@GregS

Actually I think your logic is without fault, except for one point, but that is due to lack of information on the table.

What I am about to assert I can't back up in public. I freely admit this, so I am going to present it very carefully as speculation to avoid defamation of character or being pulled into a court case myself. So what follows is, as they say "pure fiction", read into it what you will:

Quote:

At some point Hyperion would have had to shut Amiga Inc out of their change control system, and throw them off their mailing lists. When that point was will be an indicator of when the realised what KMOS was up to. The project developers will know exactly what that date was if it took place.

I would guess that it would have had to have been as soon as they realised that KMOS thought they had full rights to demand it - after the Thendic/Amiga lawsuit. Probably some amount of time for both parties to size each other up properly. Say 11 months later?

I think that Amiga Inc has followed a distinct and almost brilliant strategy here. However I think also it was pretty obvious from early on, and Hyperion and its developers have taken measures to protect themselves.

So instead of all this boo hoo crap for Hyperion and Amiga Inc, let us be honest with ourselves. They both saw this coming, and they both needed it to happen. KMOS/Amiga Inc want full rights reverted to them and have since the start, and Hyperion want full rights reverted to them. Whatever, they both need clarity.

If Amiga Inc transferred rights whilst failed to inform their partners in the contract then they are in significant material breach of the contract. Add to that their inability to fulfill the original terms of the contract - deliver OS3.1 source code - they are in material breach twice.

This is why it isn't cut and dried, regardless of motivation, both parties aren't acting for "the good of the community" but it is the endgame of a very clever chess game played by both of them.

This is why I can't see them EVER working with each other again. I also can't blame either party from a purely business point of view.

From a moral point of view, from a benefit to the community point of view, I think Amiga Inc has fucked up the market for AmigaOS4 for the last 3 years and sacrificed it deliberately because they saw regaining the source code on the best possible terms for them as far more important.

What else could they do I suppose? Business isn't about altruism, but let nobody be fooled here, this is what the motivation really is - business.

Why though..... the project is of so little value now.

Heh lot to read this morning, I'm going to be a while before I reply to everything!

@ssolie

Quote:
Well OK but I'd be agreeing with you if it was Hyperion bringing the court case. My take on it is that the $25k does not buy in to the complete package that is AmigaOS4. Under the terms of the contract what it buys is quite limited. On the other hand, I don't think that Hyperion should be shpping their current product as "AmigaOS4.0" but "AmigaOS4" ( the libraries etc ) PLUS "Extensions". But that is a syntactic issue but will go to the heart of what the court decides Amiga Inc is entitled to.

But it isn't a straight contract "we pay you X and you do the work on Y". It has many other clauses that speak about revenue rights. It is common for a product to be comissioned either at a high price for exclusive rights, or a lower price with some rights assigned to the developer in compensation.

And here is the key point.

Amiga Inc want to dissolve the contract, and claim they already have (see 1). This means that Hyperion won't just lose the source, but revenue rights too. This amounts to more than just 25k.

So if I was the developer I would say that I need 30 days to fulfill the delivery of source. I would then strip anything out that was not covered under the original contract, go back through the library system to the 68k versions of the libraries and license petunia. Given WarpOS is already "available" the terms are fulfilled.

However what you have to think about is that Amiga Inc were originally in breach. Once a breach occurs a business has two choices. (a) Enforce it formally. (b) Grow the remit contract organically to fulfil the spirit of the contract.

So to me it seems that Hyperion have done (b), they have consistently bent over backwards and delivered far more than they were asked for.


(1) But they aren't so confident that they have correctly annulled the contract because they have put 25k into bond to fulfil the terms of it!

Quote:
These are all valid points though. When you are being attacked legally you have to build a defense whether it be on nit picking points or substantive points you have to do it. But I appreciate your perspective.

Quote:
I think that is a leap. We did get a roadmap beyond 4.0 at one point, I remember it. It had bits showing when Intent would get "hosted" etc. However, in the case that my memory is incorrect, it sayes in the contract that the rights to 4.1 and beyond revert to Amiga Inc, so how could they? They would have to be Amiga Inc.s roadmap.

Quote:
Well yes, but just having the brand isn't enough, I've said before how a contract dilutes rights in a specific way. Of course Amiga Inc can't just go away, that is obvious. If they do they are accepting a challenge to their rights and the value of their company ( what there is of it ) diminishes accordingly.

Quote:
But the point is, Hyperion doesn't own the rights to all of what you have on the CD, and never claimed they did.

@acefnq

The question is, what where the terms of the license agreement from Gateway, where they fulfilled and who currently owns them now?

@acefnq

I remember the first edition of the joint press release announcing the branding programme stated that Eyetech was exempt from the terms of the programme.

It is obvious that Amiga Inc have been deliberately blocking Hyperion on Amiga OS4 with granting licenses to third parties. The old excuse that they used to spread around on IRC that Eyetech was the one standing in the way each time was clearly bullshit now we see their declarations of how in touch with Eyetech they really were.

Hyperion could have ( and should have ) challenged Amiga Inc.'s right to block once the asserts where not correctly transferred in the first place. But this can been seen as acting in good faith and only undermines their position slightly - and not fatally.

Eyetech left because people had stopped buying the product in sufficient numbers to justify the outlay at manufacturing time. There is only so long a company can take a loss for.

Why this was is down to Hyperion not releasing something they called final in time, down to black PR on the forums, down to minor problems with the hardware and mostly down to cost.

The Amiga market is dead, it just hasn't been declared so. The only way to revive it would be to get on and use what we have available, which IIRC is the reason amigans.net was put together in the first place.

@acefnq

You could make the case that a company that is technically insolvant does have the right to sell assets in order to try to break even.

But transfer them, that is tricky. Morally wrong IMO.

@Mikey_C

Hyperion certainly has the better lawyer. If with four attorneys that is all that Amiga Inc can argue in 30 minutes ( 25 pitch, 5 rebuttal ) versus one for Hyperion who was concise and accurate then they really are in trouble. However they will up their game, and bringing along a load of lawyers at the start is just a way of showing your arnaments before the battle.

Hey we got 4 long range cannons and a handgrenade! Be intimidated! Look how deep our pockets are!

Even the judge commented on it.

To me, that is a sign that they know it isn't done and dusted, a sign of weakness.

One decent, smart and dilligent lawyer would have been a better investment. Amiga Inc's legal team needs to bring their A game next time or it WILL become expensive. Whilst a judge might do the thinking for a lone lawyer against a team of 4 I doubt that he will compensate the other way around.

Another tactical misstep - in my view.

A lot of "ifs" and cause that Amiga Inc has to get dismissed by the judge to be sure of the very limited success this court can achieve for them.

Their best hope is if it is heard in front of a jury, because juries are frequently too collectively thick to understand the nuances of contract law and shell games.

As soon as legal counsel starts to use sarcasm, you know he has got nothing tangible to show.

The more interesting thing is going to be to see whom has changed their mode of attack from Amiga Inc to Hyperion since the Thendic court case. Then you know who really despises AmigaOS4.0 and Hyperion as opposed to what they claimed at the time.

I see a temporary injunction coming out of this, the judge not going against either side in reality and both sides will claim victory in their own way.

You have to ask yourself if Amiga Inc realised that the effect might be to end up with nothing and kill off Hyperion, in which case that might illustrate their deepest motivation.

@PEB

Unfortunately that doesn't have to be the case. The judge can do pretty much what he likes to create new terms to achieve resolution so long as those terms are within the jusdiction of the complaint and cover only the plaintiff and the defendant. I think for Amiga Inc to win this the judge has to overlook certain major errors on the Amiga Inc side, and those on the Hyperion side which is why I think any ruling would not be entirely in one or the others favour but an enforced compromise.

Hyperion could end up in a sort of MorphOS situation, except this time they really would be an ancestral branch of AmigaOS instead of something re-engineered. Patches could be released "unofficially" to support various PPC targets.

But even if Hyperion lose partly or fully, that still doesn't mean that Amiga Inc get a working AmigaOS4.0 build tree ( or anything like it ) just the parts that Hyperion owns directly.

Say for example they did win, and the court orders that Hyperion has to hand over the source code that they are legally in a position to do, and Hyperion also has to resolve issues with its subcontractors. Putting appeals aside, to show Good Faith Hyperion could hand over the original materials used on which to build the project that they directly own .... warp 3d? Anything else that they directly own ( makefiles? ).

Then they go to court to secure the subcontractor rights one by one. OK so the judge has set a time limit on this in Washington. Fine. The court cases in Europe will overrun this regardless ( or the time limit will be so long it won't matter ).

Again we put aside Hyperion declaring bankruptcy.

What will the judge do then? Fine Hyperion? Demand contractual rights that are held and under jurisdiction of EU countries be rescinded? That is outside the authority of the court and cannot be done. So we reach an impasse where the only thing Amiga Inc gets out of this is a legal bill, some useless bits of source code and maybe Hyperion goes under. Maybe Amiga Inc then buys out Hyperions assetts, they still then have to go after each individual subcontractor in court to overcome their copyright ( if even possible ).

There is no way a judge in Washington state can prevent this situation.

What would be sensible at this point is for Amiga Inc. to put in a proper offer to Hyperion, with a time limit on it. The money to go into escrow, and only released once the full product and all sources and rights have been released to Hyperion ( and thence to Amiga Inc ) before that timeframe is up.

We are probably, in my view, looking at a 60% chance that AmigaOS 4.0 will be killed off in one way or another and a 40% chance that in some shape or form a compromise will be set out where Hyperion ends up with full or partial rights to get on and actually claw back some money from the project without Amiga Inc. interfering.

If Amiga Inc Washington had wanted Hyperion to make money from this, they wouldn't have stood in the way of every single hardware project ( apparently bar one, but what is going on there I wonder, could it be because the guy behind it is the same guy who claimed to get it running on the Pegasos to Bill Buck? ).

http://news.justia.com/cases/amigahyperion/370498/37/0.pdf

Well worth a thorough read to see how both sides are arguing. Again, even though they only have one lawyer, Hyperions seems the most competant and sure of his facts and brings up all the issues that I thought he would.

Sorry to sound smug, but this new document confirms my original reading of the tactics of both parties.

This is Amiga Inc.s own testimony:

"All we want here is the code itself. The contract set the price for that at $25,000."

"Yes, they are seeking to exploit the benefit
of that work in the marketplace. We understand that. We are not trying to stop that."

Hence why they wanted it in discovery....

Plus there is the unfortunate issue of redacted and backdated documents in the Amiga Inc submissions, the clauses in the Hyperion/Amiga contract and the fact that they still haven't paid the full amount ( and want to put it in bond, almost an admission they haven't paid Hyperion ).

Yes, the also want to strike from the record fundamental items of Hyperions defense.

Whoever you consider morally right in this, Amiga Inc failed the moment they couldn't get the source code in discovery because even if they ( unlikely ) win this one, they then have to wait while the protection of individual subcontractors is overcome.

In that case, it would be most amusing if Hyperion declared itself insolvent, it would mean that Amiga Inc would have to persue in a foreign court ( Belgium - and others ) each individual developer.

This is priceless. Absolutely hilarious, Amiga Inc (Washington) obviously thought they held all the ace cards and it turns out their hand is very shaky indeed.

The lawyer for Hyperion also brought up the facts that:

1. The definition of what Amiga Inc wants delivered to it is too vague.

2. That the court does not have jurisdiction over the subcontractors.

I read all that transcript and I couldn't help being underwhelmed by Amiga Inc lawyers reasoning. It seemed to be partly a "it is not fair" rant wasting his 25 minute slot. If I was Amiga Inc. I'd fire him.

Whilst the Hyperion lawyer pointed out all the technicalities that they had breached, the implications of the suit, the juridiction of the suit and raised cause and had contractual documents.

Both sides brought up unsigned press releases, which don't have the same weight. Emails do have a bit of weight, and Amiga Inc did a footbullet by claiming in their original rebuttal documents that they had no idea that the Freidens were not direct employees of Hyperion yet wants them dismissed as third party hearsay because they aren't!

Duh!!!!! Honestly, this is so far totally inept on the Amiga Inc side, and I have to say they don't stand a chance unless the Judge forms his own views of their case as their lawyer doesn't seem to be doing a very good job at all.

I almost feel sorry for them.

GregS, read the PDF above, it is an oral transcript and a summary of what the issues are better than you will get from me or any other armchair mouthpiece. You don't have to comment but it is well worth it.

@GregS

I guess what I don't follow more than anything else you have said is why having been in a court case means you can't read the current documents. If it is a personal thing, I have to respect that ( i.e. you just can't face it, the thought makes you sick to the stomach ). If it is a legal thing then surely you are declaring some kind of material interest?

Regardless, I will try to stick to the generalities, although it does limit the legitimacy of the discussion.

The transfer of IP

This is far from the lynchpin of the Hyperion defense, but it is an acid test that Amiga Inc need to pass before we get to the later stages:

1. Amiga Inc need to prove infringement of patents.
2. Amiga Inc need to prove infringement of copyright.
3. Amiga Inc need to prove infringement of trademark.
4. Amiga Inc need to prove breach of contract.

I don't think that just because Amiga Inc. ownership of patents, copyrights and trademarks has gone unchallenged before now it sets a precedent that it must go unchallenged.

What if

Say a miracle happenned and the judge ruled unequivocably in favour of Amiga Inc on this issue That Amiga Inc. does own the patents, does own copyright of Amiga OS 3.1 AND the Olaf Bartel rewrites what can Amiga Inc. get out of this if the contract has to be enforced?

1. A legal right to demand access to the Amiga OS 4.0 to determine what is theirs and what is not. Possibly. I'd question whether or not this is practical, and would just lead to further suits in Europe. But this leads into point 2 as to what they would have to be shown in order to satisfy any court order. This is probably what they are really after.

2. A legal right to the Amiga OS 4.0 product definitions as defined in the original contract. This does not include ExecSG, as what was originally defined was a WarpUP loader. It would probably cover any rewritten Amiga OS 3.1 based core files ( such as the basic set of libraries ) but would also probably be reduced to a non working state by removal of all items that are not covered by Amiga Inc. copyright. This could exclude:

2.1 Work not performed directly by Hyperion on the product.

2.2 Work performed as part of Amiga OS 3.5 and Amiga OS 3.9 ( as revealed in the depositions, Haage and Partner refuse to hand over their changes to Amiga Inc ).

2.3 ExecSG, as already covered.

2.4 Additional features, artwork, contributions, installers, device drivers, retargetting layers, documentation, developer tools.

3 A fine for Hyperion.

4 A block on all further releases of a PowerPC Amiga OS.

For want of a few hundred dollars a kingdom was lost. Even in receipts that Amiga Inc submitted to the court the amount of funds transferred to Hyperion does not cover the basic term of the contract, and that is before the court considers whether or not the 6 month clause was met by Amiga Inc!

What Amiga Inc is up to

I think there is one end game for Amiga Inc in this. That is:

1. Neutralise ( further! ) any PowerPC releases of AmigaOS 4.0.

2. Get the "portable" sources to help write an AmigaOS 5.0 for whatever platform Amiga Inc has in mind without any competition.

As for the agreement with ACK, give me a break, do you really believe any of that arrogant piffle? At best it will be a sop to pacify a small kernal of buyers before the rug is pulled.

Why this doesn't bug you is that as you say, you were only intereted in AmigaOS4.0 as a pathway to a nebulous AmigaOS5.0 future. OK, fair enough, however let us not pretend that Amiga Inc blocking of AmigaOS4.0 being released on any other hardware than the narrowest definition in the original contract was anything other than playing hardball to force Hyperion back to the table to negotiate. Where was the interests of the market served then ? Where was the interests of the buyer served then?

The best thing that can happen at this point is that the "ancestral" AmigaOS sources continue to be developed. Hyperion have proven ( with their peer group of developers ) that they have what it takes to do a damn good job of it. Amiga Inc, what have they proven, ever?

If Amiga Inc really wanted to release an Amiga OS 5.0 and had done a lick of useful work to make it happen then they would have abandoned this drawn out fight a long time ago and dropped in a replacement kernel. Because they have just played a "what if" waiting game, not only has the market dried up even further, they have put themselves behind. I wonder how on earth any venture capitalist worth their salt would ever throw more than 50 dollars at this kind of never never planning.

The worst thing you can do in business is to pick a fight with another business. No one ever comes out looking good, and no one involved ever benefits. Plans get put on hold "just in case" or "because there is no point investing in this because we might get our way".

I hope that Amiga Inc do win the court case, because it will be really amusing watching them struggle trying to use petunia on warpup as a base for building on something that won't even compile.

Idiots. If they spent even half as much time contemplating legal action and chasing dreams in productive activity then they would have technology demonstrators out there of AmigaOS 5.0 working on some foreign kernel and I might just start to concede they have a point.

But they don't do they.

@GregS

Unfortunately once you sign a contract handing over IP rights to any extent, unless that contract is found in material breach in your favour ( i.e. the other party ) then the rights to the IP are diluted regardless of how many times the IP holder stamps their feet. Developments of every new line of code by a third party does not come under the original IP, it is not a "virus" like thing by any means.

IP covers patents. This would require a reciprocal agreement on software patents with the US/EU which is actually a total quagmire.

Copyright covers the rights to copy what is rightfully the copyright holder. Rights to modify source is what would come under the contract, rights to new source would not. It is very distinct in domain and that is why in such contracts you have to write a clause covering it.

Contracts tend to stipulate who owns what IP rights at what given point. If AmigaOS4.0 has been released then the buy-in clause that triggers a transfer of rights held by Hyperion ( note: Hyperion ). Hyperion is disputing that these rights include those of third party developer work ( modification or not to be determined ), and especially ExecSG whose copyrights ownership were not transferred into Hyperion in the first place.

If you read the court documents as well as specific performance Amiga Inc are seeking compensation (i.e. a fine ).

It isn't as black and white as you make out, sorry, and you haven't addressed my point about enforcement in the slightest.

I'm sorry but as it is evident you are talking in the most general terms until you have done reading the court documents in question there is little point in continuing the conversation.

A contract is a contract is a contract. The question that they are having to address in court is whom has materially breached the contract, and which takes precedence. Then if any of the claims that Amiga Inc brought to court should be fulfilled.

I wonder if this is the same 2 million dollars that they wanted to buy Hyperion out with.

Not spreading yourself thinly again are you Bill?

@GregS

Quote:

Then what do you base your opinion on?

Putting this as neutrally as I can:

- The rights that are under dispute are in a contract signed between two parties, which you have not read(?). Both parties claim the other is in breach, and the defendant claims that the plaintiff does not even have the right to as it is not the party with which the contract was signed. The plaintiff is currently arguing that there was an implicit acceptance of them as the other party in the contract by dint of fact that the defendant carried on working with them in that role, and explicit acceptance via emails, even though the contract requires written consent. A tricky one.

- The assertion that Hyperion have been in material breach of AInc rights is predicated on a premise that has yet to be proven.

- The assertion that AInc is in ( and has been since the start ) material breach of the contract is evident as they did not meet preconditions, so long as it is ruled admissable.

- ExecSG, if you read the contract, and letters, has only recently in the mind of Amiga Inc been part of Amiga OS4.0, right up to a month before the lawsuit was brought against Hyperion, Amiga Inc. was referring to it as outside of Amiga OS4.0 and outside of the agreement and even owned outside of Hyperion ( something that they are now claiming is not the case )!

- It is debateable whether or not a lawsuit in the USA can hold water over product changes and enhancements made in the EU, or even be "enforced" ( beyond a fine ) in the EU under existing US/EU treaties or agreements.

- It is disputed whether Amiga Inc. has full rights over the Amiga OS3.x source tree let alone AmigaOS4.x.

It isn't black and white, and even if it goes one way or another I doubt it is the end of the dispute. Hyperion is far from in a weak position if you read it without a predisposition to favour one over the other. Amiga Inc also has far from a weak case, but has a lot of work to do to stake a realistic claim or to get anything tangible out of this.

So if the contract isn't ruled null and void, that the rights of Amiga Inc are upheld, they could end up with, at the best:

1. Hyperion stops shipping or intending to ship AmigaOS4.0.
2. Lots of individual lawsuits as they try to chase down a transfer of rights from the individual developer owned sources.
3. Rights to work performed by Hyperion on the source tree other than ExecSG ( which doesn't amount to a hill of beans ) solely enforceable in the USA.
4. A fine for Hyperion.

To me this is just a threat that is expected to force a settlement out of court due to extreme crushing cost. At best Amiga Inc end up with very little and a lot of work to do, next best ( for them ) is that the outcome forces an impasse, and at worst ( for them ) is that the judgement goes against them and they get nothing out of it and the position doesn't get any clearer as they then have to persue Hyperion in EU courts....

Again, this is why I think they wanted the source code in discovery so regardless of outcome they have a "copy" of whatever missing information there is and I would guess, the onus then comes down onto Hyperion to enforce any breach of IP that results from Amiga Inc using the information submitted in discovery in a future product.

If they were so confident, they wouldn't need that in discovery.

@Atheist

Spin for the troops. I wasn't implying that the lawyer gave that kind of impression, just that somewhere in the transferral of information intent and facts got mangled up to become a distortion.

Not that we haven't seen negative briefing going on a million times before across this community or anything, along with downright lies being presented as "truth".

Finally, in summary, you have to realise that plaintiff and defendant will play a game.

The game is this:

Plaintiff presents evidence, filtering out all that could weaken their case.

Defendant presents evidence, filling in some of the gaps and adding more than the former hadn't realised they had.

Plaintiff desperately tries to rule lynchpin submissions of Defendants submissions inadmissable.

Defendent objects, and tries to do the same to Plaintiff submissions.

They both run out of time on the "creative evidence" phase.

Court hearing(s). Possibly additional evidence and testimony is submitted.

Judge rules, typically in these cases throwing a bone to both defendant and plaintiff.

The ruling is either appealed, or ignored by whomever lost. Further litigation has to be persued.

The "ignore" option is most often invoked, especially when it litigation crosses international boundaries.

I'd say the entire case is bullshit desperation, but I also think that the chances for any Amiga revival are once and for all neutered by all this, which should please at least some of the smarmy bastards who hang around the community.

Other strange comments.

Page 12 of the latest McEwen deposition. 1 through 5.

This is not true. If ExecSG is outside of AmigaOS4.0 at most changes would be required to that, new drivers do not require access to the AmigaOS4.0 source code. At least, not necessarily. One does not follow from the other and nor does one imply the other.

It remains to be seen whether or not the court has the technical competance to realise that this assertion is a load of baloney.

Furthermore:

"However, defendant may be prejudiced by some of plaintiff?s document requests, in particular Request No. 2, which requests the
source code and object code which are at issue in this suit. Further, there is merit to defendants?..."

The fact that Amiga Inc. wanted the source and object code during discovery phase sayes a lot about its own frank internal assessment of its chances - and its intent.

If I was Hyperion, at this point, I wouldn't even be breaking into a sweat.

@Atheist

Based on past experience I would suggest this took place:

- At the end of the hearing legal team got onto client (phone? email?) bringing them up to date with what transpired.
- Client got onto internet, or told someone else a bullshit version of what went on, and provided a spun version.


Given this went on in the Thendic/Amiga court case and at other times too I would be prepared to bet substantial amounts of money on it.

Especially given:

Webchat@2308fbe7.2470642c.isp.belgacom.be

Teleportation invented already?

@Mikey_C

The problem with court submissions like these is that they are tempered with opinion. You can't easily wade through them and seperate the facts from the opinion.

My reading of it tells me that yes, it will drag on and on. But also my reading of it tells me that Amiga Inc. haven't fullfilled all that they would need to in order to gain full rights over Amiga OS 4.0. However, my reading also tells me that if it can be judged that transferral of the appropriate rights from the old Amiga Inc to the new Amiga Inc via the intermediates was done correctly then the new Amiga Inc. can stop sales of Amiga OS 4.0 effectively killing the product in a fit of pique.

What is impossible to tell is if this court case will result in the freeing of Amiga OS 4.0 and later editions of a company that renamed itself to Amiga Inc. in what seems to be a switch operation just for this purpose.

This isn't like the Thendic/Amiga court case which was won by default - literally Amiga Inc not taking it seriously enough and not having the funds to file properly in time. Or maybe it is, maybe it is the usual pissing contest of whom has the deepest pockets.

At best, there will be a clear resolution on the backs of which those who have an interest in Amiga based stuff can make a decision of what they want to do. At worst, the whole shebang will be deadended in a legal checkmate, and again there is a chance to make a decision.

In the meantime you don't have to cripple your own enjoyment of a hobby by living in fear.

@Mikey_C

So the amigans.net DNS registration entry is owned by Orgin from the whois entry.
The physical server is currently paid for by Godfreys and the advertiser(s).
The hosting provider from a simple traceroute is Hetzner in Germany.

Hetzner put their rate up on the deal?

None of my business I suppose

I don't think us mere mortals can see the group.

What is it? "Trolls", "Banned" or "gmx.de" ?