Facebook Founder Testifies in Virtual Reality Theft Case

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: May 4, 2017

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Facebook DislikeFacebook founder Mark Zuckerbeg recently testified in a case involving the alleged theft of intellectual property related to virtual reality.

As the New York Times reports, Zuckerberg bought Oculus VR, a virtual reality start-up, for more than $2 billion.

A competing virtual reality firm, ZeniMax Media (known for the video games Fallout and Elder Scrolls), sued Oculus a few months after Facebook announced the acquisition.

ZeniMax accused Oculus of stealing elements of the virtual headset technology.

Stealing Code?

As Wired reports, the lawsuit hinges on what makes code “new” and what it means to “steal” it:

ZeniMax claims that Oculus CTO John Carmack, best known as the creator of the video game Doom, developed core parts of the Oculus Rift while employed at ZeniMax. Now ZeniMax tech is powering Facebook-owned Oculus’ products without permission, the plaintiffs say. Carmack, meanwhile, asserts that Oculus founder Palmer Luckey is the true creator of the Rift and that none of his ZeniMax work found its way into the final product. To decide who’s right, jurors will have to parse a question that’s at least as philosophical as it is technical.

Oculus contends that its products don’t include a single line of ZeniMax code. However, as Wired notes, “software doesn’t need to copy code line for line in order to violate intellectual property law.”

Courts comparing two sets of computer code apply what’s called the  Abstraction-Filtration-Comparison test, which dates back to 1992.

Abtraction-Filtration-Comparison

The “abstraction” step involves identifying what parts of a program are an “idea” and what parts are an “expression” of an idea.

For example, “a farm boy wants to leave home and find adventure” is an idea. The movie Star Wars (aka, A New Hope) is a specific expression of that idea.

The “filtration” step involves removing from consideration any parts of the computer code that can’t be protectable by copyright. For example, some elements of software have been released into the public domain.

The final “comparison” step involves comparing what’s left between the plaintiff’s code and the defendant’s code.

Employer Ownership

Another issue, according to Wired, is whether Carmack worked on code for Oculus while he was still employed by ZeniMax.

Even if the Oculus code doesn’t violate the copyright of the ZeniMax code, Carmack’s employment status could give his former employer ownership of the code he created, even if he created it on his own time.

As this blog explains, many employment contracts have a clause called something like “assignment of rights” which assigns to the employer any intellectual property the employee creates while employed.

These clauses may even cover work that employees do on their own time, and without using the employer’s equipment or facilities.

For example, under California law, an employer may have the rights to work an employee created in his or her free time that “relates” to the employer’s business.

This issue came up in the HBO series Silicon Valley, in which the founder of Pied Piper (a startup) was sued by his former employer.

Facebook could be liable for as much as $2 billion in damages if it loses the case.

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