Predictions for the future:

(1) Judge reserves Judgement on Injuction allows suit to procede if Amiga Inc dont withdraw it.He will only allow the Injunction if Amiga Inc win and Hyperion appeal.

(2) Amiga Inc have to decide if they dare face a jury which will hear about
unpaid Amiga Inc Judgements to Bolton Peck and others as Amiga Inc will be painted as a company that tries to screw employees and partners (Bolton Peck,Garry Hare and Hyperion) plus the "Kouri factor".

Anybody who does not think that any jury will be influenced by these factors better go out into the real world for a few minutes

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@umisef

Quote:

umisef wrote: @fairlanefastback Quote: So you agree with the word Amiga wants to use to sway the judge Which just happens to also be the term used by Ben Hermans himself in 2002, and 2003. You know, the very same Ben Hermans who "wrote the contract, all 17 pages of it" and signed it. Only when *gasp* Amiga Inc actually managed not only to not go broke (damn!), but also to pony up the agreed upon amount, did he stop using that term. "Buy-in", however, is a wholly new 2007 creation.... So, on the one hand we have the very people from *both* involved companies use one term at or near the time of signing; On the other hand, we have a term made up more than half a decade after the signing of the contract, by a very interested party whose very existence depends on the buy-back not having been executed. I know which one I will believe was the original intention. Even if it weren't for the rather unambiguous contract text.

Hello umisef. First. Lets speak to whats binding, whats binding is the contract. Not necessarily the pure intention of it, but whats in it, as interpreted at this point by a judge. That intention is up for debate besides as well.

That said, lets analyze what you link. The first one Ben puts in quotations the term. He bothers to do so twice in fact. He does this because he is replying to someone who spoke with that language. There is a reason why legal language is in a contract and why we don't speak and write in legal language for all other purposes in life, especially on an internet forum posting site. And even so, he does not use it directly as his term, hence the quotations.

The second, while you are nice enough to link it, lets really read it. Again, bearing in mind that the legal agreement between the parties is whats binding. But that said, once again its not as simple as you seem to imply. He says:

Quote:

Our contract with Amiga does indeed contain an IP buy-back clause, which means that Amiga can acquire the work done by us on OS 4.

An "IP" one is what he says. Would you have him quote at every turn, anywhere, with anyone, entire phrases from relevant contract sections, especially, *to the public*? He even says what he means by this *in this context*, that it means Amiga can acquire the work done by Hyperion on OS 4. It doesn't mean a giving up of a license or rights, or that the 3rd party contractors sources are given over. Thats why there is a contract in the first place.

So search far and wide if you like, the mere usuage of the language, at one moment in time, outside of the binding agreements is not necessarily some smoking gun. Its worth all due consideration, there is no denying that, but it weighs much less than the contract and these two examples don't seem terribly contradictory besides.

Last edited by fairlanefastback on 08-Jun-2007 at 02:40 AM.
Last edited by fairlanefastback on 08-Jun-2007 at 02:36 AM.
Last edited by fairlanefastback on 08-Jun-2007 at 02:35 AM.

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@Spectre660

Quote:

Spectre660 wrote: Predictions for the future: (1) Judge reserves Judgement on Injuction allows suit to procede if Amiga Inc dont withdraw it.He will only allow the Injunction if Amiga Inc win and Hyperion appeal. (2) Amiga Inc have to decide if they dare face a jury which will hear about unpaid Amiga Inc Judgements to Bolton Peck and others as Amiga Inc will be painted as a company that tries to screw employees and partners (Bolton Peck,Garry Hare and Hyperion) plus the "Kouri factor". Anybody who does not think that any jury will be influenced by these factors better go out into the real world for a few minutes

1) I believe the injunction will be granted

2) First of all Peck and Matt have an issue with AI, Washington though I believe that by the time the trial comes up, all of that will be cured, and Garry has been paid, and the Kouri factor wont even show up. In addition, AI sponser of the Amiga Center of Kent vs Hyperion in a jury trial isnt likely to be good for Hyperion, there are liable to be some Thunderbirds fans on the jury.
-Tig

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@Tigger

Judge will not grant the Injunction because no product is being shipped at this point.
he has advised that they should try to settle out of court.


Ia am also glad that you realize that a Jury can be influnced by other issues.and that it cuts both ways.

Last edited by Spectre660 on 08-Jun-2007 at 05:25 PM.

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Quote:

Spectre660 wrote: @Tigger Judge will not grant the Injunction because no product is being shipped at this point. he has advised that they should try to settle out of court.

If you read the document, he says he is advising them AS HE DOES EVERYONE THAT COMES TO HIS COURT that they should try to settle. I realize Ben and others have pitched that this has special significance, but according to the judge, he tells everyone they should settle, so we should take the judge at his word. The injunction is to prevent them from selling anything, according to your version, it cant effect anyone because nothing is being sold. I dont know they will get everything they are asking for but I am pretty sure OS 4.0 is not going to get sold by anyone until this is over.

Quote:

Ia am also glad that you realize that a Jury can be influnced by other issues.and that it cuts both ways.

A homegrown boy and the company he is moving locally who sponsers the local hockey team is suing a big mean company from somewhere in Europe, I'm sorry if AI has half a case (and they have alot more then that), they would win a jury trial here, the jury is going to wonder why Hyperion kept taking money and didnt provide anything. Thats a pretty good question. As I said long ago, if Hyperion had shipped some code to AI at some point, this would be much less an open and shut case, but there lawyer admits they didnt and thats the issue.
-Tig

Last edited by Tigger on 08-Jun-2007 at 05:46 PM.

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@Spectre660

Quote:

Spectre660 wrote: Predictions for the future: (1) Judge reserves Judgement on Injuction allows suit to procede if Amiga Inc dont withdraw it.He will only allow the Injunction if Amiga Inc win and Hyperion appeal. (2) Amiga Inc have to decide if they dare face a jury which will hear about unpaid Amiga Inc Judgements to Bolton Peck and others as Amiga Inc will be painted as a company that tries to screw employees and partners (Bolton Peck,Garry Hare and Hyperion) plus the "Kouri factor". Anybody who does not think that any jury will be influenced by these factors better go out into the real world for a few minutes

That's if the Judge feels its part of or relevant to THIS case.

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@wolfe

The History of Amiga WAshington has to be part of the case.
They are the company that signed the Agreement.

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@Tigger

Quote:

A homegrown boy and the company he is moving locally who sponsers the local hockey team is suing a big mean company from somewhere in Europe, I'm sorry if AI has half a case (and they have alot more then that), they would win a jury trial here, the jury is going to wonder why Hyperion kept taking money and didnt provide anything. Thats a pretty good question. As I said long ago, if Hyperion had shipped some code to AI at some point, this would be much less an open and shut case, but there lawyer admits the

That is why the Declaration from Everton Caron is clear to spell out his nationality as a US citizen. That is also why the name of Penti Kouri, an infamous foreign investor is mentioned.

The Hyperion lawyer knows how to play the nationality card as well.
I also think that he is involved in local politics as well.

Last edited by Spectre660 on 08-Jun-2007 at 10:36 PM.
Last edited by Spectre660 on 08-Jun-2007 at 10:32 PM.

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@Tigger

Quote:

A homegrown boy and the company he is moving locally who sponsers the local hockey team is suing a big mean company from somewhere in Europe, I'm sorry if AI has half a case (and they have alot more then that), they would win a jury trial here, the jury is going to wonder why Hyperion kept taking money and didnt provide anything.

Hyperion is "big"?? What are you talking about?

And Amiga is owned by a Finn. And its biggest investment on paper is from a Polish software company, where its shown in a public report that it was a multi-million dollar investment in 2005. And do you want the Kent Arena $10 million newspaper articles mentioned? Not much of the 'ol Red White and Blue feel here. If Amiga lawyers try to paint Hyperion as "big" compared to Amiga that would open a nasty door for them to have to deal with.

Meanwhile Everet is a U.S. citizen running a small firm with none of that.

Hyperion's lawyer mops up that perception you throw out in two secs flat.


edit: noticed I wrote "compared to Hyperion" when I meant to write "compared to Amiga" - corrected above.

Last edited by fairlanefastback on 09-Jun-2007 at 06:58 AM.
Last edited by fairlanefastback on 09-Jun-2007 at 06:58 AM.
Last edited by fairlanefastback on 08-Jun-2007 at 10:41 PM.

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@fairlanefastback

I am sorry but what umisef posted sounds resonable. What you are posting sounds like grasping at straws. It is good to have hope but....
Ben always wanted us to know his legal background. If what he said is not what he meant I think he would have clarified himself especially in later posrs. The only time the talk of a "buy out" being changed to "buy in" is after the cancellation of the license. Same with the revision of when OS4 was finished. The revisionism looks fishy to me.
I can't recall any posts that claimed with authority, ExecSG was based on original sources, but there were a lot who thought it was during the "name debate". I don't recall anyone telling us any different either, and there were a lot of posts about it. What was the term BAF? I guess that will have to change now.

Posted by Ben Hermans 2002:
One major difference: Amiga Inc. has an option to buy the OS 4 intellectual property at a fixed fee.

Hence they can retake control of the OS (source-code and all) whenever they feel like it.

If they fail to do something with it within a certain amount of time, our right to develop the OS further is revived.
____________________________________________________________________
Of course he is a "lawyer" and does not say what he means.

Last edited by stew on 08-Jun-2007 at 11:31 PM.

@Tigger

Quote:

Tigger wrote: Quote: Spectre660 wrote: @Tigger [quote] Ia am also glad that you realize that a Jury can be influnced by other issues.and that it cuts both ways. A homegrown boy and the company he is moving locally who sponsers the local hockey team is suing a big mean company from somewhere in Europe, I'm sorry if AI has half a case (and they have alot more then that), they would win a jury trial here, the jury is going to wonder why Hyperion kept taking money and didnt provide anything. Thats a pretty good question. As I said long ago, if Hyperion had shipped some code to AI at some point, this would be much less an open and shut case, but there lawyer admits they didnt and thats the issue. -Tig

I hope you are both wrong. I hope the case is settled on the merits and legality of the evidence. I hate to think it would be swung by politics, racism, money, or size ect..
I guess I am idealistic but I would like to see the winning party be in the right no matter who is the victor.

@stew

http://www.kinsellaw.com/pages/333665/index.htm

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@stew

Quote:

stew wrote: @fairlanefastback I am sorry but what umisef posted sounds resonable. What you are posting sounds like grasping at straws. It is good to have hope but.... Ben always wanted us to know his legal background. If what he said is not what he meant I think he would have clarified himself especially in later posrs. The only time the talk of a "buy out" being changed to "buy in" is after the cancellation of the license. Same with the revision of when OS4 was finished. The revisionism looks fishy to me. I can't recall any posts that claimed with authority, ExecSG was based on original sources, but there were a lot who thought it was during the "name debate". I don't recall anyone telling us any different either, and there were a lot of posts about it. What was the term BAF? I guess that will have to change now. Posted by Ben Hermans 2002: One major difference: Amiga Inc. has an option to buy the OS 4 intellectual property at a fixed fee. Hence they can retake control of the OS (source-code and all) whenever they feel like it. If they fail to do something with it within a certain amount of time, our right to develop the OS further is revived. ____________________________________________________________________ Of course he is a "lawyer" and does not say what he means.

I don't see him saying he was giving up licensing rights. But beyond that whats in the contract is what matters and how the court ends up interpretting it. Posts to the public that seem to indicate otherwise are underhanded insofar as treatment to the community. Like I said I don't like a number of things either side has done.

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@fairlanefastback

Quote:

fairlanefastback wrote: @stew Quote: stew wrote: @fairlanefastback I am sorry but what umisef posted sounds resonable. What you are posting sounds like grasping at straws. It is good to have hope but.... Ben always wanted us to know his legal background. If what he said is not what he meant I think he would have clarified himself especially in later posrs. The only time the talk of a "buy out" being changed to "buy in" is after the cancellation of the license. Same with the revision of when OS4 was finished. The revisionism looks fishy to me. I can't recall any posts that claimed with authority, ExecSG was based on original sources, but there were a lot who thought it was during the "name debate". I don't recall anyone telling us any different either, and there were a lot of posts about it. What was the term BAF? I guess that will have to change now. Posted by Ben Hermans 2002: One major difference: Amiga Inc. has an option to buy the OS 4 intellectual property at a fixed fee. Hence they can retake control of the OS (source-code and all) whenever they feel like it. If they fail to do something with it within a certain amount of time, our right to develop the OS further is revived. ____________________________________________________________________ Of course he is a "lawyer" and does not say what he means. I don't see him saying he was giving up licensing rights. But beyond that whats in the contract is what matters and how the court ends up interpretting it. Posts to the public that seem to indicate otherwise are underhanded insofar as treatment to the community. Like I said I don't like a number of things either side has done.

You do see that Ben states that "AInc has an option to BUY the OS4 intellectual property at a fixed fee. " (Of course we know what that figure is now) "Hence they can take CONTROL of the OS" (here comes a biggie) "(source code and all WHENEVER they like it." Looks like Ben agrees more with umisef than his own defense. Try searching for some old Ben Hermans posts and you will see the revisionism. How about this one?

Quote:

"Besides, if you paid 5 million dollars for something, would you accept other people running off with your IP without putting up a fight?"

Of course he was talking about MorphOS at the time but seems strangly relevent today.

@Tigger

Quote:

Tigger wrote: Quote: fairlanefastback wrote: Also why would you seek out the 3.1 source in October when you don't yet have the right to make OS 4, and you expect Amiga will give you the sources for free when you hopefully will have a signed contract with them soon? I'm going to withdraw the comment about Evert, given the email between Olaf, Fleecy and Ben (Exhibit 19) it doesnt appear possible for them to have signed a contract with Olaf with an October date. Quote: The surrounding circumstances seem to support Evert's assertion that once Amiga admitted they had none of the sources that Hyperion then at a date after the agreement to work on Amiga OS 4 existed, for which they sate it was in December, worked out getting at least 3.1 sources from Olaf. Actually Amiga had the sources, the issue is that Olafs versions were better because he had cleaned them up. I personally know of at least 2 people who gave Fleecy entire contents of the OS source, so AI not having the source as some seem to claim is more then a little silly, its just Olafs source would save alot of time. But again, guys this entire didnt supply the code story isnt a real issue, once Hyperion sold the OS on April 23rd, without attaching costs associated with this, there are no good cost issues they can raise unless they have a contract with AI that says they will cover these costs. I dont think they have such a contract, otherwise we would have already seen it. -Tig

I am confused about the 3.1 and 3.9 source issues.
Ben Hermans states Nov 7 2001:
"Olaf Barthel and H&P did an outstanding job by cutting down the number of compilers required to compile the OS, cleaning up the OS 3.1 source-code and moving code from ASM to C. Whilst there still are some parts which are in ASM, this is a minority. Olaf also put the entire source-code in to a CVS repository which is a tremendous asset."

Did he not have access to these sources at this time?

@stew

Quote:

You do see that Ben states that "AInc has an option to BUY the OS4 intellectual property at a fixed fee. " (Of course we know what that figure is now) "Hence they can take CONTROL of the OS" (here comes a biggie) "(source code and all WHENEVER they like it." Looks like Ben agrees more with umisef than his own defense. Try searching for some old Ben Hermans posts and you will see the revisionism. How about this one?

Stew the contract is whats important. Its what was created between and affirmed by both parties. It exists with the knowledge of both relevant parties. It exists in time before any of these quotes to the public.

Quotes to the public came after the contract was in place. The public is not a party to the contract.

So your caps of "whenever" you want this to nullify contract terms?

Hyperion and Amiga appeared to posibly be in collusion to try to drag Bill Buck through court at one time. You aren't dealing with saints here, on other side. Amiga did not object that what he said did not match the contract language at the time so far as we know.




Edit: "other" should read "either"

Last edited by fairlanefastback on 09-Jun-2007 at 06:56 AM.

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@fairlanefastback

You have the patience of Job. Thank you for your pursuit of dispassionate
reason.

I understand the need for continuous postings based upon an emotional
stake in the outcome of these proceedings. I do not understand, however,
the motivation for your continuing refutations to such postings because
dispassion seems antithetical to such perseverance.

Truth for truth's sake? Intellectual exercise? Former member of a
debate team? A more subtle agenda than most? :o)

Thanks for the insights.

Nathan

@NathanH

Thanks Nathan. Much appreciated. :)

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@stew

It appears as if Hyperion knew that they would use Olaf's sources as Fleecy has claimed. But this and the cost to compensate him for this is not written into the Agreement.Hyperion can now claim that they had to enter into seperate agreements to get sources that Amiga Inc promised to deliver in the contract.

The claim is then true when taken in the context of the Agreement.

This is how things work in Law. Just think of the kind of claims that can made
when one party sues the other for divorce.Things are "true" but not "accurate" as they are twisted to make one side look bad.

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@fairlanefastback

I agree that the contract is what ultimately the judge base his descision on. The point is that the posts show what Ben's idea of what the terms of the contract meant.
It seems his idea went from "buy back" to "buy in". Umisef was saying that buy back better reflected the contract terms and I would have to say it better reflects Ben's idea of the contract terms also. Ofd course the point that he made these statements after the contract is important. That way it truly reflects the contract and is not just conjecture on Ben's part.

I agree that we are not dealing with saints on either side. Just look at my past stand on Tronman. While we can disagree on the issue of x86 vs ppc ect.. some things are just wrong. I certainly never supported the AInc shell game to avoid paying the man. Can the judge make both sides loose?