
Here’s the Agreement Oculus Broke, According to ZeniMax - comex
http://recode.net/2014/05/01/heres-the-agreement-oculus-allegedly-broke-according-to-zenimax/
======
Lazare
A bit confusing, but as near as I can tell, the contention is:

1) Id software claims they own the work Carmack did while working for them
unless an exception had been made in his contract.

2) An agreement was signed between Id and Oculus saying Id retained ownership
of the work they owned.

This story contains a copy of the agreement, and a quick skim indicates it
says what Re/code claims it does. _IF_ Id owned Carmack's work on VR, then it
would seem they still do so, and Oculus does not (ie, point 2 is correct).

The question that isn't answered here is, well, does Id own Carmack's work?
The fact that Carmack's contract apparently had a specific exclusion for
Armadillo Aerospace, but did _not_ have one for Oculus is very suggestive (why
negotiate any exceptions unless exceptions are indeed needed?), but not
dispositive. Seems like the real dispute is going to end up being between Id
and Carmack; Oculus is kind of a bystander.

If I was advising Carmack, I'd strongly suggest he engage a lawyer. He's
probably getting legal advice from Oculus's counsel right now, but there's a
long, long, LONG history of people getting screwed over by their employer's
lawyer (who works for the employer, _not_ for the employee, and has no duty to
offer legal advice in the employee's interest!). Tweeting that Oculus doesn't
use any _code_ written while Carmack was at Id is all well and good, but it's
got nothing to do with the core issue. I'd hate to see Carmack accidentally
admit to something that'll screw him over later.

~~~
JabavuAdams
> Tweeting that Oculus doesn't use any code written while Carmack was at Id is
> all well and good, but it's got nothing to do with the core issue. I'd hate
> to see Carmack accidentally admit to something that'll screw him over later.

I'm actually kind of shocked that he tweeted anything at all. Wouldn't his
lawyer basically tell him not to say anything?

~~~
sheetjs
> He's probably getting legal advice from Oculus's counsel right now, but
> there's a long, long, LONG history of people getting screwed over by their
> employer's lawyer (who works for the employer, not for the employee, and has
> no duty to offer legal advice in the employee's interest!).

It's in the employer's best interest to distance Oculus from Carmack.

~~~
nickff
Or to ensure that Carmack assumes full liability.

~~~
sillysaurus3
Let's step back and think about what it is we're all nodding our heads to. If
a pioneer like Carmack can be dragged under with a little bit of legal
schenanigans, what chance does any of us have?

The core issue is that Carmack wanted to leave Zenimax and do something else.
It's about freedom. That freedom is being challenged, and it sounds like
everyone here is agreeing that it's sensible for a fellow developer to be
denied it.

~~~
sheetjs
Read the exact statements carefully. This entire thread is focused on the fact
that Oculus's lawyers serve Oculus's best interests, which are not necessarily
aligned with Carmack's best interests.

~~~
sillysaurus3
Yeah, you're right. I was just surprised that there wasn't more pushback on
this point:

 _" The question that isn't answered here is, well, does Id own Carmack's
work?"_

It's up to you how much to disagree with the concept of programmer slavery.
Personally, I find it abhorrent that we've allowed the law to evolve into a
state to permit it at all. But this is idealism and not pragmatism speaking,
and this was a subthread about pragmatism. Sorry.

~~~
anigbrowl
While I don't support Zenimax's position, I don't buy your argument about
programmer slavery either. You could just as easily argue that this was an
issue of 'freedom of contract,' wherein any adult person can waive rights in a
contract if the person considers it to be in their economic interest. I'm not
sure that this particular contract is even valid, but you should acquaint
yourself with the idea:
[http://en.wikipedia.org/wiki/Freedom_of_contract](http://en.wikipedia.org/wiki/Freedom_of_contract)

~~~
sillysaurus3
Could we please keep the argument impersonal? Saying something like "you
should acquaint yourself with the idea" forces me to either respond "I was in
fact already familiar with the idea" or keep silent and let you make
presuppositions about what I don't know. The former makes for boring reading;
the latter is unfair.

And to the other commenter who has accused me of lacking perspective and being
disrespectful: it must be nice having enough money where you're not forced to
choose between accepting a contract that strips you of your right to work on
what you want in your own free time, or letting your cat die from cancer you
can't pay to treat. If that's not some form of slavery, then apparently I do
lack perspective. (If there's some confusion as to how this relates to the
original topic, it's because the exact same form of law is being applied in
both cases: it's considered normal and fair for companies to offer contracts
that default to stripping programmers of their right to work on what they want
in their free time, and it's up to programmers to be extremely careful not to
accidentally sign something that does so. Apparently even Carmack isn't free
from this, and that's what prompted my original comment.)

As for the argument, I should choose to bow out rather than write a lengthy
expansion of my thoughts, as this is the wrong subthread for it. Maybe I'll
post a toplevel comment later if there's sufficient interest, but there are
probably more important topics to discuss.

~~~
eropple
I'm sorry about your cat, but taking a job--of your own free will--that
results on you not being able to work on your own stuff in exchange for more
money than well over ninety percent of humanity makes in a year is so very far
from slavery that superlatives fail me. You are equating the life of a pet
with the forced bondage of tens of thousands of people _today_ and the
historical bondage of millions--and in the process you conflate "it will
emotionally hurt me to quit" to "I will be hunted down and forcibly brought
back or murdered if I attempt to quit".

You do not have perspective--whether it is overstating the impact of your own
situation or perhaps not understanding the extremity of _fucking slavery, man_
\--and I think saying so is eminently fair.

~~~
sillysaurus3
[https://www.google.com/search?q=define%3Aslavery](https://www.google.com/search?q=define%3Aslavery)

 _a condition compared to that of a slave in respect of exhausting labor or
restricted freedom._

I've been using this definition the whole time. I really didn't want to have
this debate, but you're hunting me through the comments and forcing me to. How
is it disrespectful to use a word in the way that it's defined? I'm genuinely
curious and looking to learn.

~~~
anigbrowl
With loaded terms, it might be better to define how you're using them up front
instead of expecting readers to infer the context. Nobody knew at the outset
that you were feeling constrained by medical expenses, for example, and it's
not always easy to distinguish between hyperbole and fallacy from short
textual comments.

------
staunch
Robert Altman (CEO of ZeniMax) is an attorney. He knows they have just enough
of a claim to muddy the waters and make life difficult for Oculus. He also
knows Oculus is very likely to settle for more than they were offering him
previously. This is exactly why people hate lawyers. Robert Altman of ZeniMax
is an asshole.

------
rrouse
I've always hated the notion of "We pay you some small amount to own you
24/7."

In my opinion, what I do outside of work hours is mine and mine alone. I
always make sure I state that explicitly and modify any contract that tries to
do otherwise.

~~~
famousactress
It's definitely icky. I don't sign those things anymore, but then I don't get
paid enough to. I do wonder how these negotiations go though for someone at
Carmack's level. These contracts aren't compulsory... Carmack apparently
understood that enough to work out an exclusion for Armadillo... and certainly
there's a price at which I'd happily sign one of those agreements (though I
can't imagine anyone paying it), so it's not clear to me yet which side of
this I'd fall on, despite really despising those kinds of employment
contracts.

~~~
georgemcbay
I don't know anything specific about the details of any of Carmack's
contracts; but certainly when signing them you have a lot more leverage to
carve out exclusions when some other company actively wants to buy "you" and
your company than you do later when it is clear to everyone that you're on the
way out the door.

Armadillo was started way before ZeniMax acquired id (thus easy to foresee
needing a documented exclusion), whereas Oculus VR wasn't even a thing until a
few years after that was a done deal.

~~~
famousactress
It goes without saying that you have more leverage before signing a contract
than afterward, and the contract is obviously open ended... I was just
pointing out that it's a risk of the unknown that would be weighed against
compensation by both parties so it's not totally clear to me that Zeni is out
of line yet.

~~~
georgemcbay
I would assume Carmack did the usual programmer thing and just expected them
to not be huge unreasonable assholes about future situations after his ZeniMax
employment had ended.

This is a common mistake programmers make when dealing with lawyers and other
corporate types who stand to gain money from being huge unreasonable assholes.

------
anigbrowl
I don't think Oculus/Carmack has too much to worry about, as this agreement
looks a bit shaky legally and it will b tricky to prove that Carmack has taken
proprietary research with him (unless they have admissions ot this effect that
we don't know about).

The reason I think the agreement looks shaky is that it picks Texas law as
governing law, but also claims that the term of the agreement shall be 'in
perpetuity', ie forever. Texas is one of only 3 US states that still holds to
the common law rule against perpetuities, which says that no property interest
is valid unless it explicitly vests within 21 years of the death of of the
last party involved. [1]

Now this usually comes up in the context of probate law, where people are
arguing over the terms of a will involving the disposal of a dead person's
property. However, at least one case in New York (which, like Texas, follows
the old common-law rule) has seen a similar case involving a software
distributorship agreement, in which the court ruled the entire agreement void
for lack of an explicit term. [2]

1\.
[http://www.actec.org/public/documents/studies/zaritsky_rap_s...](http://www.actec.org/public/documents/studies/zaritsky_rap_survey_03_2012.pdf)

2\. [http://blog.internetcases.com/2008/07/02/software-
distributo...](http://blog.internetcases.com/2008/07/02/software-distributor-
agreement-violated-new-yorks-rule-against-perpetuities/)

Not a lawyer, not an expert on Texas law, and I only spent 15 minutes on this
- but if it ever goes to court, I bet the firs thing that lawyers for
Oculus/Carmack would do is move for summary judgment on the basis of
contractual invalidity.

------
Arjuna
This pretty much says it all...

 _" Oculus uses zero lines of code that I wrote while under contract to
Zenimax."_

[https://twitter.com/ID_AA_Carmack/status/462000400996921344](https://twitter.com/ID_AA_Carmack/status/462000400996921344)

~~~
sdoowpilihp
Though I don't know all of the specifics of this case, there is more to
consider than whether or not code was used. Certain types of algorithms,
concepts, processes, etc. are possibly protectable and could fall under
question.

That being said, my sense is that Zenimax is having a bit of regret for not
investing early and are trying alternative methods to get "their share".

~~~
georgemcbay
From a legal perspective, yes, there are more things to consider.

From a common sense perspective, ZeniMax AFAIK wasn't even working on VR at
this time period other than Carmack dabbling in his own "free time", so this
is a pretty naked attempt for them to make the claim that anything he worked
on even remotely related to games is owned by them, which I have a huge issue
with (even if it is a concept that holds legal water in some states).

I'd have more sympathy for ZeniMax if they were bullish on VR and Carmack was
working on an official project for them in the VR space and then left for
another company, but this doesn't look like that at all, this looks like a
game company owned by a lawyer trying to get a big payday on an opportunity
they previously missed the boat on, using tenuous legal technicalities.

~~~
stonemetal
As far as I know He is in Texas (Id is or was in Dallas). Does anyone know
which way Texas leans on those issues? Either way DOOM 3 BFG was officially
announced to support VR head sets, so he probably has worked with VR in some
official capacity.

~~~
sillysaurus3
If Texas leans the wrong way, it must be challenged. It's ridiculous that
Zenimax could possibly pull something like this with the full support of the
law.

~~~
sdgsdgsdg
These are the ridiculous times we live in.

------
bthornbury
Even if Zenimax is claiming to own John Carmack's work, under what supposition
do they make the claim that they own the knowledge in his head. Assuming he
did not break a non-comptet e clause, how is it that they can claim that
because he gained knowledge of how VR systems work, while working for them
that they own that knowledge in his head?

I understand typical IP policies, that they definitely own any code he wrote
and are capable of patenting ideas generated by him in that work. This seems
to step beyond that however (if indeed he used no code from id software at
oculus).

Perhaps I am being naive, but as a software developer, this seems to me that
they are attempting to set a dangerously non-competitive precedent. Under this
logic, because I learned how to do advanced SQL queries over an internship
(assuming a similar IP policy), I could never write SQL for any other company.
That is a much simplified analogy and is likely missing some specifics, but I
would honestly like to know the basis for this type of lawsuit.

~~~
Patrick_Devine
I'd really doubt a non-compete would be applicable in this case. Id has shown
no signs of creating a VR headset, which was the reason why Carmack left in
the first place.

In California (I have no idea about Texas), if Carmack worked on Occulus in
his own time (ie. not at work), on his own equipment with software which was
not owned by Id, then they would have absolutely no claim to anything written
by him, regardless of whether there was an agreement in place. The code he
wrote would be his own. They are, of course, welcome to sue him, but they're
most likely going to lose unless they can prove he acted inappropriately. My
guess is given Facebook's deep pockets, they're willing to take the risk, but
I'm not sure I'd want to be up against that legal team.

~~~
xsmasher
> In California (I have no idea about Texas), if Carmack worked on Occulus in
> his own time (ie. not at work), on his own equipment with software which was
> not owned by Id, then they would have absolutely no claim to anything
> written by him, regardless of whether there was an agreement in place.

Citation for this? I know California law forbids noncompetes that restrict
where you can find employment, but does it invalidate Intellectual property
agreements too?

EDIT: Nevermind, found it and you are right. LABOR CODE, SECTION 2870-2872
[http://www.leginfo.ca.gov/cgi-
bin/displaycode?section=lab&gr...](http://www.leginfo.ca.gov/cgi-
bin/displaycode?section=lab&group=02001-03000&file=2870-2872)

There is an exception for works that "Relate [...] to the employer's
business". That's probably what the lawsuit will hinge on.

------
chaired
This jackassery is like if DEC had gone after Microsoft for hiring Dave Cutler
et al.

If every company always pursued every technicality allowed by our stupid laws,
none of us would be free to change jobs.

edit: Apparently I couldn't have picked a worse example :| However, thinking
about the similarities, I'm struck by the sense that these companies are
basically seizing on a plausible excuse to extract millions from each other.
But these actions diminish the autonomy of these programmers, reducing them to
property.

~~~
gpcz
Microsoft apparently made a deal with DEC after some Digital employees
notified their senior management of how similar NT and VMS was. Microsoft paid
them 65-100 million dollars (src: [http://windowsitpro.com/windows-
client/windows-nt-and-vms-re...](http://windowsitpro.com/windows-
client/windows-nt-and-vms-rest-story) ).

As Steve Yegge says in "Done and Gets Things Smart," Cutler and Carmack are
the types of engineers that companies file lawsuits over when they are hired
away. This is because they generate a lot of extremely visible value -- most
programmers are not perceived by legal departments to be worth suing over like
that.

------
madrox
Whether or not Carmack did anything wrong is beside the point. It's a long
road in court to determining that, and Oculus doesn't want to be spending any
time in a law suit when it's trying to close the Facebook deal. This will get
a financial settlement quickly quickly so Oculus can get their billion dollar
payday, which is what ZeniMax is hoping for.

~~~
rasz_pl
Not sure about that. FB has lawyers on the payrol, im sure they wont mind
making them work for their oney for a change.

------
Mikeb85
It's absurd that this is even a thing. As far as I'm concerned an employer
owns what you do for them, on their time, and with their equipment. Nothing
more.

In no other industry can an employer claim ownership over ideas or
'expertise', it's downright medieval and I would expect more from the tech
industry.

------
jbb555
Regardless of the legal position ZeniMax are being asses. Unless this gets
resolved I shall be avoiding giving them my money in future and encouraging
others to do the same to the extent I can be bothered.

------
speeder
Only me find that is absurdly silly US companies behaviour of considering that
ALL work of employees, even outside their work, is company property?

~~~
sdgsdgsdg
Nope, me too. It's the same in the UK.

 _rant_ This is a rare glimpse of the true nature of our world. We really do
live in a time when individuals are owned by corporate entities. I cannot
express the depth of my anger and revulsion at this horrendous state of
affairs. Yet people talk about it as if it's something that is OK. They talk
about it for a few minutes, shrug their collective shoulders and move on. It
is not OK, this is not just one of those things. We seem to believe ourselves
in some bright new dawn, an enlightened age full of magic, gods and joyous,
eternal, unbroken song. It is a non-sense that the pitfalls of the past no
longer apply. Do not make believe that things have changed, that the human
spirit is no longer corruptible. I honestly think we need to be mindful of the
fanciful seeming visions of some of our finest prophets. I will leave you with
a quote: "If you want a vision of the future, imagine a boot stamping on a
human face - forever." _rant_

------
DonGateley
So pay them. There, that's cleared up.

------
subdane
I think the title of this article is misleading. This is an agreement between
Id and ZeniMax not ZeniMax and Oculus. The implication of the article is that
Carmack violated this agreement (he didn't sign this agreement Id's lawyers
did) and didn't negotiate an exception for Oculus in the same fashion as he
had for Armadillo Aerospace

Edit: For clarification I don't think Oculus "broke" this agreement, perhaps
Carmack did though.

~~~
georgemcbay
The agreement is between ZeniMax/id and Palmer Luckey (id and ZeniMax are
functionally the same entity here, so I think you might be confused on that
part of it).

Palmer Luckey is the founder of Oculus and for all intents and purposes at the
time this was signed, Luckey _was_ Oculus.

