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Re: Hyperion files counter claims
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I think that the court case has taken an unpleasant turn. I understand Hyperion has no choice.

The best we can hope for is that AmigaOS4.0 comes out of this mess and can be used on any PPC hardware.

Maybe GregS was right when he said they are both holding back.

The Party Pack fiasco won't play well with a Jury neither.


Edited by Mitch on 2007/6/15 6:46:20
The court case is like a thunderstorm after a long humid summer.
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Re: Dirty tricks abound....
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@ssolie

The comments were pulled off The Register overnight. There was a comment about pension funds being raided that was deleted too. It might be prudent to follow their example?

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Re: Access Denied: Amiga Inc loses first stage
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Edited by Mitch on 2007/6/14 23:28:50
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Re: Hyperion files counter claims
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Seems that Hyperion isn't going to take advantage of the injunction being dismissed and release anything for ACUBE, instead it is going for the main prize.

I think we just saw this escalated a magnitude.

Anyone know what the legalese "unclean hands" really means?


Edited by Mitch on 2007/6/14 23:26:17
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Re: Access Denied: Amiga Inc loses first stage
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@derfs
Quote:

as i said 'no clear case for them to win'. doesnt mean they cant win, or will lose (which is what you incinuated)

That isn't what I insinuated at all. On the merits of the evidence before the court it is not likely they will succeed in the eyes of the judge. What I am trying]to get across is that not only is the judge unable to dismiss the case at this stage ( it is an injunction, not an interim judgement ) but that more importantly that unless Amiga Inc improve their evidence they are pretty much set up to lose as the onus is on them to prove their case. That being said, it is worth the risk for Hyperion to press on and release what they like. However Hyperion might have decided to show "good faith" and to sit and wait until the product is complete.

Quote:

i agreed with you, and now you disagree with your own point? its because they can do what they want that they are being taken to court.


I don't understand you at all. Hyperion has never been able to do what they want, they have operated within the limits of the contract ( where possible * ) and has not released AmigaOS4 on any other hardware than for which it was licensed under the agreement with Eyetech. This has unfortunately allowed Amiga Inc to block AmigaOS4.0 ever since Eyetech left the business of making AmigaONE hardware.

There are three main reasons for delay:

1. Amiga Inc not providing sources in a timely fashion as a prerequisite to the contract. This is the first material breach of the contract.

2. The change in prerequisite hardware, for the longest time Hyperion were without the target hardware required for the completion of the software. This is the second material breach of the contract, and this is down to Eyetech and Amiga Inc.

3. Quality control, the addition of additional features seen as needed to be able to market the product in the target market. Whether or not this is a third material breach depends on delays caused in the contract. It is a successor breach to (1) and (2) and it is arguable, in this context, if it constitutes a material breach.

There is a final reason for 3 years worth of delay:

4. Amiga Inc refusing to license hardware for use with AmigaOS4.0 after Eyetech left the business of making AmigaONE hardware.

It is a subtle situation and I never said that Hyperion have ever been able to do what they want, I am saying that the court will not step in and stop them.


Edited by Mitch on 2007/6/14 23:27:58
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Re: Access Denied: Amiga Inc loses first stage
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@Billsey

"Rightful owner" has nothing to do with the matter at hand. It is what is in the contract that matters.

As for fly by night, well thats amusing since Hyperion has outlived and outlasted two incarnations of Amiga Inc now ;)

As for IP thief, you wan't to be careful how you put that, seems very close to being libellous to me.

Finally, your buying decisions are your own. But this is the first time I have seen a company attacked for improving a product beyond the expectations on a contract.

Mitch.

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Re: Access Denied: Amiga Inc loses first stage
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@derfs

Quote:

that isnt what he said. there is no clear case for them to win, and to always err on the side of caution, of the status quo, which he has done. that is different than saying they will lose.


Page 5:

ANALYSIS

The traditional criteria for granting a preliminary injunction are: (1) a strong likelihood of success
on the merits;
(2) the possibility of irreparable injury to the plaintiff if injunctive relief is not granted; (3) a
balance of hardships favoring the plaintiff: and (4) advancement of the public interest.

Page 7:

In the absence of proof of Amiga Delaware?s status as lawful successor in interest to the rights set
forth in the Agreement, and of Hyperion?s and Eyetech?s written acceptance thereof in compliance with ?
7.12 of the Agreement, it cannot be said that plaintiff has demonstrated a strong likelihood of success on
the merits. The motion for a preliminary injunction may be denied on this basis alone.


Theres more, do you want me to post it?


Quote:

Hyperion have always been able to do whatever they wanted.

Not from a legal perspective. Hyperion, assuming the contract is valid in full faith and without providing notice required that it had been breached they were only licensed to ship for the target hardware. It is in the contract.

This is the bear trap Amiga Inc laid for them, intentionally or not. As soon as Hyperion runs out of patience and announces a partnership with ACUBE Amiga Inc pulls the contract citing clauses on specifically this issue. It is all there on Justia.com.


Quote:
The court case is ongoing, and if amiga.inc win, then they will claim damages if hyperion sell anything, especially to what they were never entitled with in the original contract.

Assuming the contract is fully in force, and assuming that the judge rules all clauses were in force and were not diluted in the slightest then YES if Hyperion sell anything now ( up to now, they haven't - as we know! ). That is precisely what I point out in that paragraph, Hyperion could now go ahead and do these things with at least some confidence that Amiga Inc is going to lose unless it ups the quality of its evidence.


Quote:

Realise that these are companies, and what you are promoting is the same as when certain community members promoted AmigaDE + games + SDKs. look at the laughing stock that became.

That paragraph made no sense to me whatsoever. Could you explain?

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Dirty tricks abound....
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Edit: Removed because source was removed.


Edited by Mitch on 2007/6/14 23:43:31
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Re: Access Denied: Amiga Inc loses first stage
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There is a lot of confusion online as to what this really means and what the court has underscored as issues. I thought I'd try to summarize it for lurkers ( hostile and friendly ) and the site.

What did Amiga request from the injunction?

1. That Hyperion could not use any of the Amiga trademarks or any software that has an Amiga logo or trademark on it. ( This would include BTW anything that said "For Amiga"... )

2. That Hyperion be prevented from blocking Amiga Inc access to the source code of AmigaOS4.0.

3. That Hyperion be barred from selling AmigaOS4 AT ALL.

4. That Hyperion MUST deliver within 10 days all of AmigaOS4.0 - that is EVERY COPY of the source code, binaries and intellectual property to Amiga Inc.

5. That Hyperion notify the court within 20 days of the injunction that this has been done.

The cost of not complying with this is more than the 10,000 dollar bond that Amiga Inc were requiring, it is to risk being in contempt and facing serious damages and prejudicing the case. So Hyperion stood to lose everything.

Let us not kid ourselves, the preliminary injunction was deliberately crafted for points 4 and 5, a hook that forced Hyperion into an unreasonable and prejudiced position.

What grounds was the injunction denied on?

He talked about probable success. This means that is Amiga Inc likely to win on the following prerequisite points required for them to win overall. The judgement is that at this time, no, they aren't:

1. The judge said that he could deny it solely on the basis that Amiga Inc Delaware could not be seen as the successor to Amiga Inc Washington from the evidence as presented when it came to the titles of the contract. ( note: this isn't the same as saying that Amiga Inc hasn't bought rights to the Amiga name, but that the clause in the contract means that rights are granted to Eyetech and Hyperion to do pretty much what they want. )

2. The insolvency term itself would have to be tested in court as it is critical to the decision of either party.

3. That Amiga Inc cannot demonstrated it bought in ( note not bought back if you read the contract with a critical eye and not a gleeful one you would have not leapt to the conclusion that it was a buyback clause ) to the contract successfully, this will need to be tested in court.

Also he brought up issues about the reliability of Amiga Inc's evidence due to contradictory dates, and the fact that the Annex 2 with Hyperion's evidence was not initialled.

What can Hyperion do now?

There is a lot of claims that Hyperion are in the same position as they were before. Not true. It has been clarified by the court that they have freedom of action until the court dispute is resolved. At no point did the court say "no harm, no fault". So lets reverse the injunction phrases to see what Hyperion can do now.

1. Hyperion can use the Amiga trademarks and logos for the time being.

2. Hyperion can block Amiga Inc access to the source code.

3. Hyperion can sell AmigaOS4 as a standalone product, or with another board etc.


(4) and (5) are not reversible clauses so I leave those out.

So while some are claiming that Hyperion can now still only sell AmigaOne based OS4, this is not true.

The contract limitations due to the Judges own ruling is in doubt and he does not think that Amiga Inc will probably succeed based on the evidence before the court.

My "spin" on it

I doubt Amiga Inc have irrefutable evidence - at least they would need to "recreate" it now ( remember the post dated documents the judge picked up on, thats the basis for my comment that they might even consider it ).

So I don't think Amiga Inc are cocksure now, the only thing they will do is try to drive Hyperion into bankruptcy through legal fees and seize their side of the contract as a creditor.

If you don't want that to happen, you need to support the AmigaOS4 project with Hyperion financially.

So I say that whatever Hyperion release now, those that want to see a judgement based on the merits of a case should help Hyperion. If Hyperion lose, then the court, as said in the ruling, will compensate Amiga Inc. If Hyperion release OS4 on SAM or ACUBE or whatever, then this is what we want, and we have a chance to get hold of the darn thing. If the court case goes against them do you think that AmigaOS4.0 will do anything other than become very extinct very quickly?

1. There is no need for a HypeOS or Hyperion OS.

2. Amiga Inc HAVEN'T lost the rights to use the brand Amiga, but if the insolvency clause is shown to be invoked then Hyperion can use the brand Amiga freely.

3. Hyperion is NOT limited to selling AmigaOS4 bundled with AmigaONE unless they VOLUNTARILY stay within the terms of the original contract to show GOOD FAITH.

Amiga Inc can't stop them. Hyperion's strategy now might be "no fault, no foul", that is it won't have to pay damages even if the ruling is partly in Amiga Inc.'s favor. Or it might be more brinksmanship. Amiga Inc. have been allowed to block AmigaOS4 now for 3 years, don't you think it is time to put a stop to this attitude?



( spell checked and identified what was purely my opinion )


Edited by Mitch on 2007/6/14 8:52:46
Edited by Mitch on 2007/6/14 23:30:46
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Re: Access Denied: Amiga Inc loses first stage
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@GregS

Actually the judge can't rule to dismiss a case out of hand at this stage, he is ruling purely on a preliminary injunction. He either supports the injunction, or denies it. That is his sole choice.

Amiga Inc has to provide evidence supporting their claims, they clearly haven't and haven't shown cause for an injunction. It is quite a condemnation of the evidence that Amiga Inc has brought to court, not least where he points out that Amiga Inc's evidence is unreliable because a dated document cites an attachment that is many days into the future ( OOPS!!!! ).

I seriously doubt that Amiga Inc brought anything less than their a-game to this. Why? Because they desperately need an injunction, they desperately need the source code. An injunction and the source code would put Hyperion on the back foot and Amiga Inc would be able to advance with their plans at relatively little cost and risk to themselves. Now they both face a delay before a jury trial is arranged, booked and the jury selected ( and goes through the defense and plaintiff counsel selection and rejection procedure ).

I doubt that Amiga Inc has much more evidence than they do have at this point otherwise they would have shown it, it would have been totally insane of them not to. If their legal counsel told them not to then there is either something wrong with it ( it prejudices their case further ) OR worse than this, their counsel is incompetent.

Amiga Inc's best interests are served in settlement and co-operation, simply because the alternative is to go under with money wasted on legal fees.

If I was entirely biased against them, I'd be sitting here with relish willing them to go on, but I don't want them destroyed. They should use what money they have to eke out a compromise now TAO is dead ( although I suspect that the new owner of the IP is the same venture capital group that owns Amiga Inc in reality ) and use it to pay for some serious developments and when they have a product near launch have budget to advertise it.

Oh, and they need to partner with a better hardware provider than ACK.

A jury trial is a BIG mistake, relying on the much touted xenophobia of the American people - favouring ones own countries companies at least - is a BIG mistake as jury selection criteria will see to that.

The idea with selecting a jury trial would have been to overwhelm Hyperion with the sheer cost of it facing it - the same reason you bring 4 attorneys not 1 to an injunction hearing. Now that Amiga Inc have all the work to do, it is they that will be dreading the Jury trial, especially with the bad press from Kent....

Mitch.

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Re: More on the court case
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hatchi over on amigaworld.net has somehow got hold of the judges decision on the injunction.

The result is Amiga Inc has NOT got its preliminary injunction and will need to decide whether or not it wants to proceed to full trial.

Haatchi quotes:

Quote:

I. Amiga Delaware as Successor in Interest
(...)
In the absence of proof of Amiga Delaware?s status as lawful successor in interest to the rights set forth in the Agreement, and of Hyperion?s and Eyetech?s written acceptance thereof in compliance with ?7.12 of the Agreement, it cannot be said that plaintiff has demonstrated a strong likelihood of success on the merits. The motion for a preliminary injunction may be denied on this basis alone.

II. Insolvency of Amiga Washington
(...)
However, nowhere have the parties to the Agreement defined what was meant by ?insolvent?. There is thus a serious factual dispute over whether (and when) Amiga Washington became insolvent, and the effect of that insolvency on its trademark rights under ? 2.07 of the Agreement. In light of this unresolved factual question, it cannot be said that Amiga has demonstrated a likelihood of success on the merits of its claims.

III. The $25,000 ?Buy-In? by Amiga
Amiga contends that it timely paid $25,000* pursuant to ? 3.01 of the Agreement, and it is now entitled to possession of the source code, object code, and intellectual property to OS 4.0. This appears to be the heart of the motion for a preliminary injunction. Hyperion contends in response that some of the payments were applied to outstanding invoices instead of toward the $25,000 ?buy-in? amount, as provided for in ? 3.01. There is also a dispute regarding the completion date for OS 4.0, which date triggers the due date for the payment; Hyperion contends that the payment was not made within six months of the December, 2004 completion date for OS 4.0, while Amiga asserts that the December 2004
OS 4.0 was merely a ?beta? or unfinished version of OS 4.0. These disputes regarding the payments and the completion date of OS 4.0 cannot be resolved on the record before the Court as it now stands. Therefore, Amiga has failed to demonstrate a likelihood of success on the merits of its claim to the source code, object code, and intellectual property at this time.

*At oral argument it was admitted that due to a calculation error the actual amount paid was $24,750


I can't say I am surprised.

Original reference here:

http://amigaworld.net/modules/newbb/v ... wmode=flat&order=0#384831

Champagne corks will be popping in Belgium that is for sure. Amiga Inc doesn't have a sterling track record in the courts and it really puts eggs on some of the commentators faces who claimed to have intimate legal knowledge and were certain that it would go Amiga Incs way. ( and no I am not referring to anyone on this site here )

However this isn't the end, Amiga Inc could still take this to full trial and wait out the result at HUGE expense.

As GregS said, justice is unpredictable.

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Re: A different perspective
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@DonF

Well assuming for a minute that Amiga Inc has a difficulty facing it over this issue the answer is best found by determining what is their "lunch".

If their lunch is based on AmigaDE/Anywhere then they won't want the Genesi switch and sue trick to hit them ( given Genesi aren't Thendic ).

If their lunch is based on AmigaOS4 then they won't want the Hyperion lawsuit to win.

Depending on what decisions they make, we will have an idea as to what this mythical AmigaOS 5.0 project is all about.

Me, I think they need AmigaOS 4.0 to use to secure a short term contract and get funding to complete AmigaOS5.0. I really don't see how they can complete AmigaOS5.0 this year by getting the source code to AmigaOS4.0 and fighting to get ExecSG.

It would be really funny if AmigaOS5.0 turned out to be scaffolded on AROS....

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A different perspective
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Question: Will Amiga Inc. be able to prove that it is NOT Amiga Inc whilst proving it is Amiga Inc?

Answer: The courts will decide.

Reason:

In order to progress their court case with Hyperion Amiga Inc (S) needs to prove it is Amiga Inc (W) or at least have the same rights and liabilities as same.

However, by doing this, they will be supplying sufficient proof that they are the same Amiga Inc that owes Genesi AmigaDE integration and will have to supply Genesi with rights to the brands and AmigaDE integration!

So they have a choice between two different unpalatable futures. Or am I misreading this?

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Re: Desperately seeking help guide
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@All

Thank you, I got my A1 up and running. I now have a strange problem.

If I boot from an earlier disk for OS4 it works fine, I can install and everything works!

If I boot from the latest update4 it loads kickstart and just goes blank.

I've read through the FAQs on IntuitionBase and it doesn't fit any of the problems described. If anyone has any clue I'd appreciate it, I really don't want to have to rely on an older version...

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Desperately seeking help guide
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To reinstall my MicroA1 in its case. Specifically where the cables plug into the motherboard.

No documentation came with it ( preinstall ) and I know I shouldn't have removed it ......

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Re: More on the court case
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@ChrisH

I never said it was just some tactical manouver. You do business with the people you need to do business with. This is difficult to explain in clear terms.

Mitch.

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Re: More on the court case
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@ssolie

Have the developers said they have stopped work because of being unpaid?

The developers can only be paid when revenue comes in, that can only happen from sales. Sales can only come in when hardware is allowed to ship as OS4 can only ship OEM.

I would ask you what do the contracts with the individual developers actually say with regards to what and when they should be paid?

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Re: More on the court case
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@ssolie

You didn't say updated roadmap originally ( or I missed you saying it ).

The way I see it is that Amiga Inc have been and are in the way of AmigaOS4.0.

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Re: The importance of SAM and ACK
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@GregS

I agree that it needs to be released on ACUBE. I have my own opinions about the ACK thing that I probably should keep to myself.

New hardware, and cheap hardware, will breathe new life into the platform even if in computing terms it remains a minnow.

Mitch.

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Re: More on the court case
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@GregS

Yes well we both know that the community is full of jackals with a small group of genuine individuals wanting to use a computer!

I doubt Amiga Inc had to spend all night debating that sacrifice.

But I totally agree with you, we don't just need AmigaOS4.0 to build some kind of technical foundation on and a buzz, but some kind of future regardless of the "community".

In the court documents there is a submission which shows an email where Hyperion point out they have been willing to go into arbitration for a long while because it is cheaper than hiring lawyers and Amiga Inc has consistently refused.

I doubt that now Amiga Inc has started to spend money on 4 attorneys and is supposed to be putting 2 million into some backwater stadium for publicity for a product suite they don't even have they really want to back down but force a settlement in their favour.

Whether or not I would ever buy a product from Amiga Inc with the current management at the helm or not is a personal choice and I have to say I most definately would not. But that is simply a point of principle now. They have wasted nearly 8 years now with the only good thing to show for it being AmigaOS4.0 which they are busily trying to block.

A final note, I can't claim to be "well informed" or even at the center of things. I never was nor will I be. But enough hard information came my way to see this face off coming a long time ago.

The funniest thing at the moment is seeing the very same characters online who were desperate to prove that Amiga Inc was "bankrupt" or "insolvent" after the Bolton Peck judgement and the McEwen deposition to the Amiga/Thendic court case now just as desperately trying to prove they weren't.


Edited by Mitch on 2007/6/9 9:20:24
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