Oculus VR case goes to jury with a $6B request

“If they could make it, why’d they take it?”

That seemed to be ZeniMax attorney Anthony Sammi’s chief refrain during closing arguments today, where the attorney representing the company behind id Software and Bethesda asked a Dallas jury to rule against Facebook and award $2 billion in compensation and another $4 billion in punitive damages.

Oculus attorney Beth Wilkinson argued to the same jury that the multibillion-dollar lawsuit was driven by ZeniMax’s embarrassment, jealousy and anger, not facts.

With the three-week ZeniMax v. Oculus trial drawing to a close, both the plaintiffs and the defense took the afternoon to draw their closing arguments. Those arguments served to better frame what the jury should be looking at in making its decision in the now $4 billion lawsuit over who developed the tech behind the Oculus Rift VR headset.

“We’re here because the defendants stole something very valuable,” Sammi told the jury, going on to call the entire thing a heist and proclaiming as fantasy the story that Oculus co-founder Palmer Luckey developed the Rift on his own. Instead, Sammi argued, id Software co-founder John Carmack was instrumental.

His argument hinged on Carmack being a foundational component to Oculus’ success. Luckey was only a hobbyist, Sammi argued, and not a software expert, which would have left the Oculus software development kit to the hands of the rest of Oculus. Based on emails and exchanges between Oculus engineers and Carmack, the conclusion Sammi drew was that Carmack’s contributions were vital to the core of what makes the Rift a desirable virtual reality experience.

id Software

Sammi went on to put forth the idea that if the information necessary to make virtual reality this viable was available in libraries and with online resources, then plenty of other companies would be doing just the same thing. This means, Sammi told the jury, that the final functionality of Oculus’ code had to come from somewhere — and that somewhere was Carmack and ZeniMax’s technology with the Rage VR testbed and Doom 3 BFG Edition, a violation of the nondisclosure agreement that Luckey signed.

Sammi also recalled the testimony of forensic expert Andrew Rosen. Computers had been wiped of data, some just three minutes prior to being imaged for this court case last year after a message from Oculus attorneys. This was laid out alongside Oculus co-founder Brendan Iribe’s messages about not using emails because they are “permanent,” and his exchange with Facebook CEO Mark Zuckerberg prior to his deposition — all of which, Sammi said, shows collusion and destruction or obfuscation of evidence and, in the case of Zuckerberg, negligence for closing a multibillion-dollar deal in three days.

ZeniMax’s attorney listed damages, too. He stated figures — according to varying tabulations from prior testimony by damages expert Daniel Jackson — ranging from $1.33 billion all the way to $2 billion for punitive damages. Sammi also pushed for compensatory awards, an additional total that could be as much as the damages, bringing the entire total to as much as $6 billion. He cited Facebook’s tremendous net worth here, arguing for higher damages and compensations.

Oculus’ Wilkinson then took the floor, laying out her argument just as strongly. Her opening was a plea to the decency of the jury, calling out ZeniMax for belittling the defendants and their witness for offering disagreeable testimony during cross examination. “They’re jealous, they’re angry, and they’re embarrassed,” she said, going on to quote the plaintiffs calling Oculus a group of “clowns” and decrying the Rift as “stupid.”

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Besides, Wilkinson argued, ZeniMax never valued virtual reality — let alone its own trade secrets — and failed to make a timely claim to the use of its technology. She called ZeniMax CEO Robert Altman’s focus on AAA games a “narrow strategy,” one that never saw VR as something viable in the marketplace. One particular email from Altman in November 2013 has him backing the claim that past attempts at consumer VR have failed, and this one was dubious as well.

Yet ZeniMax, according to the defense, had known about everything Oculus had been doing from the beginning. A January 2013 email from Carmack urged ZeniMax to lead the impending VR wave, but ZeniMax told Carmack to focus instead on Doom 4. Around then is when Bethesda president Vlatko Andonov also sent an email pushing then-id Software president Todd Hollenshead to distance the studio from Oculus, as the project might fail.

Of the two ZeniMax personnel the plaintiffs called to the stand, neither Altman nor id Software Creative Director Tim Willits were VR experts. Willits, in fact, stated that he didn’t write a single line of code at id Software, and Altman said, “I’m not a technical person.” This led Wilkinson to implore the jury to weigh the credibility of the witnesses, including the often troublesom testimonies offered by Altman and ZeniMax’s computer science experts David Dobkin and Michael Gleicher. She cited the many times District Judge Ed Kinkeade had to step into the defense’s cross examination and force the witnesses to give a direct answer.

The defense closed with a pointed set of responses to the ZeniMax’s allegations. Forensics expert Barbara Frederiksen-Cross found no evidence of copying in Oculus code. Both Carmack and Hollenshead stated that Oculus never got any actual source code for either the Rage VR testbed or Doom 3 BFG Edition. Early Oculus engineers stated they either never saw any Carmack source code or confirmed their code was developed independently. And every trade secret component (such as chromatic aberration correction, head and neck modeling) was already public, known, and had different solutions within the industry.

Wilkinson returned to her initial comments in closing out her argument to the jury. ZeniMax’s claims are a bunch of “sour grapes,” she said.

The jury is expected to deliberate into next week before returning with a decision.

The trial kicked off earlier this month with testimony from a number of experts and those involved directly in the case including Carmak, Zuckerberg and Oculus co-founders Iribe and Luckey.

Last week wrapped up with Iribe testifying how talks between ZeniMax and Oculus broke down. At one point, Iribe said under oath, Bethesda Softworks’ president called the Oculus team “kids” and threatened to stop Carmack from working on anything else VR-related if Oculus didn’t sign a partnership deal. The deal would have granted ZeniMax a 15 percent equity interest in Oculus.

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Earlier in that week, Palmer Luckey, testified during what was his first public appearance since it came to light in September that he had been secretly spending money on funding an unofficial Donald Trump group that “shitposts” anti-Hillary Clinton memes and images. That day in court seemed to be centered around proving whether Luckey was capable of creating the Oculus Rift on his own, without the help of Carmack.

During his day in court, Zuckerberg was grilled about his company’s seemingly rushed acquisition of Oculus for $2 billion. And during the first week of the trial, Carmack was questioned about his decision to copy some code from id Software computers before leaving the company to work at Facebook with Luckey.

Rockville, Maryland-based ZeniMax sued Oculus in May 2014, alleging that the VR startup misappropriated trade secrets in the development of the Oculus Rift headset. The lawsuit was filed weeks after ZeniMax publicly accused Carmack of providing technology to Oculus. Oculus has said it will disprove those claims.

According to ZeniMax’s complaint, Oculus co-founder and Rift inventor Palmer Luckey — along with a half a dozen ex-ZeniMax employees who are now working at Oculus — are building the Rift based on years and millions of dollars’ worth of ZeniMax’s research and copyrighted code.

Oculus, which is now owned by Facebook, denies the allegations, saying the lawsuit came to a head after Facebook purchased the company and as a “chance for a quick payout.”

The trial kick off was bookended by twin salvos of accusatory statements from ZeniMax and Oculus.

The history of Luckey, the Oculus Rift, Carmack and ZeniMax-owned id Software is a complicated and entwined one. You can read more about it in our previous coverage of the ongoing suit.

Correction: This story initially reported the wrong dollar amount for what ZeniMax was seeking for punitive damages. The story has since been corrected. We apologize for the error.