copyright laws does not in any wy demand it. in fact its impossible to loose copyright by somone breaking it. its not even the right law in fact. they were going after patent laws, and patents cna be abandoned when used by other people. however that involves EVERYONE using it. all they did with Scrolls was patent trolling that they were in no way oblidged to do. and anyone that says otherwise either dont know the law or is lieing. the LAW IS FINE. the zenimax layers misinterpreting it is not.

Well, they should probably stop doing that because there is no such thing as "intellectual property law", only three entirely different legal concepts with different legal purposes.

thank you and may you have better luck with Sarge, for i have all but given up trying to dispell his misconceptions about these laws.

 

[Clovus]

Not the same thing. Their actions against Scrolls was mandated by the way US copyright law works. They have to take action against everyone if they ever want to be able to take action against people who are actually copying them. Its just a shitty law. you cannot judge a company based solely on their obeying it.

If that's how US copyright law works, then why did they open a trademark lawsuit against Mojang?

And more importantly, if you know so little about either that you can't even tell the difference between of these two unrelated legal concepts, why are you spreading factoids that are true for neither of them, just to excuse ZeniMax's trademark abuse?

I agree with most of your posts in this thread, so I was confused about what "trademark abuse" ZeniMax was involved in. Maybe I'm just remembering things incorrectly, but wasn't the whole Scrolls thing actually started by Mojang? They were the ones who filed for a trademark of "Scrolls", something that ZeniMax obviously couldn't allow. Just like there were plenty of objections to King's dumb "Candy" application. The problem wasn't that "Scrolls" made "Elder Scrolls" generic, but that anyone using "Scrolls" in their title (like "The Old Scrolls") could license "Scrolls" from Mojang and make things more difficult ZeniMax.

Now, after Mojang went down that path I imagine ZeniMax filed a few things that were maybe a stretch, but, in the end, lawyers sat down and hashed it all out. Nothing bad happened, and I've never had the impression ZeniMax was going after the big bucks or something. They just settled a simple trademark dispute like businesses normally do.

And in either case, if he infringed any copyrights or patents, they are NOT obliged to go after him, they do so because they chose to.

If they don't they lose the right to go after ANYONE who infringes. Be like if you didn't try to stop someone from pickpocketing $2.00 from you, then all security on your bank account would go down forever. That $2.00 seems pretty damn important now, don't it?

No, that's not true for copyright and patent law. How would it have been possible for the music industry to only go after a handful of people for copyright infringement if that were the case? One of the biggest problems with patent law is that some patent trolls only go after very small businesses that can't possibly defend themselves.

I don't know of anyone succeeding with a "They didn't sue everyone else in the world" defense in copyright or paten law. That's because they are three completely different sets of laws with very, very different rules. Trademark is the only one where you can win in court by claiming that the mark was not properly defended* and has become generic.

* Side note: American trademark law doe not actually require that every possible infringement be addressed. It's just developed that way since lawyers usually take a "better safe than sorry" approach. McDonalds will not lose their trademark because they didn't sue a single hamburger joint in Iowa called McDougal's or something that features a M in the logo.

It seems weird to me that this reasonable discussin of IP law came up in an article that probably has more to do with contract law. Most trademark articles are just filled with people claiming something like, "I'll trademark 'the' and sue them all!"

 

[Alterego-X]

They were the ones who filed for a trademark of "Scrolls", something that ZeniMax obviously couldn't allow. Just like there were plenty of objections to King's dumb "Candy" application. The problem wasn't that "Scrolls" made "Elder Scrolls" generic, but that anyone using "Scrolls" in their title (like "The Old Scrolls") could license "Scrolls" from Mojang and make things more difficult ZeniMax.

You can't compare trademarking "Scrolls" to trademarking "Candy", because Mojang actually made a game called Scrolls, and the word "Scrolls" in this format is strongly associated with their title.

There is nothing inherently silly about trademaking common words. If you are Apple and you sell computers, then you get to trademark the word "apple" and "machintosh" in the context of consumer electronics. Because the words really ARE associated with their lineup, common as they are in other contexts. Selling Apple branded apples, is what would be generic.

But this doesn't work the other way around. Having a trademak on "Elder Scrolls", or "Candy Crsh Saga" never should have meant that their makers ever held control over every singe word used in them, even if they are used separately.

 

[Clovus]

They were the ones who filed for a trademark of "Scrolls", something that ZeniMax obviously couldn't allow. Just like there were plenty of objections to King's dumb "Candy" application. The problem wasn't that "Scrolls" made "Elder Scrolls" generic, but that anyone using "Scrolls" in their title (like "The Old Scrolls") could license "Scrolls" from Mojang and make things more difficult ZeniMax.

You can't compare trademarking "Scrolls" to trademarking "Candy", because Mojang actually made a game called Scrolls, and the word "Scrolls" in this format is strongly associated with their title.

There is nothing inherently silly about trademaking common words. If you are Apple and you sell computers, then you get to trademark the word "apple" and "machintosh" in the context of consumer electronics. Because the words really ARE associated with their lineup, common as they are in other contexts. Selling Apple branded apples, is what would be generic.

But this doesn't work the other way around. Having a trademak on "Elder Scrolls", or "Candy Crsh Saga" never should have meant that their makers ever held control over every singe word used in them, even if they are used separately.

Right, but you can't compare "Scrolls" and "Apple" either. "Apple" has almost nothing to do with computers. "Scrolls" is something that might show up in a video game title (ie, "The Elder Scrolls"). The problem with the "Candy" trademark wasn't simply that it was only part of the title "Candy Crush Saga". If so, King would just quickly put out a game simply called "Candy" and they'd be all set. They know that won't work though. "Candy" is clearly not distinct enough in the realm of video game titles and neither was "Scrolls".

I totally agree that ZeniMax owning "The Elder Scrolls" does not give them ownership of the word "Scrolls". If someone were to create a word puzzle game with a title like "Puzzle Scrolls", they should be ok. I would totally have been on Mojang's side if they had simply tried to trademark, "Mojang's Scrolls" or something like that. Do you really think allowing Mojang to own "Scrolls" makes sense?

 

[Sarge034]

Snip

Ok, let's pick this apart piece by piece.

>Trademark
http://www.forbes.com/sites/oliverherzfeld/2013/02/28/failure-to-enforce-trademarks-if-you-snooze-do-you-lose/

>Patent
http://www.lawabel.com/patent-damages-laches-and-equitable-estoppel/

>Copyright
http://www.bna.com/court-considers-laches-n17179881492/

>laches defense
http://dictionary.law.com/Default.aspx?selected=1097

As you can see, waiting to pursue a claim can hurt your case in all sections of IP law. You can also use a latches defense to strengthen your stance if you can prove a highly visible infringer was left alone while lower profile/lower impact infringers were being targeted. That's quite a bit harder to do, but can be a huge boon if you manage it.

 

[Clovus]

Snip

Ok, let's pick this apart piece by piece.

>Trademark
http://www.forbes.com/sites/oliverherzfeld/2013/02/28/failure-to-enforce-trademarks-if-you-snooze-do-you-lose/

>Patent
http://www.lawabel.com/patent-damages-laches-and-equitable-estoppel/

>Copyright
http://www.bna.com/court-considers-laches-n17179881492/

>laches defense
http://dictionary.law.com/Default.aspx?selected=1097

As you can see, waiting to pursue a claim can hurt your case in all sections of IP law. You can also use a latches defense to strengthen your stance if you can prove a highly visible infringer was left alone while lower profile/lower impact infringers were being targeted. That's quite a bit harder to do, but can be a huge boon if you manage it.

But we weren't talking solely about waiting to bring a suit. That is what the OP is about, to some small degree. ZeniMax has been in contact with Oculus about this for quite awhile though.

Here's what you wrote:

If they don't they lose the right to go after ANYONE who infringes.

That is not true for copyright or patent law. That's what I was responding to. You'll have to find an actual patent or copyright case that someone argued that they could not be sued because the owner was not going after everyone else who is infringing. With the internet, that would make all copyright cases impossible because the amount of infringement is massive.

I did not know about estoppel and laches though. That was really interesting. So, seriously, thanks for the links.

 

[Sarge034]

Sorry for the delay, life happens.

But we weren't talking solely about waiting to bring a suit. That is what the OP is about, to some small degree. ZeniMax has been in contact with Oculus about this for quite awhile though.

That is correct, ZeniMax has been in contact with Oculus for a while. However, I believe the situation would fall under something similar to this one found on the wiki page for "estoppel".

"For example, in the U.S. case Aspex Eyewear v. Clariti Eyewear, eyeglass frame maker Aspex sued competitor Clariti for patent infringement. Aspex waited three years without responding to a question asking it to list the infringed patent claims before asserting its patent in litigation. During this prolonged silence, Clariti expanded its marketing and sales of the accused eyeglass frames. The Federal Circuit found Aspex guilty of misleading conduct because it led Clariti to believe it would not enforce its patent, and thus Aspex was estopped and could not proceed with the suit."
http://en.wikipedia.org/wiki/Estoppel#Equitable_estoppel_.28American_law.29

Here's what you wrote:

If they don't they lose the right to go after ANYONE who infringes.

That is not true for copyright or patent law. That's what I was responding to. You'll have to find an actual patent or copyright case that someone argued that they could not be sued because the owner was not going after everyone else who is infringing. With the internet, that would make all copyright cases impossible because the amount of infringement is massive.

"2. Delay and/or Non-Action in Proceeding

1. In general, a patent owner need only pursue infringement against one infringer at a time, so there is often a delay in litigating against one or more other infringers at the same time

2. If the patent owner has notified a third party of infringement, it is necessary to preserve its rights and not have a long delay prejudice it. In that case it is important for the patent owner to notify the third party that the patent owner will be proceeding against that third party after the current litigation is resolved.

3. If there is no notice given at all, the question arises about the consequences of waiting to bring the action."
http://www.lawabel.com/patent-damages-laches-and-equitable-estoppel/

So that in conjunction with the latches defense shown earlier and the estoppel litigation shown above effectively destroys your ability to enforce your IP claim if you let one go and try to hold another accountable. So while I will concede that technically you don't lose your legal rights to pursue your claim you are effectively destroying any hope of winning the case in court. Note I did say "letting one go" as opposed to "not bringing a suite yet". This would most likely mean a high profile entity was violating an IP claim for some time before a suite was brought against a different infringer.

I did not know about estoppel and laches though. That was really interesting. So, seriously, thanks for the links.

Not a problem. I couldn't remember their names to save my life or the specific clauses I saw in IP laws back when I had to learn them. One outta two aint bad, I guess.