Carmack Takes Exception To ZeniMax Expert Witness' 'Absolute Certainty'

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Jan 21, 2010
What Carmack says has its merit. Unfortunately, none of us are privy to the details of the case, and all we can do is speculate.

The concept of “non-literal copying” sounds like lawyer speak for "we're butt-hurt because they got the same functionality" regardless of the fact it didn't use the same code... If this case supports that conclusion... beware... innovation and creativity will be locked down tighter than Fort Knox, placing it squarely in the hands of big money media/software conglomerates.
What I can gather from the term "non-literal copy" is that you don't make a carbon copy of the code, but take the base assumptions and concepts for creating such a piece (functional) into your new code set.

In Project Management terms (or making a parallel through it): you copy the specific requirements and functional spec, but the code looks different while delivering the same end results.

Now, that is what I interpret and in no way, shape or form I'll go against Mr. Carmacks word, lol.



Feb 3, 2017
"no country for old men" applies here.

I'd love to see how the case is settled when they must distinguish non-literal copying between two massively complex datasets.

This is why talent...the humans and knowledge (Carmack) is so valued by large tech companies...why sign up for a full acquisition when Carmack and an array of coders is nearly as good.


Sort of like:

Caveman 1: "We have discovered a way to make an object that aides in carrying deer back to the hut."

Caveman 2: "We just patented the cart. Since the result is the same you must have copied our design. You now owe us 100 deer."


I'm surprised they made this stick. Copyright protects the literal text. So, non-literal copyright infringement is not only an oxymoron, but something that shouldn't hold up in court.

Plus, I've written code, then forgot about it, and rewritten almost the identical function, years later. So, if the same person is doing a similar thing, then it's only natural to expect a similar result.

Lastly, I'm pretty surprised he wasn't able to read the analysis. Wasn't he a defendant? Or, is it because he wasn't a defendant that he wasn't allowed to see the evidence?

It smells to me like FB's lawyers missed some opportunities, here. Like, not bringing their own expert witness on source code analysis.
"..Carmack doesn't deny that he took code from id Software when he left the company. The developer admitted on the stand that he took a hard drive full of files and source code, but ..." Why would anyone do this? Nothing good can come of stealing code from a former employer even if you do not end up using it for anything.
The concept of “non-literal copying” .... is probably a necessary one. Anyone can take code and do some edits and reformat so that it looks nothing like the original.

One approach that has worked in the past in "stolen code" discussions is BUGS. While it is easy to end up with a similar product, explaining why you have the same bugs in the same routines is really hard.

From wikipedia "Japanese mainframe manufacturers Fujitsu and Hitachi both repeatedly and illegally obtained IBM's MVS source code and internal documentation ..... Even IBM's bugs and documentation misspellings were faithfully copied."


It seems like you should have to establish that it's what he actually did.

I can see the point of proving that, to a compiler, they look exactly the same. But, copyright clearly does not cover "works like". So, you should have to prove that, at some level, it really was a copy.

To me, this smells like improper convictions using DNA evidence. Juries are impressed by these things, even when the evidence is misinterpreted to show a conclusion it really doesn't support.

The same could apply to "source code analysis". Without understanding the methodology used and how it meets the legal standard, it's really just meaningless theater used to make the testimony of the expert witness seem more credible. Not saying it doesn't meet a legal standard, but it sounds like that was never established.
From what I know, copyright can be attributed to code and processes/methods.

What you code normally are specific processes. You can decompose them to a functional level, so you can patent those. Remember all that issue ID had with the "Carmack's reverse" algorithm before opening up ID Tech 4? The code represented, almost to the letter, the process of solving a very specific shading (from what I recall) problem, so he had to re-write it taking a different approach. I haven't seen the specific code involved (before and after), but I can imagine their claims might be revolving around the same concepts applied there.


Ah, you are correct. I mixed them up. I always mix up Trademark, Copyright and Patenting stuff.

EDIT: Stupidly enough, I did explain using the correct word, ROFL.


My post was related to “non-literal copying” , not anything related to Carmack. I was only commenting on the discussion that “non-literal copying” was an evil concept.

Re Carmack: No way to tell from an article what a person did, but if I was a Juror Carmack admitting he stole source code would have had an impact. But I'd have needed some proof that at least some of the code Carmack shipped was the code he stole.

Re your comment " you should have to prove that, at some level, it really was a copy." agree, Also agree with comments about what copyright protects and what patents protect.

As an aside: If I steal source code, compile it, and ship only binaries how do you feel copyright works? The binaries are clearly not the source code, they are not a copy of the source code. Where I work we have to put a constant variable copyright in each module we code. Assume this helps the lawyers if someone takes the binaries.

What would you say about copyright protecting an adaptation of a copyrighted work? How close does source code need to be to the original to be derivative works (works that adapt the original work)

From your wiki reference:

Several exclusive rights typically attach to the holder of a copyright:
to produce copies or reproductions of the work and to sell those copies (including, typically, electronic copies)
to import or export the work
to create derivative works (works that adapt the original work)
to perform or display the work publicly
to sell or cede these rights to others
to transmit or display by radio or video.[38]


With the disclaimer that I'm not a lawyer, what I think would be the issue isn't the shipping of the compiled code, but rather the theft and use of the source. If you then profit from that crime, or do anything that arguably hurts the plaintiff, such as giving it away for free, then they're entitled to damages.

The benefit of embedding the copyright in the compiled code would probably be to copyright the code in binary form.


Apr 19, 2011

I'm guessing that John Carnack took source code from id Software because:

First of all, he is one of the founders of that company.
Second of all, he is a computer programmer. He is world renowned as possibly the greatest computer programmer ever. I'm surprised you didn't know this, apparently.

I'm guessing that the source code that he took, belongs to him because he wrote it because he invented it maybe. If he didn't take the source code in digital form, then he would probably have taken it anyway because it is stored inside his brain, since he probably invented it, and humanity still has not acquired the biotechnology necessary to selectively delete human brain memories. So, therefore, he basically had no choice but to take the source code with him since when he left the company, he moved his body from one company to the other one, and contained inside his body, is his brain.



When working for a company, a developer typically assigns the copyright to the company. Even if they own the company, because this can provide them with legal protections.

Even if he did hold the copyright, at the time ID Software was acquired (and I doubt this, because it'd probably alarm the rest of the employees), the terms of the acquisition certainly included transfer of the intellectual property. So, at that point, if not before, he lost control of the code he wrote for ID Software. Let's not forget - he got paid for it. Probably a lot.

This is where copyright usually ends. There are other legal agreements and mechanisms that might come into play, but if he simply develops something that is similar to what he did before, it shouldn't be a copyright violation.

He still has a choice what to develop and where to work. If he was under a non-compete agreement, then that would've prevented him from working on any competing products, for a predetermined period of time.

BTW, California doesn't have non-competes. But I think Carmack was in Texas, and what matters is where you were when you signed the agreement.

That said, I didn't see anything about non-competes - just NDAs and Copyrights.


Okay, I asked a patent attorney about this. With the disclaimer that he's not an expert on copyright law, he said he thinks the compiled code would be considered a derivative work.
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