John Carmack is suing ZeniMax
techcrunch.com
techcrunch.com
We couldn't hire a P/T contractor because the engineer signed an NDA agreement with his company that pretty much said everything he developed, verbalized, or put to paper -- during work or after -- was IP of that company, irrespective of whether it had anything to do with its products. Even as an employer, I find this an absolute outrage.
[0] https://leginfo.legislature.ca.gov/faces/codes_displaySectio....
It is rarely enforced but it's always there, looming.
Anyway, even before the consideration of intellectual properties, it stand to reason that a worker can produce only so much work per day before stressing out, and if an employee hired for 8h does 4h more on the side as contractor the employing company gets 'cheated out' of productive time and this is especially true in a job that require fairly constant concentration, even if being tired at the job is shitty all around universally.
No, if I'm hired as an employee, it's either to perform specific duties during specific times (hourly pay), or it's to provide my expertise to accomplish tasks given me, with a possible expectation I be available or at a location during certain times (salaried pay). If I'm salary, and my employer expects it will take me 8 hours but it takes me 1, I can relax the rest of the time. Doing so may reflect poorly on me if I'm looking to advance, but that's why employment is a negotiation.
Nobody can provide 100% output 100% of the time they are working if they work 40 hours a week. People aren't built to be able to sustain that rate of work, they can try, but very quickly they are no longer putting out 100% output, even if they are there 100% of the time. So it's fairly obvious people do naturally limit the amount of effort they put into work based on the expected return, which is how it should be.
As an example, it's not unheard of for people to switch jobs for positions that pay less but also have far less responsibility. If you can work half as hard but get 75% the pay, some people will take that if that 75% is sufficient and they've determined that the prior amount of stress was too much.
Amazon isn't always thought of as the nicest of companies, but in terms of employees I.P. I'd say they are one of the fairest companies.
You being able to own the IP to things you create outside of work does not mean that you suddenly don't have to work during your actual work times.
Also, if an employer gave that as a reason for them keeping my IP created outside of work hours I would very seriously reconsider accepting a job with them (other reasons such as those outlined in Joel's article make a lot of sense).
Unless the comment I was responding to was worded badly, my statement is valid.
Even if there is truth to what you said, employers already have enough power as it is. Why should we let them own a workers time even outside of the hours they are being compensated? They have no right to that. At the end of the day, if a worker is not productive enough the company can choose to fire them - thats about all the say a company should have over your life. If they want to OWN ALL your productive output, it stands to reason they should pay much more than the 8 hours your salary covers.
I think it's more "let them have the power to fire a worker that comes on the job tired, warms the seat while recovers for the night shift and leaves the office without producing the value he is paid for."
more to the point: there's already a contract form that empowers the worker to work goals instead of hours, allowing employers that so desire to manage their time, so there's that as well. if one chooses the salaryman life, he get pros and cons.
No. Just no. Side projects are another way to up your skills. In addition to side projects I've done for pay, I've done them for a charitable organization on a volunteer basis, fundamental science research group (small fee, practically volunteer work). Even if my day-job suffered temporarily, they've still benefited because each of these projects involved learning/practicing something new.
So why are workers allowed to do their own laundry, cooking etc? If I do DIY on my house in my own time, does the company now own the increase in value of my house? That seems to be what you're arguing: that effort outside of the workplace directly zero-sum competes with effort in the workplace.
I mean, a really strict reading of the IP clauses would indicate that if I wrote a letter to my mother the IP would reside with the company.
I hear you about reatrictive covenants and NDAs, though.
edit: I get Zenimax said it was about him going to Oculus, but it is really just Zenimax being dicks. They will most likely have to pay.
I presume that's what led to this debacle.
With all respect to "id" software, the majority of their value was JC and the tech leads.
Whilst id is still remembered fondly it's not like they were a major brand and had a large portfolio of technical and franchised intellectual property that was worth anything close to what ZeniMax paid for it.
ZeniMax bought the brains not the doom franchise.
In terms of human capital, Carmack is one of the most respected technologists in gaming, but I'm sure ZeniMax didn't expect him to stay with them for a very long period. At the time id was bought by ZeniMax it seemed like Carmack was spending a lot of time on Armadillo Aerospace too.
In terms of tech it seems id wasn't the leader it used to be anymore (their early engines were used by Half-Life and CoD), taking into consideration Unreal Engine 3, Crytek Engine (being used for Bethesda's own Prey, the previous installment running on idTech) and Unity.
On the other side, Activision bought Infinity Ward (developer of Call of Duty) for just 5 million [1]...
http://venturebeat.com/2010/03/04/lawsuit-details-activision...
That's why I choose not to work for one personally.
See also: EULA's, and really every contract ever between two entities of significantly different clout.
* One company wouldn't budge. Later, I got a better deal, but it was risky the way I went about it. * At another company, I just didn't sign it. They didn't stop me from starting work but when the omission was noticed they had an HR person pester me about it a few times. They eventually gave up. * At yet another place, I crossed out the parts I didn't like. They just kind of shrugged and said okay.
At no time did I ever want anything unreasonable. I just didn't want all the things that I or my descendants designed/built/invented/helped-whatever to be assigned to ['company'] in perpetuity, etc. And I didn't want a contractual responsibility to come and defend patents in courts, or give depositions at my expense.
The smart ones absolutely will not. Smart people absolutely will not do this, regardless of their profession.
And hopefully have the self-awareness not to have strongly held opinions in these areas (at least without sufficient evidence). However, I find that all too often, this is not the case.
> HR/hiring people will look at you like you're some kind of weirdo if you balk at any of it. Here are the reactions to my reluctance as I recall them.
Right. Go over them. Your lawyer will talk to their lawyers, above the level of the HR people you would be talking to.
> I didn't want a contractual responsibility to come and defend patents in courts,
Which is a pretty reasonable requirement...
> or give depositions at my expense.
But that is not (or, rather, it can be in certain circumstances).
A good lawyer will negotiate these things for you. You should try to find one who actually understands software a bit. They do exist.
Disclaimer: I am not your lawyer. If you need a lawyer, you should get one.
If they're 3/3 with dodging it, what makes it unreasonable? Have they just been lucky so far?
>Which is a pretty reasonable requirement...
You omitted the last part. I think it's pretty unreasonable to want that kind of service gratis.
It's really no different than negotiating on salary or anything else - you just have to know your own value and the current job market climate. And obviously not being afraid of having a frank discussion about it - perhaps a lot of devs are non-confrontational in that way.
That is not an NDA. It simply isn't. NDA covers non-disclosure of confidential information. It may say NDA at the top, but it is no more an NDA than if I put a Honda hood ornament on an M1A1 Abrams.
What you are describing is a 360 work-for-hire agreement. Which is a totally, totally different beast.
> Even as an employer, I find this an absolute outrage.
Well, it can be overkill. But depending on how much the guy is getting paid, depending on the industry and the larger context, it can be appropriate. This contract is basically saying that no moonlighting is allowable - there are many business arrangements where this is perfectly reasonable (i.e., critical or unique employees, fiduciaries, key executives, etc.). If, however, he is truly just a low level employee, then maybe it is not appropriate. The point is that it is not clear cut.
Some questions arise:
* Is this the only guy who can perform this particular work for you? If so, then you are giving credence to the argument he is a super valuable asset and there is reasonable motivation for his employers to have him in a total lockup agreement. The hope is that he would be properly compensated for this trade-off, however. If he isn't, he should seek legal representation for negotiation of his next job arrangement.
* If he is not the only guy who can perform this particular work, does he not have friends? Are there no other alternatives?
There are really only two choices: 1) he and his skills are unique, in which case his employer has every motivation to have him be subject to these very strong anti-moonlighting provisions (and hopefully he is getting commensurate pay - if he isn't, that is another whole ball of wax) or 2) there are other people that can do this job, in which case, hire one of them. Or are there no reasonable alternatives?
Depends. Is this an entry level programmer? If so, is that entry level programmer fresh out of college and making $150k? Or is an executive making $500k? Is there an equity package? Or is this some guy making 55k and working 60 hour weeks? There is a continuum.
Also, 360 deals in music industry typically relate to the fact that all royalty and endorsement deals must go through the label - it used to be that artists could directly license their names for things like cereal endorsements or clothing lines. A 360 deal means that the artist must do that licensing through the label. Whether or not this is a good deal depends on the artist, the label, and the specific percentages involved.
That is not quite the same thing as a work for hire agreement that states that all of an employees inventions, whether or not developed on or off the clock and whether or not developed with company hardware - are company property. Similar, to be sure, but if you talk about a 360 work for hire agreement, people may get what you are talking about, but some may not. I don't think it is 'term of art' in the same way - even though I may use it as one.
One of the main improvements of capitalism over feudalism is that contract terms usually last for at most a lifetime, and where they don't they're at least limited to a piece of real estate.
That's not to say there aren't some good arguments for IP, but they sort of inherently have a planned-economy bent.
That's quite wrong. the very basis of IP is a state-imposed monopoly, which is the complete opposite of what capitalism is, what its basic principles are, and how it works.
My current employer has a very clearly and unambiguously worded one-page NDA with rules that make sense and don't overreach.
My previous job had a document many, many pages long, that asserted I was liable for up to $10 million if I had violated any of the rules in it, which included things like making a copy of source code or debug binaries onto a USB device (which often happened in practice). It also tried to enforce these rules retroactively for 5 years and until 5 years after my employment ended, and was forced upon me 18 months into the job.
DOOM Resurrected, Part 2 - Designing a First Impression (Doom Documentary) - https://www.youtube.com/watch?v=vsoVQWnSOfM
DOOM Resurrected, Part 3 - Guns, Guitars & Chess on Mars (Doom Documentary) - https://www.youtube.com/watch?v=r0nOsuaPDeg
I too recommend these.
Noclip also has a bunch of extended interviews that you can find on their channel or in related videos but I haven't seen those so can't comment on whether or not they are worth looking at.
Direct link to the complaint here [1].
[0] http://www.dallasnews.com/business/technology/2017/03/09/leg...
[1] https://www.scribd.com/document/341420632/John-Carmack-vs-Ze...
As Carmack's musing on Facebook pointed out, he didn't like the outcome but he didn't have any grounding to factually dispute the NDA. So, tough as it may be, they lost.
This is about getting what is owed in contracts. Essentially the opposite side of the coin to an NDA (Can vs. Can't Do) and I hope he wins if he is truly being ripped off.
EDIT - Another commentor posted the original complaint and this is exactly why Zenimax is not paying "ZeniMax’s stated basis for its failure to comply with the Convertible Promissory Note is a series of allegations regarding claimed violations of Mr. Carmack’s Employment Agreement and ZeniMax’s alleged intellectual property rights."(1)
A jury of "peers" found Oculus at fault in several key areas in Zenimax's last complaint, and Carmack was central in that story.
When Zenimax sued Oculus - the VR community responded with overwhelming support for Oculus, casting Zenimax as the greedy corporation trying to get a slice.
Zenimax's original complaint - of which a Jury saw enough truth in to award $500m to Zenimax - is more or less as follows:
- Zenimax bought ID software for >$100m on June 24, 2009.
- Carmack signed up with Zenimax for an earn-out / golden-handcuffs agreement that ended in June of 2013.
- Carmack was enthralled with VR.
- Carmack found Palmer via an internet forum, reached out to get a rift to try.
- Carmack tinkered with the Rift, adding sensors, building calibration, etc. while on the clock / using hardware from zenimax.
- Carmack brought a prototype of the Rift working on Doom 3 to E3 with him providing Oculus with their early press.
- Zenimax realized the extent to which Carmack was enabling Oculus and worked to negotiate equity with Brendan Iribe.
- Oculus sent Zenimax a proposal to discuss a partnership Sept 21, 2012 but never followed up / followed through.
- Carmack quit Zenimax the day his contract was up in June 2013, joined Oculus as CTO a few months later and took his 5 best guys with him.
- FB bought Oculus March 2014, Zenmix got pissed and sued.
When Zenimax responds to this new complaint from Carmack it's a foregone conclusion that they will re-raise this "bad behavior" and likely point to non-competitive clauses attached to the "earn out" as non-performing.
I love Carmack and his contributions to our world, I am concerned that Zenimax may out lawyer him.
PS - Fun fact - two of Zenimax's board members are Cal Ripken, Jr. (hall of fame baseball player) and Robert S. Trump - brother to our current president.
EDIT - Changed first sentence for clarity of my point.
(1) https://www.scribd.com/document/341420632/John-Carmack-vs-Ze...
My point above is that Zenimax will claim that due to the issues surrounding the Oculus case Carmack failed the covenants required to collect his earn out.
EDIT - See updates to my comment, this is exactly right - Zenimax has stated that Carmack broke his covenants due to the battle vs. Oculus -=>
"ZeniMax’s stated basis for its failure to comply with the Convertible Promissory Note is a series of allegations regarding claimed violations of Mr. Carmack’s Employment Agreement and ZeniMax’s alleged intellectual property rights. Those allegations were recently put to trial in ZeniMax Media Inc. v. Oculus VR, LLC , Case No. 3:14-CV-01849-K (N.D. Tex.). Mr. Carmack was a Defendant in that case, and there was extensive testimony and evidence about the alleged conduct that ZeniMax now asserts as the basis for its current refusal to comply with its contracts."
https://www.scribd.com/document/341420632/John-Carmack-vs-Ze...
The "fun facts" he listed re: the board members were just that - interesting tidbits (that I was personally intrigued to find out) but yes, not relevant to other aspects of the case.
The fact that "Carmack was enthralled with VR" is very much relevant to the story of why Carmack decided to spend so much effort (apparently using some Zenimax's resources according to the post) to work on technology that at the time wasn't immediately relevant to what Zenimax was doing.
He wouldn't be lodging the case if he didn't have some kind of reasonable chance to punishing ZeniMax with it.
Given that, I suspect the basis for failure to comply might not as be as clear cut as you make it sound.
A few questions:
- Is this standard practice?
- How can you enjoy your weekend creative activities, and/or, use them for your potential future startups, copyrights, patents, whatever, if you work full-time under such a stringent condition? (can you even write a novel and sell it, while you work full-time as a software engineer? or should you always ask permission first?)
- Is it likely that Carmack had similar obligations while he was at Zenimax? In which case he very carelessly ignored them when he indulged in Oculus work. (but then he also has his rocket hobby going on so I don't know how that panned out in relationship to his employers, Zenimax, or FB).
- This raises an important concern. As a typical employed engineer, we don't pay much attention to the legal repurcussions of our employment. May be we (or I) should not carry out any undertaking without consulting a lawyer (specializing in these matters) first?
Yes, but...
- How can you enjoy your weekend creative activities, and/or, use them for your potential future startups, copyrights, patents, whatever, if you work full-time under such a stringent condition?
...it's just what the other company is bringing to the table. The last time I had to sign one of these, I just worked with HR and legal to pare it down to something we were both happy with.
- Move to California or negotiate a different contract. (It depends on if your employer wants a cut, how far they are willing to litigate, and if they can show they missed out on economic growth that you made (depending on the contract clause); you should always ask permission, even before contributing to open-source projects.)
- Yes, it is. While it is unclear if Carmack actually stole code from Zenimax, the actual evidence is easy to construe in Zenimax's favor, e.g., Carmack backed up all of his emails, many of which included attachments of VR code, before he quit, and the Oculus founder had an NDA with Zenimax while working on VR with them before starting the Oculus kickstarter. (I'm not sure about the situation with the rocket hobby.)
- Obviously this is the answer: talk to both internal and external council, and remember that internal council will be the people suing you if they get unhappy.
Basically, the professional lawyers leave it up to you to figure out what parts of the contracts are real and which are fake. I hate it. I feel it's a bit like making a lawyer figure out what parts of this C program are "undefined behavior" and if they're wrong in my favor I don't correct them. "Yeah, this is all pretty standard code, these programs are usually a few tens of thousands of lines, don't worry about that part." But it's just them doing the best they can for their clients the easiest way they can ... just in case it helps, standard practice and all that ...
I am definitely not a machine.
Pretty common.
> - How can you enjoy your weekend creative activities, and/or, use them for your potential future startups, copyrights, patents, whatever, if you work full-time under such a stringent condition? (can you even write a novel and sell it, while you work full-time as a software engineer? or should you always ask permission first?)
Remember that these documents are just the company's assertion of their opinion on the ownership of your work in your off hours. The law might have a different opinion, if it ever came down to it.
> - Is it likely that Carmack had similar obligations while he was at Zenimax? In which case he very carelessly ignored them when he indulged in Oculus work. (but then he also has his rocket hobby going on so I don't know how that panned out in relationship to his employers, Zenimax, or FB).
Very. And his situation isn't really defensible, because he was working on videogame-related stuff. This is why he (well, Oculus) lost the lawsuit.
> - This raises an important concern. As a typical employed engineer, we don't pay much attention to the legal repurcussions of our employment. May be we (or I) should not carry out any undertaking without consulting a lawyer (specializing in these matters) first?
Depends. The sum of my off hours work over the years has been a vt100 emulator, some programmer exercises, and some half-baked attempts at various game AI problems. Nothing worth a lawyer's time to tell me what I already know. Which is that you sign this agreement or you don't get the job, period.
Not if you sign it.
> Which is that you sign this agreement or you don't get the job, period.
That's a pretty crappy perspective. If you don't like the terms, negotiate. If you don't understand the terms, get your own lawyer to read it.
Just because somebody presents you with a employment contract doesn't mean you have to sign it. Read it, ask them to explain parts you don't understand by leading by example how and where the clause of the contract would be put into practice.
I've had some baffling contract terms put into contracts. I've asked and managed to get employers pay for 3rd party legal advice >= $2,000 for employment contracts.
In summary if they cannot explain to you like a adult without saying `The lawyers told us to put this in we don't understand why`. Then it's not within your best interest to sign the contract.
My own person experience stay away from firms that have lengthy overtly complicated contracts.
Not always. The law can override contracts.
Some states (especially California) put limitations on employment agreements. There are specific rights you have, where if you voluntarily sign a contract that explicitly gives up those rights, the contract is wrong and you still have the rights. Specifically, non-compete clauses are mostly invalid, and there is a limit to how much a company can own IP you produce outside of work.
If you do sign it, it doesn't matter if it is unenforceable, you almost certainly will not get a summary judgement to dismiss the case. Breach of contract cases can go on for years. You will have to pay for a lawyer during that time. If you signed the document, even if you win you will probably not get back the money that you paid for the lawyer.
So if you rely on the courts to throw out the contract that you signed, you can still be out tens of thousands of dollars. Also, if you are unemployed during the time that you are being sued for breach of contract, almost nobody else will touch you with a 10 foot pole. So quite likely you are paying out tens of thousands of dollars and you have no income. And you won't ever make that money back.
Personally I don't sign anything I don't intend to honour. And yet, I was still sued by my former employer for breach of contract. Luckily the thing they sued me for was not in my contract and my subsequent employer was lawyered up to the hilt. The graciously offered to get me out of it for free.
I am not a lawyer and this is not legal advice.
Sometimes reality is crappy. Unless you're a legit famous person, most of these Bigcos are not going to adjust the terms of employment for you.
I have this crazy theory that this is one of the reasons why Satoshi Nakamoto remains anonymous. If his real identity was ever discovered the corporation he worked for, during that time period, would have a claim to all of the IP he generated when he created Bitcoin.
https://www.joelonsoftware.com/2016/12/09/developers-side-pr...
It's highly informative.
https://medium.com/@wwalser/re-developers-side-projects-3ee3...
Basically, yes, it's standard practice but in every company that I've worked for there have been escape hatches that were relatively easy to utilize. HR usually has paperwork that both parties sign saying something along the lines of "[developer] is going to build [thing] in their own time using their own hardware. We grant [developer] the legal right to maintain ownership of [thing]".
I pay a lot of attention to what I'm signing. My side projects are important to me. They're a part of my lifestyle. I think most devs could very comfortably sign without a second thought. On the whole, state and contract law in the US combine to create a fairly good safety net for avoiding truly abhorrent contracts.
After living and working in California for 6 years, I was considering a job as third engineer at a startup in another state. I was a bit anxious about side projects, and asked about them after receiving the offer. The response was basically what you said, a pleasant surprise, not scary like Joel warned. But for piece of mind, if I took the job, I would still want to find a lawyer in the new state to review the paperwork, which is a drag.
In the end I chose to remain in CA, and it's nice. It's nice to completely not ever have to worry about this issue at all. So I get why Joel is resentful after working for years in states where unreasonable invention assignment clauses are enforceable.
If you work on your own projects outside company time and never commits it to a repository or whatever is used then there should be no problem - and if you do then you better have an agreement in place or it becomes the property of the company.
On the other hand if you work on side projects during company time then there shouldn't be any legal trouble for the company by not claiming it as theirs, from the company's perspective you are just goofing off which you could also do by browsing reddit or whatever, it shouldn't really be different. Of course if you are incorporating parts of company code into your side project (or probably looking at company code related to what you are working on) then you have made a derivative work, which would already be covered as copyright infringement - but otherwise it's just a work performance issue.
I can't really see these "everything you do belongs to us" clauses as anything but pure greed, but maybe that's because I have grown up in a place where this isn't the norm (and it probably wouldn't be enforceable anyways).
That seems... incorrect to me somehow. It matters less what Google does than what I do for Google and the information I have access to. If I'm writing algorithms to detect spam in email, and I don't have access to any IP on Google balloons or interface with the balloon group, Google shouldn't be able to claim any ownership of my balloon idea.
I'm not even near Carmack (I'm actually a big slacker), but each time that I am given an offer, I always negotiate IP rights. I have tons of ideas and have owned several LLCs and C-Corps. Likely, most of my IP is worthless, but I like to protect my IP anyway.
In fact, there have only been two companies that have ever refused to negotiate these terms with me. And, interestingly enough, one of them sought me out so much that the CEO wined and dined me twice. But, even then, he still wouldn't budge. Oh, well - there are a lot of fish in the sea!
1. It's not standard. I've yet to meet another developer that encounter this kind of clause and I've yet to be in that situation as well.
2. you can't. I had the same issue with my novel. They said "Well, we wouldn't care about that" as a response but "caring" and having the right to is completely different.
3. They'd probably try to say that he used work equipment or code
4. You can; however, most contracts are pretty simple and you can negotiate. I always negotiate and explicit clause that states that my employer owns solely that which is developed during work hours or on work equipment. It's as (mostly) simple as that.
Wow. That sounds OTT excessive. What about any children you have during the time of employment, do you get to keep them?
There is no body or union (yet) that looks out for your rights, that's your personal responsibility. You have to negotiate terms you can agree to, or if you can't, either sign the contract and look for another employment opportunity, or not sign the contract and do the same. I suggest taking a negotiation course and maybe a business course, so you know how the company thinks. It's unfortunate, but during contract negotiation, you and the company are essentially enemies, battling for opposite things.
It's also unfortunate that you'll never get the chance to practise contract negotiation as an employee. You only do that when you're doing the final negotiation of taking a job, while the person against you does it nearly every single day. I suggest taking a lawyer with you.
Or just sign the contract and pay no attention to that clause. Even if they sue you (and that's really rare), the damages you have to pay would probably be less than the effort and legal fees you would pay to negotiate a favourable contract. That part of the contract is basically jaywalking - nobody cares if you don't inconvenience traffic.
More information at https://en.wikipedia.org/wiki/Non-compete_clause
Unless they are going to try to say that he started the shenanigans before the contract date and was doing such work in bad faith which might terminate the contract based on whatever clauses it may have to cover such things. Which is always possible, but I'd like to see how they prove it.
The lawsuit reveals that ZeniMax Media paid $150 million for the game studio behind such pioneering video gaming classics as Doom and Quake.
Off topic, but I'm disappointed in the quality of writing: why repeating "such pioneering video gaming classics as Doom and Quake"? I get the impression that the article was either written in a rush or just mixed up (in a rush) from other sources.
> Instead Carmack is suing Zenimax Media for $22.5 million that he says has not been paid to him for the 2009 sale of his game studio, id Software, known for such pioneering video game classics as Doom and Quake.
> The lawsuit reveals that ZeniMax Media paid $150 million for the game studio behind such pioneering video gaming classics as Doom and Quake.
Subsequent sentences. FFS.
Nicely illustrated. ;)
You are outraged that the writer missed a duplication (that happened in draft, no doubt) during a copyedit stage?
I have some news for you: publishers in 2017 do not enjoy the economic conditions to either give journalists time to polish their work or hire dedicated copyeditors.
Or did you feel that 'being a nice guy' should protect you from legalities or the responsibilities that go with the job title?