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I don't have the evidence so I can't make a judgement about whether Zenimax or Carmack is in the wrong here, but this does point out something strange in our co

• lmm 10y ago
  How is the court supposed to judge familiarity? What if jury members think they're technical experts, but aren't? There are always going to be complex technical matters that are relevant to lawsuits - this was the case before software even existed - and the way the system is supposed to work is that rather than the jury bringing their own set of preconceptions on the technical aspects, the expert witnesses answer the technical questions in the court (where they are subject to cross-examination etc.) and the jury makes the factual judgements that have always been their job.
• smacktoward 10y ago
  The more familiar you are with the industry, the less likely you are to be impartial.
• pavel_lishin 10y ago
  > this does point out something strange in our court system and that is where a "jury of peers" which translates to normal people with little to no knowledge of the underlying subject matter. Nothing in the constitution says anything about peers, and the fact that most juries are comprised of people who don't know much about the subject matter comes from lawyers wanting those people on the bench, since they're less likely to have pre-conceived notions - possibly notions conflicting with their clients' goals. If you're trying to convince someone of something, it helps if they start with a blank slate.
  • albedoa 10y ago
    "jury of one's peers" is in reference to "an impartial jury of the State and district wherein the crime shall have been committed" from Article VI (criminal prosecutions) and preserved through Article VII (civil suits). It has been interpreted to mean a broad representation of the population.
    • jessriedel 10y ago
      The point is that the GP is interpreting "peers" in the academic/social sense, when it never meant this in this context, and the word doesn't actually appear in the Constitution.
• pseudometa 10y ago
  Sitting on a jury yourself should alleviate you from worries about jurors not being experts themselves. Jurors are not experts in law, yet every case they sit on the lawyers bring in people to educate the jurors on the law and all aspects that pertain to a case. It is incredibly educational sitting on a jury.
  • dpark 10y ago
    Jurors are not expected to actually learn anything about the law. In fact they are told that they are not deciding or interpreting the law. Juries are finders of facts and the relevant law snippets and their interpretations are given to them by the judge. (Actually if I recall correctly, my jury wasn't even given the actual law text excerpts. Just the plaintext interpretation of them.) It can be interesting going through the process as a juror but I didn't find that I learned much about the law as a result.
    • dragonwriter 10y ago
      > Jurors are not expected to actually learn anything about the law Since jury instructions both ask for a determination of whether a particular legal standard was met (phrased in legal terms), and explanation of what facts (in lay terms) the jury must find to say that that standard was met, I think your statement is not completely accurate.
      • sqeaky 10y ago
        I think the system is not completely accurate.
      • dpark 10y ago
        > (phrased in legal terms) This was not my experience. My jury was given a simplified description of the law with only relevant sections discussed.
        • jartelt 10y ago
          I had a similar experience. After jury selection, the trial seemed to start almost immediately and I was surprised that we were not given more background information or preparation before opening statements started. During the trial I felt like there was a lot of pressure to not ask any questions or ask for any clarifications. Even when the jury asked for a repeat of the definition of reasonable doubt, the request had to be talked about by the lawyers and the judge. Then during deliberation, we had to ask permission to view different pieces of evidence, which generally added friction to the process.
• gravypod 10y ago
  No matter how removed someone is from your field of expertise you should be able to consisely make a case for why you aren't at fault and why. You should also be able to demonstrate using basic logic that the simplest components of two source trees (something that is extremely basic) can show resemblance to another extremely basic component. For example the similarity of example code. How many example source files have you downloaded that demonstrate a graphics library by drawing a cube. I bet they share a decent amount of similarity across most engines. That doesn't mean they are copies. It is through logic like this that our courts are meant to function.
  • Filligree 10y ago
    Why? Why is there an assumption that you can explain anything to anyone? There is no law of nature stating that the maximum complexity anyone can invent is smaller than the complexity the average person can understand.
    • gravypod 10y ago
      I'd say there are very few people who are doing things so out there that they cannot explain what they are doing. We aren't that special. We aren't magical unicors who work in all corners of our galaxy. No we are programmers, PhDs, mechanics, engineers. Our jobs share a lot in common with each other and can be easily broken down to their base components. That's the job of a programmer like Carmack. To break things down into their simplest form and represent them clearly and consisely. Frankly for him it's exactly what he's paid to do. > There is no law of nature stating that the maximum complexity anyone can invent is smaller than the complexity the average person can understand. Unless you think you, or this hypothetical person, is so unbelievably smart that they can operate on a plane so far above that of the common man that they can't explain what they do up there. Then I can see how you can think that way. I personally don't belive that is the case. We as programmers don't do that and very few people do. For example, lets ask this question: How do you advocate for funding for the job you do? You need to market yourself. How do the people you market to market to their bosses? It's not PhDs all the way down the same way it's not turtles all the way down. There is a simple, consise, and understandable explination for every activity that humanity has done since the beginning of time. Wheather I know how to formulate it is one thing but one must exist.
• ue_ 10y ago
  This is a very common argument against juries, and I think it's one of the most powerful. Of course if you start to fill a jury with people competent in the area being judged, you run different risks, such as bias within the field. And it's still not clear that it would help with delivering justice. But if we take the idea of a jury to be about judging by one's peers, it should be patently clear (heh) that the jury ought to be composed of the peers of the defendant. As to how that works when there's a corporation on trial, I don't know. I have the funny image of Google and Oracle being judged by Microsoft, IBM and the FSF in the jury box :)
  • meanduck 10y ago
    What if jury_of_peers = random12(peers(defendant) + peers(prosecutor)) OR random6(peers(defendant)) + random6(peers(prosecutor)); peers(X) is declared/set by X. num(peers(X)) >= num_citizens/10 so that corrupt X cant set 12 yes men. This would incentivize X to be good to peers(X).
  • Avenger42 10y ago
    Ignoring the idea of a corporation being judged by other corporations, the idea that "peers" should be judged more strictly (i.e., limited to "people in similar situations" monetarily, professionally, etc.), I feel like you would run a very clear risk of creating juries that function similarly to "good-old-boy networks" that are unwilling to judge too harshly.
    • cannonpr 10y ago
      This risk is very evident in medical review boards for doctors and several similar boards for lawyers and judges across various countries.
    • afthonos 10y ago
      That's the whole (original) point though. Historically, people would be taken away from people who had known them all their lives, be accused of something fantastical, and be condemned on the strength of he-said, she-said. In the specific case of the USA, a big complaint of colonists is that they would be whisked back to England for trial ("For depriving us in many cases, of the benefit of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences:") Peers are supposed to know you, your character, and your history. It's the only hope you have of being truly considered innocent until proven guilty. The default situation of a juror should be "I can't believe they did it; convince me", not "I have no idea". More important, if a jury starts at "I have no idea", they're realistically starting at "this person wouldn't be here if they hadn't done something; they're probably guilty".
• albeebe1 10y ago
  I may be wrong but don't both sides get to choose the jury? If that's in fact the case, then the jury is made up of a group of people that both sides want making the decision.
  • JadeNB 10y ago
    > I may be wrong but don't both sides get to choose the jury? For what it's worth, based on my expert knowledge (I once was summoned for jury duty, but was not needed), neither side gets to choose anyone, only to exercise a limited number of dismissals. That is, they can only decide 'no' (a certain number of times), not (except indirectly) 'yes'. Thus this: > the jury is made up of a group of people that both sides want making the decision. is more like "the jury is made up of a group of people who were judged least likely to make an undesireable decision", which I think is meaningfully different.
• nazka 10y ago
  It is true and it would help to have a jury that has the technical background of the subject. On a note though unfortunately even with a jury like that, it doesn't resolve the problems for preferences and bias that someone can have. We still have "wars" over Go vs Scala or React vs Angular.
  • seanp2k2 10y ago
    Yep. If it were me, I'd find that everyone should leave Carmack alone because his CD player is currently paused and the future of the VR gaming industry depends on the work he could be focusing on right now :)
• E6300 10y ago
  I didn't know the US had juries even in civil cases. That seems a bit effed.
• rayiner 10y ago
  I think the Google v. Oracle example actually cuts against your theory. In that case, the jury found non-infringement on the patent claims, and literal infringement of portions of the code and API. The real question in that case was a legal one: whether the structure and organization of APIs was copyrightable. On appeal, the federal circuit found that it was, and remanded for a determination on Google's fair use defense. Another jury then found that Google's incorporation of Oracle's API was fair use (and that is on appeal). I'm not really sure how a jury of software developers would have changed the result. And as a general matter, I'm wary of assertions that judges or juries would decide things differently if only they had "knowledge of the underlying subject matter." In Oracle v. Google, for example, the policy question was: does the fact that Google copied Oracle's API for interoperability purposes outweigh the fact that Google is making a profit by leveraging a platform Oracle built? The disagreement between the Federal Circuit and software developers did not have anything to do with knowledge of the subject matter. Everyone understood what an API was, etc. It had to do with values and priorities. "Interoperability" is something with a lot of value in the software field, but is more or less irrelevant to copyright. On the other hand, protecting authors from others profiting off their efforts is the primary value underlying copyright.
  • sokoloff 10y ago
    Take Lego-branded building bricks. The functional aspects of the bricks (the sizes and tolerances of the pips) are not copyrightable. Being essential to their function, I am allowed to make competing bricks with interoperably-sized pips and voids. (I am of course prohibited from putting the Lego script on the pips or from marketing them as "Legos" or anything more than "compatible with Lego brand building bricks".) In so doing, I'd be profiting in part on the Lego-built platform, yet it seems crystal-clear in IP law that this is permissible.
    • rayiner 10y ago
      The Lego example rests on the idea that you can't copyright a functional aspect of a design (because then copyright would impinge on the domain of patent). The interoperability angle there is incidental. And applying that reasoning to code leads to the weird result that the "functional aspects" of all code (not just APIs) should not be copyrightable. Indeed, once we're talking about functionality instead of interoperability, there is an argument that APIs should be more protected than ordinary code. APIs by themselves don't do anything. They're creative, rather arbitrary designs.
• kyleblarson 10y ago
  It would be interesting to know if any CS people were actually in the jury pool for this case, and if so, were they selected or dismissed.
• sandworm101 10y ago
  Juries are a choice. If they want an expert then both sides can go for a bench trial. If a judge isnt expert enough, then you are out of luck. Matters must be decided in a manner understandable to the outside world. A courts decision must be understandable by other courts. Otherwise every case will be ad hoc, leading to essentially random outcomes. Dont like it? Then settle out of court.
• Bamafan 10y ago
  FB post is solely about "literal" vs "non-literal" code copying. These are words that the lawyers chose to use to communicate a complex (for non-programmers) idea to a bunch of non-programmers. I think of "non-literal" code copying as R&D. I think the Zenimax lawyers were claiming that the R&D that Carmack did for the Occulus, while still an employee of Zenimax, was key to making Occulus valuable. And it seems like Carmack even used Zenimax IP (Doom) to develop a demo that was shown to investors, without Zenimax permission. Essentially Zenimax was used as an R&D arm of Occulus. Pretty messy case and pretty different from Google vs Oracle IMO.
  • whyileft 10y ago
    "non-literal" copying is garbage. We already have a legal term. Its called a derivative work. Which is what taking a Harry Potter book and changing the names of the characters is. Lawyers create new terms like that to intentionally make it difficult to apply previous case law to the case at hand. Both for the opposing lawyers and any judges on appeal.
    • bdowling 10y ago
      You have that backwards. Taking the Harry Potter text and copying large portions of it, even if the names are changed, would be literal copying. Writing a book that borrows the story, characters, and relationships between the characters from Harry Potter, but written in your own words using new character names, would be non-literal copying. A derivative work, on the other hand, would be taking Harry Potter and making something new from it, such as writing a novel about a new adventure involving Harry and his friends, or adapting Harry Potter to a new medium like a VR game.
• kleiba 10y ago
  As our society becomes more specialized it seems a bit absurd to have people make judgements mostly based on how well each side can make incredibly complex things comprehensible and convincing without any real understanding of the underlying principles in the field. Just a side note: the same argument can be applied to the political parties and elections.
• deleted 10y ago
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• conanbatt 10y ago
  If you judge a doctor with a jury by doctors, they wont convict. Its the blue wall of silence. The more related the jury is to the defendant, the less likely he is to get convicted. Not to mention that the same bias you have could damage people. For example a doctor performing euthanasia might get compasion by most people, but disdain by the doctors that chose to never do such a thing. There is no fair or justice, its not an objective value. Its a show we do because we know it keeps some people content, and some others fearful.
• maxlybbert 10y ago
  After I served on a jury, I became convinced that the biggest benefit they provide is that they put an upper limit on how complex, convoluted, and one-sided the law can be. I think there is some value in occasionally rounding up average citizens, explaining the law to them, and making them listen to a trial.
• hydrogen18 10y ago
  I think of peer as meaning someone who is my legal equal. Historically in the US this meant a slave could not testify against me if I born a free white man. Obviously we are well past the point of having multiple distinct classes as such. But the point being is that my peer would be someone who is on equal legal footing with me. For example, in a criminal case a police officer should generally not be part of the jury. Even if the case is well outside his jurisdiction they enjoy far too many legal privileges to be considered my equal. This isn't a condemnation of police, it is just how things are. I am actually far more afraid of being judged by a bunch of 'experts'.
• pmoriarty 10y ago
  This is a very tricky and interesting subject. A black man being tried by an all white jury who are presumed to be his "peers" is often viewed as a racist miscarriage of justice. Many would take the position that for a trial of a black man to be really just the jury should have some black jurors on it. Some may even go so far as to say that only an all-black jury could ever be fully comprised of that man's peers. But how far should this be taken? Perhaps the black jurors, though they share the defendant's skin color, are in a completely different socio-economic class. Maybe the defendant is poor, uneducated, and from the inner-city, while the jurors are all wealthy and educated, and grew up in the suburbs. Or vice versa. How much does the defendant really have in common with the jury? Are they really his peers? Often juries are supposed to be randomly selected from members of the community. The assumption is that if they're from the same community, they are peers. But what if the defendant has little to nothing in common with their community? Would their judgment of the defendant be informed or fair? But if that's not fair, how much like the defendant should the jurors be? Should homosexuals only be tried by other homosexuals? Heterosexuals only by other heterosexuals? Pedophiles only by other pedophiles? Drug users only by other drugs users? Murderers only by other murderers? Christians only by Christians? Whites only by whites? Blacks only by blacks? Politicians only by other politicians? Judges only by other judges? Police only by police?
• cloudkj 10y ago
  Having just served on a jury, I can say that I've actually gained some confidence in the American justice system and its use of a jury of peers. When it comes down to it, the task for the jury is fairly straightforward, narrow, and well-defined: to examine the facts as laid out in the trial and to objectively execute the law as it is defined at the time while being fair and impartial. Their backgrounds and prior knowledge and experience are not supposed to come into play, and to the extent that the judge and attorneys have chosen a panel of objective, intelligent jurors, their backgrounds really do not and should not matter. I recently read a comment that framed the law as being software. After my experience, I've come to think of juries as being the computers that run such "software" in the context of a trial: to execute the instructions as handed down by the judge, given the evidence and testimonies as factual inputs and to ultimately output a verdict that follows (as closely as possible) the rules codified in the law. I feel that the problem really lies in the evidence provided by the expert witness. In this particular case, it sounds like there was an expert witness on both sides, but perhaps one witness was more effective than the other, at least to the jury. To reduce any bias, ideally there are (many) multiple witnesses providing testimony on the same issues, so that the evidence presented will average out to be as close to the factual truth as possible. Unfortunately, that's almost certainly not scalable in the context of a trial.
  • Lawtonfogle 10y ago
    Being on a jury gave me the opposite experience. The guy who slept through parts of the trial was given as equal a say as those who stayed awake and the topic of them sleeping was a joke to many of the jurors. Charisma counted for more than reasoning. It made me have a lot more believe in the statement that the innocent seek trial by judge while the guilty seek trial by jury.
  • refurb 10y ago
    I had the same experience. There were some really varied backgrounds. There was an engineer, a consultant, a nurse, a couple entrepreneurs, a handful of blue collar workers and some stay at home parents. I was really impressed how well they grasped the concepts of American justice. When someone said "he's guilty because of X", a lot of people jumped in and said "we're supposed to look at alternative explanations and if they are reasonable, we need to find him innocent." It much improved my faith in the jury system. This was in SF and I will say that all the 20-something tech guys did their best to get our of jury service. In fact, all of them did.
• rayvd 10y ago
  How would it be assessed who is an 'expert' and who isn't? I worry this would fall to some bureaucracy and all of the pitfalls that lie therein. I prefer the downsides and risks involved in a randomly selected jury pool.
• sebastos 10y ago
  I think technical people are better equipped to appreciate how important a seemingly small engineering difference can be. You have to spend a lot of hours wrestling with a complex topic before you realize how hard those innovations are to come by, and how big of a deal they are. Another tragic example of "tyranny of the tech-illiterate" was the Honeywell v Sperry Rand case: https://en.wikipedia.org/wiki/Honeywell,_Inc._v._Sperry_Rand_Corp https://en.wikipedia.org/wiki/Honeywell,_Inc._v._Sperry_Rand.... One of the rulings re-attributed the invention of the computer to John Atanasoff based on his ABC machine. The judge ruled "close enough" despite a litany of hugely substantial differences between the ABC (basically an electronic calculator with a primitive electromechanical "memory"), and the ENIAC (the trunk of all modern computing). Like the Zenimax case, the ruling appeared to be based more on the court's intuitions about the circumstantial evidence than the actual technical facts. I suppose you make the best judgment you can. It's just too bad we can't think of a way to select people who are capable of better judgments.
• stan_rogers 10y ago
  In the USA, there is no special right to a "jury of your peers"; just to an impartial jury of sufficient size. The "peers" thing was intentionally avoided, since it was tied up with the British class system.
• mhandley 10y ago
  I've testified as an expert witness in patent cases in both the UK and the US. In both cases I was testifying that the patent in question should be invalid, and in both cases we were successful. It's much harder to invalidate a patent, because the burden on proof is on you. The UK and US systems are very different - in the UK you testify in front of a professional patent judge, and they tend to be fairly technically clueful. Both cases were very hard work - top patent lawyers are very smart, very well paid, and are experts at finding ways to undermine your credibility. Where the UK and US differ is in how the lawyers go about trying to undermine credibility. It's much harder in the UK to get away with claiming something without it being supported by careful evidence. At one point in the UK case, the issue came up of whether it was technically feasible to run X windows over a dial-up modem. I said that it could, but it certainly wouldn't be quick. When their lawyer tried to dispute this, the judge chimed in, and said he knew personally that it could, because he'd done it himself years before, and could they move along to their next question please. I had a hard time not laughing. The lawyer's strategy in the UK seems to be to start from a point the expert agrees with, then take them step by step, each step being reasonably in itself, until the expert ends up contradicting their own evidence. Generally, in the UK, if the other side manages to find an angle on something where you don't have evidence to back up your point, you usually need to concede the point. If you don't you lose credibility with the judge, and then it's all over. To avoid such traps, you need to know the 2000 pages of evidence so well you can jump to a particular page, where there's evidence to back your point up. In the US, you need to maintain credibility with the jury. That's really quite different, as they're not technical. You've got to look them in the eye, and do your best to explain how it is in minimally technical points. They often won't be listening to the technical issues, but just trying to decide whether you're lying. They'll likely go with whichever expert they decide to trust most. I've never testified on something I didn't believe in, so looking the housewives in the jury in the eye and trying to explain earnestly was not so hard. I think juries are actually quite good at detecting who is being evasive if you talk straight to them, but few technical witnesses feel comfortable giving evidence, and this adds noise to the process.
• njharman 10y ago
  Peers doesn't mean people "like" you, with your same knowledge. It means people with the same level of authority as you, which these days is none at all. Members of your society with no vested interests other than justice. It means you aren't judged by the police, the judge, other parts of government, etc. It's not perfect, probably just the least imperfect option.
• SZJX 10y ago
  This makes little sense. Certainly the court itself should be able to find some expert which weighs in on the matter as a third-party instead of letting the sides involved spin their own stories? Would that be complicated?
  • dragonwriter 10y ago
    It's not complicated, it just means on disputed facts the courts selection of a single expert will decide the only viewpoint presented to the trier of fact (which might also be the court). I don't know why we would prefer that for general "background" facts that are in dispute which are relevant to evaluate the more direct facts of the case any more than we would for other types of evidence.