@Hans

Quote:

My point was that, under the license agreement, Hyperion was supposed to earn much more than $25000 for making Amiga OS4.0. It's just that Amiga Inc. didn't have to pay them the full amount because the profits would come from OS sales.

Well normally I would agree with you there and originally that is exactly what I thought the whole deal was about.

Of course I never got to see the contract in the "'ol days" and had to rely on what Hyperion said about the terms. A buyback was mentioned as well as a condition that Hyperion (and Eyetech) could continue to market and sell the hardware/OS combination if something should happen to Amiga Inc..

Quote:

They chose hardware with bugs that prevented Linux from working reliably, making it unsellable to markets they were relying on. MAI Logic also never made enough money to stay afloat (for the same reason). First people wouldn't buy the hardware because there was no OS4 and they wanted to see it first. Next, OS4 prereleases started coming out but new hardware was no longer available for those that had waited.

All this stuff can only hurt Hyperion as I mentioned before. The late OS made it very difficult to bug test any common sofware/hardware features which indeed with time were worked on as the OS progressed. The later batches of micros took care of many of the problems as well as fixes were forthcoming for older models. By this time it was already too late and still no date for a final release in sight?

In the end it would seem that Eyetech bowed out from the scene directly because the OS was so VERY late in coming and had less and less of a chance to get back investments. This you can't blame Amiga Inc. for.

Now I have still hung in here hoping for the best despite what has happened. I'm sorry that Eyetech left and I'm sorry for this whole situation. That Hyperion appears to be a shell of a company with no paid programmers as employees is not what they have made themselves out to be, but it sure explains alot!

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@DonnieA2

I have no personal stake in any of this.
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@Steff

Quote:

Steff wrote: In the end it would seem that Eyetech bowed out from the scene directly because the OS was so VERY late in coming and had less and less of a chance to get back investments. This you can't blame Amiga Inc. for.

It's true that Amiga Inc. can't be blamed for this. However, Eyetech died because they couldn't sell it as a Linux machine to a wider market, not because the OS took so long. Added to this, Hyperion has already given reasons as to why the OS took longer than expected. These include: failure of Amiga Inc. to hand over the source code, the cancellation of the original Amigaone (resulting in much extra work as the original plan was no longer adequate), etc.

I don't see how the lack of hardware issues hurts Hyperion's case. Having said that, it doesn't help them either. It was merely anecdotal.

Hans

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@thread

My impression, on a couple of the points brought up here:

The fact that AmigaOne hardware dried up fairly early on was not Hyperion's fault, and particularly it was something that was totally beyond their control. So, why would lack of hardware reflect bad on Hyperion? The statement that it would is totally bogus. It is a red herring.

As far as OS4 being completed in 2004... I used to be a regular lurker on the OS4 and AmigaOne mailing lists. (I'm still getting them, actually, but haven't waded in there in ages. I've simply let them pile up unread in their respective mailboxes here.) I distinctly remember statements, ages ago, that OS4 had in fact, functionally, been completed, but that, since it was clear it was going to be some while before new hardware was going to ship, that they were going to continue on with developing it in order to add additional functionality on top of that pending new hardware, and that they were going to fold into OS4.0 stuff that had originally been scheduled for OS 4.1 and later.

So, this tips things back towards Hyperion's favor: They did finish OS4 back then, according to the intents of the contract, even though they didn't call that version OS4 Final.

So far as I know, the relevant mails should still exist in the archives, respectively, at Yahoogroups' and at the other mailing-list provider whose name escapes me at the moment.

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If it was me I'd argue that the contract is null and void because Amiga Inc have done nothing to exploit their own assets thus leaving it up for grabs as 'abandonware'

I've met people, including Fleecy, at mobile phone industry events and heard them say explicitly that they had no interest in Amiga OS and intended to let it die off naturally, and I've heard that from their partners at Tao as well.

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@Steff

When production of uA1's began, demand was so high that each batch sold out in a couple of months. I remember a lot of people writing in the forums that they were unable to get their hands on the machines because they sold out too quickly. So demand was there and many many people were waiting to get their hands on a uA1 so they can run OS4. I never saw people saying that they don't want to buy an uA1 because OS4 is so far behind, on the other hand I saw many people complaining that the uA1 is overpriced and others complaining they're unable to get hold of them. It was quite clear that Eyetech did not produce nearly enough boards to fulfill the demands, so there were other reasons why they did not deliver, you may recall that the last batch of uA1's was in the order of a few dozen, IIRC there were problems getting certain parts in the required quantities, but whatever the reason is, it's obviously got nothing to do with OS4 not being mature enough, people want it badly, and they have been wanting it badly for years...

[getting off topic, removed]

Last edited by CodeSmith on 07-Jun-2007 at 04:45 AM.

@Hans

I think we agree on most of this. We agree the judge will have to use written terms where possible, not interpretation. We agree that Hyperion is unlikely to get ownership of OS4. We agree that the wording sounds more like a buy-back then a buy in.

But, to clarify two points:

Quote:

Hans wrote: This suggests that the court will go back to the "good-faith" interpretation of the contract instead of sticking to the letter of the contract.

That's not what I meant to suggest. No judge will ever take highly contested interpretation over explicit and clearly written contract terms when the two conflict.

My point was, the judge will fall-back to good faith interpretation, as a last resort. That's why I said "forced back to good faith interpretation" when no "solid or indisputable proof" exists.

This was a detail in my larger point, which was Hyperion is unlikely to get ownership of OS4 unless they can show air-tight cause because ownership transfer is a drastic legal remedy. Without such air-tight cause the Judge will be forced to fall back to written contract terms or (worst case) good faith interpretation of absent but implied contract terms.

Quote:

From your earlier email: "The same goes for Amiga Inc. as well."

No, not for the point I was making. I was only talking about ownership transfer.

To summarize my original point.. Ainc. doesn't have to prove that they acted in good faith to retain ownership. Ainc. has no burden of proof to retain was is theirs at contract origination.

But Hyperion has a huge burden of proof to forcibly take ownership, via a clause that contemplates exceptional circumstances. And with regard to who owns OS4, that tips the scales in Ainc's favor by virtue of the legal system itself, not the merits of the arguments.

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@Hans

Quote:

Reciept for $25000, ok. Note that $25000 plus all outstanding debts is required, so a $25000 reciept is not definite proof. Hans

The only thing I see tangible for a solid defense for Hyperion is the " plus all outstanding debts " portion of the contract. Target main points of concern:

How much are they owed / (what's fair) ? ? ? - - - 2 Million offered ? ? ? (Cash ? )

Can AI pay that ? ? ?

Lawsuit over . . .

Provided everyone is willing . . which so far is a big NO . . .

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@NomadOfNorad

Quote:

The fact that AmigaOne hardware dried up fairly early on was not Hyperion's fault, and particularly it was something that was totally beyond their control. So, why would lack of hardware reflect bad on Hyperion? The statement that it would is totally bogus. It is a red herring.

The statement was in reply to an earlier statement that Hyperion was waiting for hardware. Just about what you state here as well.

But the fact is that is a bogus statement and if you've been here that long you would know. Hardware came quite close after the initial announcement of the OS4 project but OS4 was delayed. Then it was delayed again, and again. When I bought my system the SE had been around for quite a while running Linux. There was still no OS4 for anybody not a developer and I didn't get the first prerelease until at least a year after that.

Saying that "hardware dried up fairly early on was not Hyperion's fault, and particularly it was something that was totally beyond their control" is barely true at best. Hyperion have been advocating PPC from the start and refused any cooperation with Genesi. Eyetech gave it their shot and Hyperion couldn't deliver on time.

That there is not an abundance of desktop ppc motherboards on the market can not have been a surprise to Hyperion. To blame Amiga Inc. for this is way over the top.

Firstly Amiga Inc. was never supposed to supply either hardware or the OS. the Troika of Amiga Inc., Hyperion and Eyetech got together and agreed on the strategy, insisted on a PPC system and that OS and hardware would be sold together.

For the whole life of the hardware that was sold not a single version was sold as a final version but only as developer versions. Nothing anybody could expect to sell in large quantities. That they sold everything they made didn't really portend an overwhelming demand but more likely a reasonable idea of how many could be sold as prereleases.

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@jingof

Quote:

jingof wrote: @Hans Quote: That's not what I meant to suggest. No judge will ever take highly contested interpretation over explicit and clearly written contract terms when the two conflict. My point was, the judge will fall-back to good faith interpretation, as a last resort. That's why I said "forced back to good faith interpretation" when no "solid or indisputable proof" exists. This was a detail in my larger point, which was Hyperion is unlikely to get ownership of OS4 unless they can show air-tight cause because ownership transfer is a drastic legal remedy. Without such air-tight cause the Judge will be forced to fall back to written contract terms or (worst case) good faith interpretation of absent but implied contract terms. Ok, but the contract explicitly states that if Amiga Inc. go bankrupt (I can't remember the specific wording) that Hyperion retains all the rights to Amiga OS4 and beyond. Quote: [quote] From your earlier email: "The same goes for Amiga Inc. as well." No, not for the point I was making. I was only talking about ownership transfer. To summarize my original point.. Ainc. doesn't have to prove that they acted in good faith to retain ownership. Ainc. has no burden of proof to retain was is theirs at contract origination.

Ok, so we were talking about slightly different things here. I see your point. Hyperion don't need to prove that they acted in good faith either; they need to prove that Amiga Inc. went bankrupt (to gain full ownership of Amiga OS 4), or, that they didn't receive the full payment in within six months after completing OS4.0. However, neither are operating based on the good-faith intent of the agreement in this law-suit. Both are using good-faith arguments.

Amiga Inc's has to prove that:
- They payed $25000 + outstanding debts, in time.
- Hyperion violated the license agreement, allowing them to use exceptional circumstance clauses to terminate the license.

There is a high burden of proof in both these points, because without them, they have no case. All the other arguments are rather messy, and irrelevant if they can't proove at least the payment issue.

I think that it will be hardest to prove the license agreement violation, as it's based on claims that Hyperion acted in bad faith, and the intent of the contract, rather than the explicit wording. For example, the following points relate to parts of the contract with vague statements such as "shall use best-efforts to":
- Amiga Inc. claim that Hyperion didn't use best-efforts to secure contracts that included transfer of source-code. Hyperion maintains that they did.
- Amiga Inc. claim that Hyperion acted in bad-faith by contracting out ExecSG and not obtaining rights to the source. Hyperion claim that this was not possible and point out that the contract not requiring source-code contracts, even for core OS modules. NOTE: Once Hyperion has the money to pay the Friedens in full, Hyperion will have the source-code, and could transfer it to Amiga Inc.
- Amiga Inc. claim that Hyperion violated the contract by taking too long. Hyperion counters that Amiga Inc. didn't supply the required sources and hardware (the original Amigaone was supposed to be attached to an AGA Amiga) and therefore they did use their best efforts to be done on time.

Hans

Last edited by Hans on 06-Jun-2007 at 10:43 PM.

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Quote:

scabit wrote: Hmmm...you do know that the Freidens testimony expliclity indicates that they never signed an "Arctic agreement". Since Ainc can't produce a signed copy, this agreement is invalid. You should read some of Hyperions supporting devense material before commenting my friend.

You do know a signed contract for the Arctic Software PDA port between Hyperion and KMOS is part of the Hyperion Defense Material right my friend? Exhibit 12 of Evert Cartons 1st declaration in case you want to read it. Its signed by Garry Hare for KMOS and Evert Carton for Hyperion.
-Tig

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Firstly,
AmigaHeretic said:

"The judge may look at $25,000 in the contract and say well if you guys were actually serious about a ?NEW? AmigaOS then that amount is a joke so you obviously didn't care a whole lot."

"If it was me I'd argue that the contract is null and void because Amiga Inc have done nothing to exploit their own assets thus leaving it up for grabs as 'abandonware'"

"I've met people, including Fleecy, at mobile phone industry events and heard them say explicitly that they had no interest in Amiga OS and intended to let it die off naturally, and I've heard that from their partners at Tao as well"

@Tigger

Scabit seems to be refering to the fact that Hyperion said multiple times they did not sign the earlier document version that had Artic *in the title of the document* and for which Amiga refered to as such. In fact they said they were not at all familiar with the version Amiga presented, inferring it was a fabrication.

They specifically refer to Exhibit 12 as the agreement they actually signed, versus the version Amiga presented, which apparently was not the actual one that would at all be in force. Exhibit 12 deals with the Artic, but it is not the "Artic Agreement" Amiga referred to. Hyperion lists it by its actual name in their papers, the "Agreement for the Provision of Software Development Services".

Again, like Cobra will use buy-in, you will use buy-back.

As Scabit will view this agreement as the "Agreement for the Provision of Software Development Services", you will view it as the Artic Agreement.

You use Amiga's spin terms, others user Hyperion's.

Now to your point, to you this document shows acceptance of successors. Scabit wasn't addressing that in what he said. He was addressing your terminology, saying Hyperion never signed the Artic agreement Amiga presented as I read his post.

As to the acceptance of successors, Hyperion's line is they were not aware of the insolvency Amiga Washington went through when it occured and feel they were duped on that. Hence why they present the transcript with Bill from the previous Thendic case. You can say until you are blue in the face that "no judge will" do this or that but the fact is we won't know until the fat lady sings as they say. So you say they acepted the trasfer, they say they did without proper disclosure from Amiga, saying Amiga hid its insolvency, from them, and others. You say no judge will accept that since no previous court made such ruling. They are presenting it for the judge in this case to decide anyway, thats just the way it is.

As so thats what it will come down to, that judge in Washington State and how he views this particular point.

Last edited by fairlanefastback on 07-Jun-2007 at 12:03 AM.

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@choochy

Actually there are such instances in the US. I am not saying it applies here at all. Lets not go there. But there are rules about needing to protect your trademarks actively. Xerox used to have ad campaigns telling people not to call a copy a Xerox, unless it was actually made by a Xerox machine.

And if someone squats on your land long enough and you don't enforce your rights within a period of years the squatter can get rights usage of the land.

And people are mentioning it because Hyperion mentions it in their papers specifically a number of times. And so, like it our not that aspect will get discussed, because Hyperion has made an issue of it. Now that may fall flat on its face for them, but since they brought it up its not "bloat" in the thread, even if we think its a silly defense.

Quote:

This could be because of misrepresentations from Tao, who knows! But the point is that as soon as they realised that Tao couldn't run stand alone they required AmigaOS as a native OS for AmigaDE. And then contracted Hyperion for the job.

I believe they still believed in DE and Tao well after contracting Hyperion based on how they presented their product line. Hyperion even alludes to this in their papers I believe.

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@AmigaHeretic

Quote:

The judge may look at $25,000 in the contract and say well if you guys were actually serious about a “NEW” AmigaOS then that amount is a joke so you obviously didn't care a whole lot.

Huh? So You are suggesting that the judge might question AI's sincerety because they managed to negotiate good contract terms?

If you went to buy a used car, and found exactly the one you want, and things come down to the haggling phase.... Your first offer is "$500" for that 1975 Mustang Cabriolet you expect to pay around $7,000 for, yet after you say "$500", the licensed used car dealer just says "OK, deal!"..... Do you really think getting a good price in any way indicates YOUR insincerety?

I mean, yes, one might look at the $25,000 price tag and question whether Hyperion was ever serious about any of this; In particular, one might wonder whether Hyperion ever had any intention of making good on clause 3.01, or whether that was just a bait clause to get AI to sign the contract, and if AI (against expectations) not only survives long enough, but also finds $25k somewhere, well, deal with it when we get to it....

I have done this myself in the past; Thrown in a few clauses into a contract draft which I thought of as "sacrificial clauses", i.e. ones I never expected the other party to accept, but which were sensible enough to make their removal gain me some "credit" in the negotiations. And yes, it has happened (ironically enough, with AI(W) :) that the other side said "OK, deal!". It was rather disconcerting, but it certainly did not indicate a lack of seriousness on *my* part.

@choochy

Quote:

I dont understand you people!! How the heck could you think someone can have the right to someone else's property, just beacuse they didn't show interest in it... So, basically your saying, that it is legal for my friend to steal my video camera and not give it back if i hadn't shown any interest in it or used it for some years? And you think a judge will order me to let my friend keep using my camera and not have to give it back to me, because i am not using it? Get Real!!! Sorry, but this kind of rubbish really upsets me, and also bloats a thread with crap.

No, I think you have it all wrong there, AmigaOS4 wasn't Amiga Inc's property at all, I don't think anyone is disputing that. The contract basically gave the rights to AmigaOS4 to Hyperion (and Eyetech?). Amiga Inc. left an option in there that they could back into it for $25000 (if this meant Buy Out the whole thing or Buy In as partner that is under dispute). Buy AmigaOS4 WAS (at least) Hyperions and as NOT owned by Amiga Inc in any way. They didn't "loan" it to them as you suggest or borrow it.


What is being disputed is, Did it become their property by paying the money (and on time), that is the whole point of the lawsuit.

Wether your of the view (as Amiga Inc are) that it was a "Buy Back" clause or of the view (like Hyperion are saying) that it is a "Buy In" clause. The OS was Hyperions and Amiga Inc. had the option to pay $25000 to either buy it or join it. (that part is up in the air too)

Either way "Buy" would suggest that Hyperion owned "it" and Amiga Inc "were" suppose to pay $25000. For the whole thing or just as a partner everyone can argue, but I think you're way off comparing it with the video camer thing.

It was more like Amiga Inc asked Hyperion to build a video camera with an option to buy they video camera at somepoint if they so chose, though they didn't have to buy the video camera at some point if they didn't want to. So the video camera IS Hyperions. But did Amiga Inc. come up with the money and enough of it in time? That is the question. I'm just saying the judge may see that if Amiga Inc really wanted to "buy" the video camera they should have actually payed attention a little better. Now that the video camera is done and they find out the video camera has the ability to tape women with their clothes off, well, now Amiga Inc, years later decide, we REALLY want that video camera!!

So yes, it was Hyperions. Amiga Inc had the option "Buy" (or Buy in or whatever) but were they too late with the money AND were they too late with actual INTEREST in the PRODUCT itself. I think that could be a factor.

So they questions is:

Did Amiga Inc. not come up with enough money and/or not in time if not then:

1. Hyperion still owns it

or

Did Amiga Inc. come up with enough money in time? If so then:

2: Does Amiga Inc. own it outright (ie. it was a buy out)

or

3. Was it in fact a "Buy In" and Amiga and Hyperion both have equal rights to AOS4

Last edited by AmigaHeretic on 07-Jun-2007 at 04:43 AM.

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@Steff

Quote:

Steff wrote: Saying that "hardware dried up fairly early on was not Hyperion's fault, and particularly it was something that was totally beyond their control" is barely true at best. Hyperion have been advocating PPC from the start and refused any cooperation with Genesi. Eyetech gave it their shot and Hyperion couldn't deliver on time.

My understanding is that Eyetech had a couple of problems with providing the Hardware (on time, as you put it).

1. Alan was unable to develop markets for the A1 as a Linux board, and even went to China with IBM on several occasions to demonstrate the A1 running OS4.

2. Alan had contracted to buy CPU's on a call off order, and they weren't able to get the cpu's at the negotiated price, by the time & in the small (relatively) quantities Alan Redhouse required them. If he had bought them at the new price, the new A1's would have had to been even more expensive.

At Bath, Alan talked about economies of scale, and that they were potentially looking at an order erquirment of 50,000 boards to bring the price of the boards down. Now I don't know if this was a ficticious quantity, or whether it was based on potential markets, but that was when he was travelling to China.
The Chinese market never became reality, hence Eyetech withdrew from the A1 market.

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@umisef

Quote:

If you went to buy a used car

I think that's a wrong comparision, it should be:
You are able to build (!) a car, someone wants to hire you and an agreement looks like:
"Hi! I really need you to build a vehicle for me, but sorry - have no cash! Luckilly there is fine solution: you will 'develop' one and I will grant you an acces to the _amazing_cash_blow_ venture! The one I need that car for! Once you get enough money i will buy (back?) that car for 500$"

Unfortunately - that venture had ended long before the car 'was able' to earn money. And when you were trying to cover your costs the guy came back, telling you:
"Sorry - I think that I will terminate our agreement. Here are your money (500$) - give ME back MY car"

That's a quite diffrent point of view, don't you think?

Last edited by Radov on 07-Jun-2007 at 01:31 PM.

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@Swoop

Quote:

At Bath, Alan talked about economies of scale, and that they were potentially looking at an order erquirment of 50,000 boards to bring the price of the boards down. Now I don't know if this was a ficticious quantity, or whether it was based on potential markets, but that was when he was travelling to China. The Chinese market never became reality, hence Eyetech withdrew from the A1 market.

I'm not sure if this is public knowledge - but people were in negotiations with Walmart to replace all their tills with OS4 and the micro A1.. the idea was, the PPC cpu used so little power that there energy bill would plummet.

But these talks broke down... I'm not at liberty to say why, because I dont know the whole story - but this would have given the 50,000 boards... or at least gone some way to achieve that number.