I'd like to know what are the fundamental counter arguments of Hyperion's Defense against AInc.'s claims. Like many, I don't have time for careful analysis of the court documents. So, a bottom lne: "this is why Hyperion will win" is the discussion I'd like to see.

To me, Ainc's case seems fairly clear and fairly solid, as the contract was pretty explicit. But, it seems to me that much of the arguments used by Hyperion supporters boils down to:

"It just ain't fair, the way Hyperion is being treated. "

"AInc sucks!  They are crooks with a history of bad business."

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@jingof

oh no... not another tigger fested thread.

Why AmigaInc will loose? , god knows ..its not exactly like AmigaInc has been trying to do anything for AmigaOS the last 7 years if not even longer, they even said that they couldnt be ####d about it either (more or less) and that theyr focus was on PDA's and such.

Why all users will loose no matter what the outcome of the lawsuit is?`, we have seen too many of thoose "tigger'd" posts to last us a lifetime.

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@Toaks

He`s pretty sharp but I think he`s biased.

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@Toaks

Quote:

Toaks wrote: oh no... not another tigger fested thread.

Well, if Hyperion's side has been under-represented, here's your chance.

Seriously, honest question. The whole idea is get out the (legally relavant) Hyperion core arguments. So, why should you object?

Quote:

Why AmigaInc will loose? , god knows ..its not exactly like AmigaInc has been trying to do anything for AmigaOS the last 7 years if not even longer, they even said that they couldnt be ####d about it either (more or less) and that theyr focus was on PDA's and such. Why all users will loose no matter what the outcome of the lawsuit is?`, we have seen too many of thoose "tigger'd" posts to last us a lifetime.

I know, it just ain't fair is it?

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@jingof

Actually, if you bothered to read some of the other threads, you'll find that the arguements given by Hyperion supporters are more solid than just "it's not fair".

My understanding of Hyperion's position is:
- Amiga Inc. didn't uphold their part of the deal by failing to provide the required source-code.
- Amiga Inc. didn't pay them the full $25000 + all outstanding debts, so they therefore don't have the rights to the source-code.
- Amiga OS4 was completed according to the requirements in the contract in December 2004. Since Amiga Inc. didn't pay $25000 and haven't released a major new update of OS 4.x within 6 months of this completion, Amiga OS4 belongs to Hyperion
- Amiga Inc. Washington became insolvent, and hence, Amiga OS4 belongs to them as specified by the contract.
- The $25000 is for a buy-in, not a buy-back. Therefore Hyperion is still allowed to market and sell Amiga OS4 for "target PowerPC hardware"
- Amiga Inc.'s allegations that they have violated the license by marketing Amiga OS4 beyond the terms of the license agreement are false and all evidence provided are meaningless. Hyperion has told all customers that they must obtain a license from Amiga Inc. first
- Hyperion can still market Amiga OS4 because Amiga Inc. had no grounds to cancel the license in December 2006

You may or may not believe all these arguements. Whether they stand or not is for the courts to decide. Some arguements on both sides are pushing the envelope a bit, and, IMHO, are not truthful (i.e., both sides are trying to rewrite history a bit to support their case.

Hans

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@jingof

Hmmm...my take on it is this...

#1 The evidence AInc provided to the courts was either flawed or invalid. This evidence was in the form of contracts allegedly made between Ainc and Hyperion where the one provided by Fleecy was missing not only the full page of monetary payment to be made by Ainc to Hyperion for work based on hours rendered, but also was not signed nor signatured. The contract present by McEwen (the Arctic agreement) was also not signed nor signatured and (per Hyperion's followup testimony) was never signed by the Friedens and perhaps never even seen by them.
So, this makes Ainc look quit like the deceivers to the courts.

Note - the actual valid contract between Ainc and Hyperion, with everyones signatures and initials, as presented by Hyperion, shows a computation for money Ainc owed to Hyperion for developing OS4...this is where Hyperion gets the $1.5 million owed to them by Ainc for work done on OS4 number.

#2 The valid contract shows that Hyperion would try their best to complete OS4 by March 2002. This means that the Hyperion only has to prove that they tried their best, not that they completed Os4 by March 2002. Some people cannot accept what this actually says (even when they quote it), but because of the wording of this due date clause, it is essentially invalid as any form of leverage from Ainc. This is further substantiated by the fact that Bill McEwen has noted in IRC logs an akcnowledgement and acceptance of the further delays required to complete OS4. Ainc never had any problem with the timeline of Os4 until they sued Hyperion.

#3 The valid contract shows that Hyperion owns full rights to the Amiga OS and source if Ainc does not release an update to the classic AmigaOS within 6 months of Hyperion completing OS4. The contract is also explicit in indicating the terms of "completion". Hyperion has shown that they completed OS4 per the contract terms in December 2004 (OS4 release 2) and thus own the rights to OS4.

#4 Ainc claims to have paid a buyback purchase of OS4, defined to be $25,000 paid to Hyperion over serveral payments. Unfortunately for them, they cannot produce receipts for these payments that show such a thing, and Hyperion claims that some of these payments were for work rendered as per the hourly wage agreement (see item #1). AIncs best claim is that they paid a moajority of the $25000, which does not constitute a buyback.

#5 The contract states that if Ainc goes bankrupt, Hyperion retains full rights to OS4. Hyperion claims that Ainc was insolvent (by their own admission) in 2004 and so Hyperion again should own all rights to OS4.

#6 Ainc claims that Hyperion is trying to market OS4 outside the agreed upon guidelines from the contract. (Note - the contract indicates that AmigaOne hardware includes but is not limited to the boards developed by Escena and by AmigaOne partners.) Looking at the contract, there seems to be nothing that says that AmigaOne hardware has to be licensed by Ainc. This would mean that the SAM440 for example could be considered valid AmigaOne hardware....and in spite of this Hyperion has NOT released OS4 on any machine without trying to get the approval of Ainc...who have refused everyone except Ack to build AmigaOne hardware. To sum it up, there is no evidence that Hyperion has done anything wrong per the contract with respect to marketing OS4.

Tigger will certainly tear this apart, since he is a die-hard AInc supporter (or perhaps a die-hard Hyperion dissenter). But so far all of his claims have been invalid, if you examine the other posts he spends many many hours filling. A couple of them include 1 - the original agreement between Hyperion and Ainc was not valid 2 - only the Artic agreement was valid 3- the contract wording that says Hyperion will do their best to complete OS4 by March 2002 does NOT mean do their best but in fact means they agreed to have it completed by March 2002 4 - the OS4 developers are code monkeys etc etc.

I've read all the information so far and it looks to me like AInc only stand a chance if they can deceive the judge well enough. They seem to have tried everything they could along these lines so far.....

Scott

Last edited by scabit on 06-Jun-2007 at 12:03 AM.

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@Hans

Quote:

Hans wrote: if you bothered to read some of the other threads...

Yes, one of those threads went over 1100 messages. So full of points and counterpoints, that the hyperion perspective was scattered far and wide. No, didn't bother with that.

I'm sure I'm not the only one that would like the "cliff notes" out of that thread (and others)...

Quote:

My understanding of Hyperion's position is ....

Thanks for your synopsis

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@Frags

There's a difference between bias and opinion. Opinion changes easily to accomodate new information. Bias seeks to only justify its position and dismisses all that contradicts it.

Mine is an opinion and one that could be easily changed with new information and convincing arguments that illustrate the Hyperion defense.

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@scabit

Thanks very much for the detailed response. Haven't gone through it all yet, but this is exactly what I was looking for.

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@Hans, scabit

Those two posts sum up the published Hyperion position very well. We will have to wait to see which arguments prevail in court.

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@jingof

You have a point mate.
I have thread through countless threads that have gone on forever.
You do start to loose the plot.
Especially as the arguments and counter arguements can be some posts apart.
Throw into the mix the rabid haters of one party or another and the ensuing verbal brawl, it's hard to get the facts together straight in your head.
The points above makes things clearer and do seem to suggest that Hyperion have a good case.

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@jingof

I meant Tigger, he seems to hate Hyperion for whatever reason.

_________________
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- insert profound text here -

Quote:

scabit wrote: @jingof Tigger will certainly tear this apart, since he is a die-hard AInc supporter (or perhaps a die-hard Hyperion dissenter). But so far all of his claims have been invalid, if you examine the other posts he spends many many hours filling. A couple of them include 1 - the original agreement between Hyperion and Ainc was not valid 2 - only the Artic agreement was valid 3- the contract wording that says Hyperion will do their best to complete OS4 by March 2002 does NOT mean do their best but in fact means they agreed to have it completed by March 2002 4 - the OS4 developers are code monkeys etc etc.

Gee Scott, making stuff up again. Where exactly did I say #1 Oh yeah I didnt, where did I say #2 Oh yeah didnt say that, #3 Oh yeah didn say that and as for #4 all I said is that a bunch of long term developers at the Gateway 2000 show called the Friedens code monkeys, and we did that, so who exactly is writing lies again?
-Tig

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Quote:

Hans wrote: @jingof Actually, if you bothered to read some of the other threads, you'll find that the arguements given by Hyperion supporters are more solid than just "it's not fair". My understanding of Hyperion's position is: - Amiga Inc. didn't uphold their part of the deal by failing to provide the required source-code.

Its a valid objection until April 23, 2003 when they sold the OS and didnt make it an issue then, after that it becomes a non issue.

Quote:

- Amiga Inc. didn't pay them the full $25000 + all outstanding debts, so they therefore don't have the rights to the source-code.

Actually Hyperions official point from the hearing is that AI paid them only $24,750 (which is what we have transfer receipts for) but they mistakingly wrote receipts for $25K and sent them to Itec and McEwen. All that will buy them is a check for $250 and maybe not even that.

Quote:

- Amiga OS4 was completed according to the requirements in the contract in December 2004. Since Amiga Inc. didn't pay $25000 and haven't released a major new update of OS 4.x within 6 months of this completion, Amiga OS4 belongs to Hyperion

First of all the OS wasnt completed in December of 2004, there have been way too many posts to the contrary in the time since then. Hyperion hasnt paid the programmers the money owed to them within 6 months of completion of the code because they have said its not done. As we say before Hyperion invoiced for 25K (they may have been shorted 1%) so they have been paid, AI may have to write a check for $250. AI couldnt release an update because Hyperion didnt release the code to them, thats Hyperions weakest arguement of the lot, and they all are pretty weak.

Quote:

- Amiga Inc. Washington became insolvent, and hence, Amiga OS4 belongs to them as specified by the contract.

Hyperion agreed to the transfer to Itec on April 23, 2003, they again agreed to the transfer to KMOS when they signed the Arctic agreement. Hyperion took money first from Itec and then from KMOS treating them as legal successors of AI, Washington, no court has ever ruled that AI Washington was insolvent, much less before April 23, 2003.

Quote:

- The $25000 is for a buy-in, not a buy-back. Therefore Hyperion is still allowed to market and sell Amiga OS4 for "target PowerPC hardware"

I'm sorry its not a buy-in, this is not the language of a buy in.

"At any time prior to the completion of OS 4.0 and no later then six (6) months thereafter and provided Amiga makes the payment pursuant to article 3.01 hereof, Hyperion shall transfer all Source Code, interest and title in OS 4.0 to Amiga to the extent it can do so under the agreements concluded with third party contractors"

Hyperion is transfering interest and title in OS 4.0 to Amiga, thats not the buy in Hyperion is trying to preach.

Quote:

- Amiga Inc.'s allegations that they have violated the license by marketing Amiga OS4 beyond the terms of the license agreement are false and all evidence provided are meaningless. Hyperion has told all customers that they must obtain a license from Amiga Inc. first

Hyperion has marketed the OS as an embedded system, I've argued with the Friedens on this very board about how poorly OS 4 is prepared for the embedded world.

Quote:

- Hyperion can still market Amiga OS4 because Amiga Inc. had no grounds to cancel the license in December 2006

Not delivering something you bought over 4 years before is pretty good grounds for cancellation of the license, the other points aren't bad either.
-Tig

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@Tigger

What are you doing? This thread isn't about whether Amiga Inc. or Hyperion is right or wrong. Jingof asked what Hyperion's arguments were and Scabit and I summarized them. That's what they are regardless of what you think of them.

Hans

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@Tigger
So, I'm mostly very intentionally staying out of all of the interpretations, although I've read most of the docs, but...

Quote:

First of all the OS wasnt completed in December of 2004, there have been way too many posts to the contrary in the time since then. Hyperion hasnt paid the programmers the money owed to them within 6 months of completion of the code because they have said its not done. As we say before Hyperion invoiced for 25K (they may have been shorted 1%) so they have been paid, AI may have to write a check for $250. AI couldnt release an update because Hyperion didnt release the code to them, thats Hyperions weakest arguement of the lot, and they all are pretty weak.

Is it not possible the definition of 'complete' has two different meanings here, as defined by multiple contracts?

As in, 'complete' in H/AI contract = completed per specified requirements in contract, period.

Hyperion and developers, 'complete' referring to OS4 final release, or for some hardware? (I didn't see much of individual Hyperion contractor agreements in all the paperwork..)

?

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@wegster

I wonder in Washington Court what "complete" is defined as, as well..

You make a very good point about complete. A lot of how this is settled will depend on contract law I suspect. I wonder if both parties are already drawing up grounds for an appeal..

@Hans

Quote:

Hans wrote: @Tigger What are you doing? This thread isn't about whether Amiga Inc. or Hyperion is right or wrong. Jingof asked what Hyperion's arguments were and Scabit and I summarized them. That's what they are regardless of what you think of them. Hans

Tigger has found a loophole, that allows him to put his post count through the roof without getting called a spammer

@Hans

Quote:

Hans wrote: @Tigger What are you doing? This thread isn't about whether Amiga Inc. or Hyperion is right or wrong. Jingof asked what Hyperion's arguments were and Scabit and I summarized them. That's what they are regardless of what you think of them. Hans

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@Hans

What are you doing? This thread isn't about whether Amiga Inc. or Hyperion is right or wrong. Jingof asked what Hyperion's arguments were and Scabit and I summarized them. That's what they are regardless of what you think of them.

No offence ment to any, but Toaks and Scabits posts are a clear and open ticket for Tigger to make a reply, especially the one from Scabit. I really see no reason to blame Tigger here for being off topic and not blame them as well.

So let's make that a little warning to all of you, don't make little snipe remarks, especially to people who haven't posted in a thread yet and expect no reaction.

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