Oculus and Facebook facing ZeniMax in trial

The legal battle between Oculus Rift owners Facebook and Bethesda parent company ZeniMax, who allege that the cybergoggles are partially built on work ZeniMax own, has reached a jury trial. Turns out, real courtroom battles are nowhere near as fun as Judge Judy or Ally McBeal would have you believe. Still, this week sees folks including Facelord Mark Zuckerberg take the stand, and some of the testimony is interesting or, at least, bantermonious. For one thing, Facebook think VR needs another 5 or 10 years to get where they want it (them ruling the cyberworld?).

The repercussions of this case could prove significant to the development of virtual reality. Even setting aside the potential payout if they lose, the ruling could throw a big stick in Facebook’s cyberwheels. As one of the two main goggmakers leading this wave of VR, anything that slows or halts Oculus could derail VR. HTC and Valve’s Vive is natty tech too but Facebook have such reach and profile that could help spread it.

To briefly recap: ZeniMax, the gamecorp who own studios including Bethesda and id Software, have since 2014 accused Oculus of using technology ZeniMax owns.

In the early days of the Rift, id Software technomancer John Carmack and other ZeniMax employees tinkered with prototypes and shared work with Rift creator Palmer Luckey under a non-disclosure agreement. ZeniMax also say that even after Luckey formed his company he and Oculus’s CEO, Brendan Iribe were still seeking expertise and know-how from ZeniMax. According to the suit, the companies had discussions about how to compensate ZeniMax for the use of their intellectual property (this is back in 2012) but that over the next few months “Luckey, and Iribe became increasingly evasive and uncooperative” on the matter.

There’s a whole heap more, but essentially ZeniMax are saying that Facebook were notified that these disputes and the NDA Luckey signed existed and that buying Oculus would lead to a breach of said NDA. They also claim that, after quitting ZeniMax for a job with Oculus, Carmack returned to ZeniMax in order to take a tool which is used for developing head-mounted displays. Oh, and a recent ZeniMax statement ahead of the trial mentioned the company would “present evidence of the Defendants’ intentional destruction of evidence to cover up their wrongdoing.”

All of this leads to a heady cocktail of causes of action when you get to the end of the document – common law misappropriation of trade secrets, copyright infringement, breach of contract, tortious interference with contract, conversion and a few more. Facebook and Oculus, conversely, insist that the Rift is made of technobits they own and everything’s cool.

So! After years of paperwork, it’s now gone to a jury trial. I’ll not get bogged down in details at this point because the trial’s still ongoing and claims will be made and denied and countered all the while, but I will pick out a few interesting bits from it.

“I don’t think that good virtual reality is fully there yet,” the New York Times reports Mark Zuckerberg said in his testimony. “It’s going to take five or 10 more years of development before we get to where we all want to go.”

The current wave of VR is obviously not ready for the primetime but it’s interesting to hear Facebook are playing on that timescale. I fair reckon wager their hopes for virtual reality go far beyond gaming, mind, likely thinking of it more as the next layer of our lives they can track and fill with ads.

Over on Gizmodo, The Zuckster is quoted confirming that Facebook planned to push the Oculus acquisition through with surprising little time for legal diligence. They planned to begin on a Friday then sign the deal on the Monday. Zuckybaby says he only found out about the NDA between Luckey and ZeniMax in 2016, which makes that quick acquisition look perhaps a little too hasty.

Anyway! There’s more nuance to all of this but I’m not trying to recap everything. Oculord Palmer Luckey is testifying today. He may well be hovering above the stand as I type this.


  1. Fry says:

    Is Carmack going to testify? Spare a thought for the poor court stenographer.

    • Plyskeen says:

      Carmack testified yesterday already.

      • Captain Joyless says:

        Not only did he testify, but he admitted copying files and code from Zenimax and taking them to Oculus.

        Which isn’t necessarily the end of the case, and juries are insane, so we still don’t really know how it’ll all end.

        • zaldar78 says:

          If what you say is true then there is still stuff to matter. Did they copyright the computer program? Code is protected by copyright but you have to send it in to the government and you have to send in the exact version that was copied. Also not all of it is copyrightable based on if it contains things that are used in all programs. This is the kind of stuff I do for a living as I am an intellectual property lawyer. Is not simple to do these type of cases.

          The other question is, was any of this protected by patent? If not then it will be harder to prove trade secret stealing.

          Now the lack of legal due diligence is an issue that is a requirement and makes him look bad. If I was the opposing lawyer I would be harping on that hard core. The legal standard is known or should have known and what you can not do is purposely hide things from yourself. Sounds like he might have tried to do that…

    • Sakkura says:

      His quote du jour was “I am not a Mac user unless under duress.”

  2. k.t says:

    If I remember correctly, the discussions about compensation in 2012 centered on the publicity generated by Carmack demoing Doom 3 on the headset at E3, not intellectual property.

  3. The Bitcher III says:

    Ally McBeal and Judge Judy? Get with the times!

    Its all about Judge Rinder now.

  4. Drift_91 says:

    When I first saw the picture from Johnny Mnemonic at the top of the article I assumed ZeniMax were the studio who made the movie and thought they were suing over the mere concept of head mounted displays.

    • Sirius1 says:

      “…thought they were suing over the mere concept of head mounted displays”

      with rounded corners.

  5. Jeremy4worldpresident says:

    You know what, I think I’ll forever more refer to Mark Zuckerberg as The Facelord from now on

  6. Pogs says:

    Wot no VR stream of the court?

  7. Dirk says:

    “…Carmack returned to ZeniMax in order to take a tool which is used for developing head-mounted displays.”

    I wonder what that ‘tool’ was. A square edge, a bowl, a ruler and some duct tape maybe? All company property, which means the whole thing totally belongs to ZeniMax. Carmack included, for there shall be no defection.
    Seriously, corporations do my head in.

    • zaldar78 says:

      (a) if these were the tools he wouldn’t have gone to the company to take them as (1) yes they are company property – you can not take a stapler home from the office to keep and (2) he could easily get them elsewhere. (b) not sure why corporations due your head in unless you don’t understand property ownership – which if that is the case then well you do my head in. One of the main and only duties of government is to protect private property. This includes intellectual property. Yes the company doesn’t own Carmack as he can leave depending on what his contract says, but pursuant to his contract they own the ideas he develops while being employed by the company using company technology.

      • Dirk says:

        Thanks for giving me perspective. I admit I do have a problem with the concept of property ownership (sorry for doing your head in) especially when it comes to thoughts and ideas. Being paid by the company for the development of your ideas using assets owned by the company…yes, it all makes sense. There’s just this little voice in the back of my mind asking me why companies haven’t started brainwashing employees who have left or have mentioned a desire to leave. Just to make sure. You know…your knowledge being company property and all. ;)

  8. manny says:

    I believe the bible says “Forbidden tech tastes the sweetest” Zuckerberg is on a tech stealing roll, first facebook, now zenimax, he’s well on his way to becoming the new Apple!