oculus cto john carmack was largely vindicated last week when a jury cleared him of any personal liability in a case where he was accused of exploiting trade secrets, stealing and reusing code, and destroying evidence from his time working at id software parent zenimax media. Still, the Doom co-creator is publicly bristling at accusations aired during the trial that he made “non-literal” copies of ZeniMax code while working for Oculus.
In a lengthy public Facebook post, Carmack takes direct issue with a ZeniMax expert at the trial who said repeatedly he was “absolutely certain” that Oculus code was substantially similar to code written while Carmack was at ZeniMax. “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,'” he writes. “I just wanted to shout ‘You lie!'”
The legal issue at hand here deals with the “substantial similarity” copyright standard, where even a work that isn’t a verbatim copy can be considered infringing if “the pattern or sequence… is similar” to the original (as a 1992 federal decision put it). Carmack himself gives the example of a copied program where only the variable names were changed as a clear example of “non-literal” infringement.
At the trial, though, Carmack says the ZeniMax expert ignored “objective measures of code similarity that can be quoted, like the edit distance between abstract syntax trees.” Instead, Carmack believes the expert “hand identified the abstract steps that the code fragments were performing, [and] made slides that nobody in the courtroom could actually read, filled with colored boxes outlining the purportedly analogous code in each case.”
The jury in the case eventually found Oculus and other executives liable for some instances of copyright infringement and NDA violation over reused portions of zenimax source code. But the jury also rejected the larger claim that Oculus has stolen “trade secrets” from ZeniMax.
Carmack says he’s still “morbidly curious” to see the expert’s full report, which is under seal, under the theory that “if the code examples were released publicly, the Internet would have viciously mocked the analysis.” In any case, he feels it should be made public as a check on the professional reputation of the person making the accusation. “In many cases, the consequences are significant,” he said. “There should be a danger to your reputation if you are imprudent.”
Carmack also stated bluntly, “I never tried to hide or wipe any evidence, and all of my data is accounted for, contrary to some stories being spread.”
In response to Carmack’s post, ZeniMax released its own statement highlighting the strongest arguments presented at the trial (many of which the jury eventually rejected in its verdict):
“In addition to expert testimony finding both literal and non-literal copying, Oculus programmers themselves admitted using Zenimax’s copyrighted code (one saying he cut and pasted it into the Oculus SDK), and [oculus vr co-founder] Brendan Iribe, in writing, requested a license for the ‘source code shared by Carmack’ they needed for the Oculus Rift. Not surprisingly, the jury found zenimax code copyrights were infringed. The Oculus Rift was built on a foundation of Zenimax technology.”
“As for the denial of wiping, the Court’s independent expert found 92 percent of Carmack’s hard drive was wiped—all data was permanently destroyed, right after Carmack got notice of the lawsuit, and that his affidavit denying the wiping was false. Those are the hard facts.”
ZeniMax recently said it was considering seeking an injunction to stop Oculus from selling any headsets following the $500 million civil verdict against Oculus. Arguing for such an injunction may be an uphill climb, though, according to a legal expert who was watching the case.