@all

In a court order filed 06/11/07, Amiga Incs motion for a preliminary injunction has been DENIED by the court.

Quote:

This matter is before the Court for consideration of a motion by plaintiff Amiga, Inc., (“Amiga”) for a preliminary injunction. Oral argument was heard on May 31, 2007, and the matter has been fully considered. For the reasons set forth below, the Court DENIES plaintiff’s motion.

@hatschi

I guess things will take quite a bit longer time then?

@takemehomegrandma

Main topics that were analysed by the court and reason to DENY the motion:

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

@hatschi

I'd say that Hyperion's lawyer earned his keep. Those three were part of Amiga Inc's main arguments, and the judge is clearly not convinced by them.

I think that it's in Amiga Inc's best interest now to meet with Hyperion and try to work something out. The quick victory they were hoping for is not going to happen, and as some have been speculating in other threads, Bill Buck could take advantage of evidence in this case to try to take OS4 again. I'm not sure Hyperion would care much either way these days, but it would be a serious blow to Amiga Inc.

Last edited by CodeSmith on 13-Jun-2007 at 08:30 AM.

@hatschi

Hm for me as layman these 3 points alone should lead to a decline of AIncs complaint and transfer all the things stated in the agreement to Hyperion and Eyetech as it should be after a insolvency giving them all the necessary rigts to release AOS4 and beyond on any hardware they want (ASAP if you ask me)!

@CodeSmith

Quote:

I think that it's in Amiga Inc's best interest now to meet with Hyperion and try to work something out.

Isn't that what Amiga Inc has been trying since 2003?

@takemehomegrandma

Not according to Hyperion

@CodeSmith

We will be in Brussels this Friday. Perhaps, we can meet with Hyperion. We missed them last time because they we working on the case.

@all

Check out the AmiWest 2002 video - that is also a good one.


Quote:

Cellphones, desktops, PDAs, tablets and handhelds... That's where we are going to see the OS.

R&B

_________________
genesi

@bbrv

I would say right now would be a very good time to try and get a relationship going between Genesi and Hyperion.

@CodeSmith

Yes, a Genesi vs. Hyperion lawsuit is the only combination we didn't have yet

@COBRA

Hopefully the relationship won't be an abusive one

[EDIT] sorry double post

Last edited by Turrican3 on 13-Jun-2007 at 10:18 AM.

@CodeSmith

Personally, I wouldn't trust Mr. Buck any more than Mr. McEwen, but of course having OS4 on the Efika would be a good thing. Although I'd rather see OS4 on ACube's board as I find that board more attractive.

@CodeSmith
Given the very good relationship between Hyperion and ACube I would say that an agreement with Genesi is unlikely IMHO (what for? OS4 for Efika would basically kill the Amiga side of the SAM project, unless they REALLY want a very broad offer: ultralowend --> Efika, lowend --> SAM, mid-range --> Moana aka MacMini port).

My ideas are unchanged anyway: the cheaper the combo HW+OS4, the greater the chances of success.... I just want an OS4-capable HW as soon as possibile.

@hatschi

This is not GOOD for A.Inc. The Judge not granting the injuction, with a clear contention of ownership must feel that AI will not be able to prove ownership based on evidence provided even in a long term court case. WHY; If Hyperion sells OS 4, and it is later found that AI is the rightful owner, the Judge will be complicite in the sale of someone else's property, so the Judge at this point must feel AI will not be able to prove it. Period. This case may be over, NOW. The most expensive $ 250 loss ever . . .

Now, where is my ACube Samantha with OS 4 . . .

_________________
Avatar babe - Monica Bellucci.

This is too complicated for me. What happens now?!

I still have the gut feeling that this is something Hyperion was counting on. That they knew about the insolvency, transfer of rights etc. and never said anything to AInc. in order to keep the code. Legally they may be right.

one could say AInc have themselves to blame for not being able to manage to do something as simple as transfering rights from one company to another, but still...

@Cravan

Quote:

This is too complicated for me. What happens now?!

The court case resumes. For the time being Hyperion can retain their rights to OS4 and continue business as usual, the developers retain their rights to their work/sources, etc.

@wolfe

Quote:

WHY; If Hyperion sells OS 4, and it is later found that AI is the rightful owner, the Judge will be complicite in the sale of someone else's property, so the Judge at this point must feel AI will not be able to prove it.

No, the judge merely pointed out that on the scale from "no damage" to "irreparable damage", AI was actually quite near the "no damage" end, and that there certainly was no damage coming which could not later be cured simply by shuffling around money.
Given that lack of demonstratable damage of any significance, the hurdle for "likely to succeed on the merits" becomes quite high. Extremely high, in fact. And given the current chaotic state of all the evidence, the judge understandably chose not to pick a clear winner at this point.

I think the judge summed it up quite nicely when saying "An injunction is intended to preserve the status quo; In this case, the status quo is best preserved by doing nothing" (paraphrased, not quoted). It's not like anything of any real importance has happened in the last 5 months; There is very little danger of anything happening in the next 5, either.

@COBRA

Quote:

Yes, a Genesi vs. Hyperion lawsuit is the only combination we didn't have yet

or maybe the folks at Hyperion need a holiday badly? Vegas would be great

_________________
"The system no longer works " -- Young Anakin Skywalker