@asymetrix

Quote:

asymetrix wrote: @dirigent Here is another solution : 1) Hyperion modify their website and remove or licence Amiga trademarks. 2) Return the Amiga Source and Object code of Amiga OS 4.0 to Amiga Inc. This means - Roll back source and object code to when the Very first Amiga OS 4.0 CD (that came with just the AmigaOne) - not MicroA1 a few years back. Hyperion can then sell any extra code (each release) as upgrades as it seams fit. EG: the New memory system will not be included when returning the code back - as it is not what was requested by Amiga Inc. Edit: Hyperion is not allowed to provide technical Support to Amiga OS 4.0 neither.

And Hyperion pay AInc a liscense fee for each OS4 sold not on the official AmigaOne. Probably pay infringement fine for still selling OS4 with unlicensed boards despite a request not to. Not really my opinion but just to show that AInc. is not the only bad guys in this mess.

Last edited by stew on 01-May-2007 at 11:16 PM.

@Plaz

I would agree. I think they poured their heart into it and probably went a bit overboard. And that's when trouble seeped in. No longer was it a contracted job, it was personal.
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They poured their heart into it because they thought it would be theirs.

@beh

You're all preatty stupid or not... this is all about the community... n we know it
.. the amiga was a kewl computer back in 1991 or something..... you know what ?
im not a nerd or anything... nerds in this community are welcome tho.. but i think that
we should meet.. Ainc n hyperion n us users.. lots of beer and great fun *weeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee*

@stew

Both companies are at fault and the contracts are a mess.

McEwen Declaration : C.17.2a clearly states exclusive licence to market and distribute OS 4.0 on standalone PowerPC based hardware.

(back then noone envisioned PowerPC/PPC SoC)

Now technically the PS3s Cell processor is also PPC. So we do have a problem.

Where was Amiga Inc when Samantha / Troika was being announced ?

Definately a problem if the 'mystery device' is a much more powerful system than what Amiga Inc has to offer.

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@Plaz

Quote:

Yes, but I was refering more to the myth and history of the Bandito. A shadowy figure with interesting insider information. That would be most helpful these days.

Oh, I see. I couldn't agree more!

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looking at the original agreement Amiga inc may not have it all their own way.

It states that hyperion can use contractors for parts of the OS and that the contractors keep the rights to their work, fleecy claims that he didnt know they would use contractors for everything but in the contract it doesnt state anywhere that they can't so if they used contracters for every part of OS 4 then amiga inc may have no claim to the code. They would have to prove that they have never even looked at the OS 3.1 source code though i think.

Just something i noticed and may have nothing to do with what is really stated in the documents as i am no lawyer and just making the best sense of it that i can.






its all a little too much for my poor brain.

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@TheMaskedMuchacho

Great find esp. if you are a popcorn vendor. The plot continues to thicken.

I still can't get over the fact that this was going on for eighteen months, all the while with Hyperion still developping and probably hoping that AInc. would not get another round of funding, leave them alone and just die quietly and in a wimper...which did not happen...and was not exactly "in good faith".

If I were a betting man, I would bet that Amiga Inc. has slightly deeper pockets than Hyperion so these days and will use this advantage to starve them into submission or into bankrupcy. If AmigaInc. has any money left ofter, they will then go after the Friendens for the remaining important and worth having IP - the core of ExecSG.

The one thing that my crystal ball doesn't seem to be able to show me is what exactly does AmigaInc. plan to do with AOS4 and the IP. The more pragmatic part of me is telling me that I suspect that this is a scheme to retain the IP so the VCs can finally put up the company up for sale, but the other side of me still wonders if this isn't an expensive gamble on AInc.'s part. All I can think of is that they may have a very good idea of Hyperion's current net worth and have perceived this as the optimal time to go for the jugular. If this is the case, this battle could be over very quickly, which is what Amiga Inc. is predicting.

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@TheMaskedMuchacho

Quote:

OS and that the contractors keep the rights to their work,

I read it just the opposite. Work done by contractors are included in the property of Amiga Inc. From Exibit F.......

Quote:

Hyperion confirms that for the receipt of 25,000 USD, Hyperion shall transfer the ownership of the Object Code, Source Code and intellectual property of OS 4.0 to Itec in accordance with the provisions of the November 1, 2001 agreement between Amiga, Hyperion and Eyetech and to the extent it can do so under existing agreements with third party developers whose work shall be integrated in OS 4.0

And this one from the Arctic Agreement in Exibit G

Quote:

2.04 Ownership. KMOS shall retain ownership of the Software. Nothing in this Agreement shall be construed as limiting KMOS's right and title in the Software. At any time prior to the completion of the OS 4.0 "Arctic" demo and no later that three (3) months therafter Hyperion shall transfer all Source Code, interest and the title In OS 4.0 to KMOS including agreements concluded with third party contractors. Hyperion shall use best efforts to secure all rights from third party contractors.

Supposedly the Frieden's have signed Exibit G? The court copy doesn't show signatures. Without those AmiInc's case will suffer.

Now it gets tricky. How do you connect Itec and the current Amiga? And in the Arctic agreement... KMOS to Amiga? Sure it can be done. But Hyperion can pose arguments against. With out seeing Hyperions side yet, their case against looks weak ATM.

Plaz

Last edited by Plaz on 02-May-2007 at 01:32 AM.

@Plaz

It seems you didn't read the original contract:

Quote:

2.06 Ownership. [...] Amiga hereby acknowledges and accepts that some third parties may only grant an Object Code license or may otherwise restrict the rights granted to Hyperion.

Saluditos,

Ferrán.

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@elatour

Quote:

scheme to retain the IP so the VCs can finally put up the company up for sale,

Exactly. No matter if they plan to stay and develope or sell, they must have clear ownership of all the properties. I assume ('cause I dont' know anything) AmiInc has defined Hyperion as a challenger to their complete ownership. AmiInc wishes to make it legally clear that they 100% own/control all object code, source code, trademarks and derivitive works of Amiga OS up to and including OS 4 that are based on previous 3.x sources.

Plaz

@Ferry

Good catch. I don't think that one won't hurt AmiInc's case against Hyperion, but if the Friedens deny Amiga Inc any critical work like Exec, OS4 may completely end right here. Unless of course AmiInc can quickly find a way to replace the work the Friedens contributed.

Plaz

@estik

Sorry. I'm not smart enough to know, so I can only guess at that. And my guesses have been wrong before.

(Weather forecast)
According to the dates we've seen attached to some of the docs, this one looks like it might move quickly to me. I think AmiInc is sporting the funds to push this one through quickly. Exact times will depend on the judge and court schedules. I'll put 5 dollars (or Euros) that will will have some idea within 2 months. (Not that the case will necessarily be over in 2 months)

If AmiInc wins the case in the US, they would still have to enforce the outcome on a company in Belgium. I know nothing about international law, so that should be interesting. Even if AmiInc wins OS4 may be dead or badly crippled with out the Friedens work. But what are those Indian programmers up to I wonder?

I've got plenty of popcorn ready, and I'm hoping for a good outcome for all.

Plaz

Quote:

jiyong wrote: It looks like Amiga might have made some assumptions that weren't true after all.

I dont see a whole lot, I just see alot of signed contracts and backing documentation.

Quote:

The contract was with Hyperion VOF. I'm not sure if that is the same legal entity as Hyperion Entertainment VOF. Is there someone in Belgium that can check this?

Doesnt matter. Either they are the same company, so it doesnt matter, or HE VOF has been breaking AI's trademark for years so AI will own them lock, stock and barrel because they dont have a contract that allows them to use the code, trademarks, names etc owned by AI.

Quote:

If you look at the task list, there are three parts that might have to be surrendered to AInc. 1 - Port Exec to PPC , adapt WarpOS and the 68K emulator Even with this one it is not clear who "owns" the code, as it mentions both Hyperion and Haage & Partner. From my perspective it would seem logical Exec is "owned" by Hyperion, but this is not explicitly mentioned in the text. So you might make a reasonable chance that this can be disputed and therefore Hyperion might not even be in the position to surrender the code as you might argue that H&P also "own" the code and block this.

No chance at all, now that AI has paid the 25K (plus additional fees), Hyperion doesnt own Exec at all, given the fact that its based on AI's IP they never had much ownership in it.

Quote:

2 - Warp 3D / Ami3D It mentions the Frieden brothers, but not the company. 3 - OpenGL based on MESA Same as 2.

It also says the at least one of the Friedens is the Senior Software Engineer for Hyperion, thats going to hurt there case ALOT.

Quote:

All other tasks mentions other names.

And right now Hyperion is scrambling to get them to all say the right thing so Hyperion can get maybe a 10% chance of no losing (they have no chance of winning).

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AInc should stop complaining that Hyperion was an empty shell. Just looking at the task list should have set off some alarms. Especially task 1. And also note that AInc agreed that contractors would own the right to their own source code.

Actually all AI agreed to was that it may be impossible for Hyperion to own all the code, Hyperion is now trying to claim they own none of it, and Hyperion also seems to have shared AI IP with contractors without the knowledge and permission of AI.

Quote:

During the negotiations of the "Arctic" contract, it should have been clear to AInc. the Friedens were not Hyperion employees, as the are explicitly mentioned as contractors. And OS4 was taken hostage by the developers, as Hyperion owned nothing.

It may have been clear at the Arctic contract, but that was over 2 years after the original contract, and over a year after Amiga Inc bought OS4 back from Hyperion.

Quote:

Another point that is not clear to me is about the $25000. I couldn't find full proof in both documents that AInc has actually paid in full. The factor that makes this unclear is also the fact that said payment will first be applied against the balance of any outstanding invoices. We don't know what the balance between AInc and Hyperion was.

Given the structure of the contract, there is no way for AI to owe Hyperion money. We know from the Exhibit F, the in April of 2003, Hyperion and Itec agreed to the sale for 25K according to the agreement. We know from the Lawyers remarks that in actuality AI has now paid over 40K for the OS and still doesnt have to code.

Quote:

All of a sudden I see an email where AInc. claims they can buy OS4 for $22500. No confirmation from the Hyperion side.

Again Exhibit F says 25K was agreed upon, we have the wiretransfers for most of it, we the lawyers remarks (and Bills remarks) that they not only paid the 25K, but also over 7K additional (which was probably for some 3rd party code they never recieved) and then the November letter was followed by a wire transfer of 8,850 which is the further amount Benji says was due. (Again probably for some additional code).

Quote:

I only see hard proof for a total payment of $22250. Claiming someone said he has paid $2500 has no value in court (I would think so). Anyone with any updates to my findings?

AI only has to prove that they paid the other money if Benji and them want to dispute it, they havent yet, and they wont because its pretty easy to prove that they received the money, do you honestly think that the lawyer would write a letter to Hyperions lawyers claiming they had now paid over 40K when they had only paid 22.5K?
-Tig

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@Tigger

Quote:

I dont see a whole lot, I just see alot of signed contracts and backing documentation.

I thought one contract wasn't signed (at least in the exhibits)?
I get the impression that McEwen is rather sloppy. Not a good thing when you go to court.

Quote:

Actually all AI agreed to was that it may be impossible for Hyperion to own all the code, Hyperion is now trying to claim they own none of it, and Hyperion also seems to have shared AI IP with contractors without the knowledge and permission of AI.

You could argue that the new code, even based on AI IP, is still "owned" by the new author and only has to be released as executable code. Disclosing AI IP is another thing.
Was sharing the AI IP with contractors really a breach of contract? It seems AI wasn't "concerned" with the fact H&P was mentioned in the same section as Exec. Or did I miss something?

Quote:

Given the structure of the contract, there is no way for AI to owe Hyperion money.

Perhaps not from this contract alone. Do you have any proof this was the only business between AI and Hyperion?
And judging from the fact that AI so "easily" agreed to pay more, I would say is an indication AI owned Hyperion money, apart from the buy-back. But I have to admit that is speculation from my side. But the news item from Hyperion mentions the party pack and voucher scheme. But I have to admit the news item isn't "hard proof" either.

Where are the records of this balance? Any company with proper book-keeping should be able to present this to a judge. On the other hand, we are talking about AI...

Quote:

AI only has to prove that they paid the other money if Benji and them want to dispute it, they havent yet, and they wont because its pretty easy to prove that they received the money, do you honestly think that the lawyer would write a letter to Hyperions lawyers claiming they had now paid over 40K when they had only paid 22.5K?

I would say that any company with proper book-keeping should be able to provide the proof this money was paid. Just some people claiming things means nothing to me and actually it makes AI look very weak on that point. Unless they do come up with the proof.

Also note that we haven't seen the details of the balance between AI and Hyperion.

And we haven't seen Hyperion present their case to the judge yet.

I'm not saying either party is right, I am just trying to get to the bottom of this and also highlight where a judge might rule against AI.

The implications of such a ruling is another thing.

Or do you know more that you haven't shared with us, or that I missed in this thread? I have to admit this thread grew so fast I haven't read half of it.

Last edited by jiyong on 02-May-2007 at 06:33 AM.

All in all, AInc. has some good points, but both McEwen and Moss declarations are full of inaccuracies, half-truths, etc.: they did know OS4 was late and not due to Hyperion's fault -just look at Fleecy Q&A-: required 3.9 functionality ported to PPC without access to 3.9 sources, despite what's said in the contract, no Haage&Partner emulator... On the hardware side, the first SE boards were quite problematic to say the least (Articia, DMA, audio, USB), so how could you release a working OS that way?

I'm not a lawyer and I don't know who's going to win this mess, but rest assured its US the ones that will lose.

Saluditos,

Ferrán.

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@Ferry

Quote:

I'm not a lawyer and I don't know who's going to win this mess, but rest assured its US the ones that will lose.

Sadly, no question about that..

@asymetrix

Quote:

Where was Amiga Inc when Samantha / Troika was being announced ?

Uhm... I heard about Samantha from Bill McEwen's speech/presentation/whatever from some Amiga show last fall 2006...

Quote:

Definately a problem if the 'mystery device' is a much more powerful system than what Amiga Inc has to offer.

I thought the "mystery device" was some time ago said to be the IBM Arctic PDA reference design mentioned in the Amiga court filings...

Quote:

McEwen Declaration : C.17.2a clearly states exclusive licence to market and distribute OS 4.0 on standalone PowerPC based hardware.

While I'm not a lawyer, the old OEM contract does seem to allow things other than the Escena AmigaOne. From Article II, 2.01 (my italics/bold):
Quote:

2.01 Appointment. Amiga hereby grants the Amiga One Partners a right and license to use and modify the Software and an exclusive right and license to market and distribute OS 4 as a standalone version for the Target Hardware and as an OEM version shipped with the Amiga One...

Now, from Article I, Definitions:
Quote:

"Target-Hardware" means the PPC based hardware developed and marketed for the Amiga platform including but not limited to the hardware developed and marketed by Phase 5, DCE and the AmigaOne hardware developed by Escena under contract with the AmigaOne Partners.

It would seem that Hyperion did have the right to port OS4 to other PPC hardware in a standalone version of OS4. There's some stuff that makes using the Amiga name for the standalone version (ie. not in conjunction to the AmigaOne product) a little quirky, I'm not sure why "Hyperion shall develop Amiga OS 4.0 for the Target-Hardware..." if there was no intention of marketing and distributing "Amiga OS 4.0" to the hardware defined by the term "Target-Hardware". I don't understand why Hyperion was required to develop OS4 for things other than the Escena AmigaOne, allowed to market and distribute OS4 for things other than the Escena AmigaOne, but possibly not allowed to use the Amiga trademarks with OS4 for anything other than the Escena AmigaOne. I'm curious what was intended when they chose to write it that way. It seems odd.

While a Mac iBook might be excluded from the definition of Target-Hardware, since it is not developed or marketed for the Amiga platform, the SAM440 might be covered by that Target-Hardware definition. While they may intend to also sell it to other markets, what was the intention of creating the thing? If not to provide something for Amiga users to run OS4 on, would ACube have created it at all as a Linux-only thing? Or without intention of running OS4 on it would SAM440 have never existed? It seems there may be a big enough hole in this language that new PPC hardware developed and marketed with the primary intent of providing hardware to Amiga fans to run AmigaOS on, all other intentions being secondary, could very well be legally included as a Target-Hardware item.

Quote:

Now technically the PS3s Cell processor is also PPC. So we do have a problem.

Our hypothetical loophole probably does not work for OS4 on PS3. Why? It wasn't developed or marketed "for the Amiga platform". It was developed and marketed for other things, same as mac hardware. But Samantha, Troika, ACK, those things might fit the "for the Amiga platform" bit. I'm not sure if Pegasos or Efika could fit. They might try, but one could argue against their primary intent being "for the Amiga platform" a little more than one could argue that against SAM, Troika or ACK.

Last edited by billt on 02-May-2007 at 05:49 PM.

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Quote:

jiyong wrote: @Tigger Quote: I dont see a whole lot, I just see alot of signed contracts and backing documentation. I thought one contract wasn't signed (at least in the exhibits)? I get the impression that McEwen is rather sloppy. Not a good thing when you go to court.

The 2001 contract is signed in Fleecy's deposition, the 2003 sale of the OS is signed in McEwens. In reality, everything else is gravy, good thick gravy, but gravy none the less.

Quote:

You could argue that the new code, even based on AI IP, is still "owned" by the new author and only has to be released as executable code.

Actually no you can't. AI has the right to any code that uses there IP. In fact the whole reason for contractor comment was so things already written could be included as part of the OS (P96 for instance).

Quote:

Disclosing AI IP is another thing. Was sharing the AI IP with contractors really a breach of contract? It seems AI wasn't "concerned" with the fact H&P was mentioned in the same section as Exec. Or did I miss something?

The whole section about confidentiality. Exec is an important part of the Amiga OS, giving its source to a contractor (as they now claim the Friedens are) is a huge violation of the confidentiality agreement, and assigning a contractor to do Exec without letting AI know is a pretty big issue as well.

Quote:

Perhaps not from this contract alone. Do you have any proof this was the only business between AI and Hyperion?

Benji has talked on and on about THE contract, eventually THE contract was leaked and we know see from the court records that the only difference between the leaked contract and the one in the court records is the signatures. We have the sales agreement from April of 2003, agrees to 25K for the OS, AI ended up paying more then that, if there were other monies owed (or another contract) this contract should have pointed to those instead of pointing to the 25k as called out in the 2001 contract.

Quote:

And judging from the fact that AI so "easily" agreed to pay more, I would say is an indication AI owned Hyperion money, apart from the buy-back. But I have to admit that is speculation from my side. But the news item from Hyperion mentions the party pack and voucher scheme. But I have to admit the news item isn't "hard proof" either.

AI agreed to pay 7K more to get some 3rd party code, that AI believes should have been included, or code for an additional feature that AI believes should have been included. Since the 7K and 8K is all about the buyback, implying its for some other mysterious debt is silly. In addition, Hyperion is just trying to paint AI as a bad guy with the Party Pack and Voucher schemes. They werent involved in either of the deals, and frankly since AI bought back the OS in 2003, they shouldnt have been involved in the OS when most wanted to use the coupons to get it back.

Quote:

Where are the records of this balance? Any company with proper book-keeping should be able to present this to a judge. On the other hand, we are talking about AI...

If Hyperions case is based on hoping AI cant prove they sent the 2.5K, they are in big trouble, the banks records will show it happened, the wire transfer company will show it happened. The lawyer wired the additional 8K as part of the letter cancelling the license.


Quote:

I would say that any company with proper book-keeping should be able to provide the proof this money was paid. Just some people claiming things means nothing to me and actually it makes AI look very weak on that point. Unless they do come up with the proof. Also note that we haven't seen the details of the balance between AI and Hyperion.

They can provide the proof, noone has asked for it, if they do they will, if they dont dispute it, its a non-issue, and I'm sorry but it really is a non-issue. You honestly think that a multi-millionaire paid 22,500 for the OS, and then lied that they paid 2,500 the next month, and is now paying a lawyer 100s of dollars an hour to argue that in federal court? We actually did see the balance unless you think the lawyer was lying in his letter to Benji, he says in the letter from November 2006, that Benji claims that AI owes them $8,850, an amount they remitted with the letter. They disagree that they owe that amount, but they are paying it in an effort to end the situation.

Quote:

And we haven't seen Hyperion present their case to the judge yet. I'm not saying either party is right, I am just trying to get to the bottom of this and also highlight where a judge might rule against AI.

If Hyperions case is what there comments on there website are, they might as well make a DVD with the source and send it to AI, shut down there website and hide behind the bed. Because there is no way once there license has been revoked, that any judge will agree that they still get royalties (especially royalities that they arent contractually obligated to get).

Quote:

The implications of such a ruling is another thing. Or do you know more that you haven't shared with us, or that I missed in this thread? I have to admit this thread grew so fast I haven't read half of it.

The implication is that Hyperion website is going down, AI will get OS4 source and executables (possibly near fatally crippled) and AI and ACK will start shipping units at some point in the future.
-Tig

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@all
Please read my original theory, followed-up by my revised theory, of what happend to Amiga Inc & how they ended-up taking Hyperion to court. It is based on a lot of known facts.

@Tomas who wrote Quote:

Quote: Amiga Inc do *not* have a lot of money IMHO, they just create the *appearance* of having a lot of money, for the purposes of the lawsuit. What about the Ken centre?

You don't really believe they've paid anything yet, especially for a Centre that isn't even built yet?!? All they've announced doing at this point is *agreeing* to pay the cash, once it's built.

@takemehomegrandma who said Quote:

the big question is WHY Hyperion went ahead with their mammuth development plans *without* an updated contract as a ground for it? THAT has doubtless caused Hyperion lots of problems...

Because I believe that AI & Hyperion were one big happy family, until 2003 when all that Amiga Inc owned was bought by Itec, then KMOS, before finally being renamed to Amiga Inc (#2) in 2005.

So I believe that there were verbal agreements between AI, Hyperion & Eyetech that, for example, took account of the failure of Escena to produce any hardware. Now Bill McEwan is going to beat Hyperion with a big stick (the original contract). Any other interpretation requires that actions were taken in bad faith sooner than that, and that violates my principle of "Don't assume bad intentions when incompetence is also an explanation."

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