@Radov



Quote:

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"

Fun but totally wrong!
It's not a car it's softwarerights. I ar a softwaredeveloper and use often symbolic
sum of money to hold it in the work. When the work is finish I have paid for my WORK not for the developed software or rights.
When it's paid I have no rights to the software.

It's clear: Hyperion lose the case!!

Last edited by linnar on 07-Jun-2007 at 02:44 PM.

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@Radov

Quote:

I think that's a wrong comparision, it should be:

The point was --- if you manage to get advantageous contract terms negotiated, that does not indicate a lack of interest, or seriousness.

And yes, the buy-back terms were extremely advantageous to AI. And quite unambiguous, too --- this whole "Hyperion was expected to be able to make money from it first" might be what Hyperion thought (I doubt it, though), but it sure is not what the contract says. In fact, the contract EXPLICITLY says that AI can buy things back *before* completion; Hyperion will have a hard time arguing that they should have been allowed to make money from OS4 before completing it?!?

So it comes down to Hyperion signing a contract with terms which are quite sucky for them. And why I may or may not feel sorry for them, the court case is not about who is the more likable of the two parties, but about whether Hyperion did the things they committed to when they signed the contract.

@umisef

I think there was nothing wrong with the contract at the time, it was an agreement between 3 parties, the effort estimation was based on the fact that Escena will deliver the proposed hardware, and Amiga Inc. will provide all the necessary 3.x sources and documentation, etc. It was going to be a much smaller job if it the conditions did not alter so dramatically. What the parties should have done was to write a new contract when the conditions altered, with new effort-estimation, so that everyone is clear about what each party will deliver under the changed conditions. That's where the mistake was made and this should be a pretty good lesson for them.

@umisef

Quote:

And yes, the buy-back terms were extremely advantageous to AI. And quite unambiguous, too --- ...

Not at all, as it was the same procedure done before with the Updates 3.5/3.9 with Haage&Partner. There was the selling of the Updates the merely income for the development and not AmigaInc. paying for it

Quote:

... this whole "Hyperion was expected to be able to make money from it first" might be what Hyperion thought (I doubt it, though), but it sure is not what the contract says. In fact, the contract EXPLICITLY says that AI can buy things back *before* completion; Hyperion will have a hard time arguing that they should have been allowed to make money from OS4 before completing it?!?

I don't see a problem here, because, if you follow the contract, they would have been allowed to sell boxes of the finished product without paying revenues to Amiga Inc. IMHO. Intrest and title does only mean loosing control of whats in the package, but it doesen't revert the right, that Hyperion is allowed to market AmigaOS4 without paying anything to AmigaInc.

@COBRA



How long is this gonna go ???

Hyperion KNEW that H&P wouldn't give out sources for 3.5/9 months before they signed that contract.

Hyperion DID get the 3.1 sources, wether they made a detour through Barthles hands or not doesn't matter.

Everybody knew (or atleast should've known) that the whole Escena-project was dead by summer 2001.

The only reason that I can think of is that Hyperion thought AInc would soon go under and that it therefore didn't matter what details were in the contract.

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@Kronos

If Hyperion and Amiga Inc. were of the understanding that the 3.5/3.9 sources would not be available, then why did they sign the contract which states explicitly that Amiga shall provide the 3.5/3.9 sources/documentation for Hyperion to do the work, and why would they even sign a contract if they knew that the proposed hardware will never make it to completion? *yawn*...

Quote:

fairlanefastback wrote: In fact they said they were not at all familiar with the version Amiga presented, inferring it was a fabrication.

Actually I can't find a reference to Hyperion saying they werent familiar with it, we have the Friedens didnt sign it, I'm not disputing that, and it doesnt matter what version they signed. Hyperion signed a deal with KMOS, just like they signed a deal with Itec, arguing they werent the successor company is silly given those facts.

Quote:

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

The language for the contract is for a buy-back, there is no clause in there that even hints its a buy-in.

Quote:

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.

Its says it for software for Artic PDA, its signed by Hyperion and KMOS, thats the whole point of the thread. Lets be honest here, Scott missed the signed version in the Hyperion records and didnt think there was one.

Quote:

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.

First of all I'm completely correct about the insolvency issue, but it doesnt matter because as I said before and as several of us have shown, before they signed the deal with KMOS for the port to the arctic PDA platform on May 26, 2004 dozens had made comments about Bills $100 comment including Ben Hermans. So saying that we didnt know on May 26, 2004 what Bill had said in August of 2003 is a complete fabrication.
-Tig

Last edited by Tigger on 07-Jun-2007 at 04:10 PM.

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@Tigger

Quote:

Actually I can't find a reference to Hyperion saying they werent familiar with it

They state in their response that the (unsigned) Arctic contract which Amiga attached is completely unknown to them. But this has no relevance IMHO.

@umisef

Quote:

The point was --- if you manage to get advantageous contract terms negotiated, that does not indicate a lack of interest, or seriousness.

That was not my point at all.

My point was quite the opposite. It's great they got good terms, but THAT they did not "act" on them is what I think will hurt them, NOT the terms themselves.

Let's take your car example. Say it was a Mustang and the bargain it down to $5. They judge can't fault them for that.

But if it takes them 4 years to pay off the $5 dollars and they do it buy paying $1 here and $1 there. Then the judge will say, " Are you crazy !! You had the best deal ever and you ####ED it away!"

That was my point. An OS for $25,000 and they didn't bother to even keep track of payments? Or get a Paid in Full letter when they say the claim they thought they did pay for it? Very strange for such a "great deal".

Last edited by AmigaHeretic on 07-Jun-2007 at 04:45 PM.

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@linnar
My example was not about every software dev company in the world. It was about Hyperion and Amiga Inc. A Inc had no money at the time, and allowed Hyperion to bundle AOS4 with Amiga One computers. How many Amiga One's were produced? 2000? What about conditions you have to meet to use 'Amiga One' name?
Yes - I know. This is Hyperion's fault. They should clearly stated in contract how many money they want to earn. And I'm preety sure it was last time they have trusted Amiga.

@umisef

Please - correct me if I'm wrong - but there were 2 ways (signed in the contract), that allowed Hyperion to make money with OS4:
1) OS 4 bundled with AmigaOnes
2) OS 4 for classic Amigas ('target hardware?)

Quote:

Hyperion will have a hard time arguing that they should have been allowed to make money from OS4 before completing it?

Maybe Hyperion is going to prove that AInc never tried to fulfill their side of the contract?
Very small amount of overpriced Amiga One's?
Hard to meet conditions if you want to use 'Amiga One' name?
No 'taget hardware'?

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double post

Last edited by AmigaHeretic on 07-Jun-2007 at 04:45 PM.

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@COBRA

I don't know why (but I think I made quite a good guess), I just know that whats in the public records (read ann.lu,amiga-news.de). Here you will find that one of the reasons why the negotiations between MOS and AInc failed was because AInc couldn't get the 3.5/9 sources (probraly for pretty much the same reasons they are now unable to get the 4.0 sources). Several quotes on that in summer 2001 (and indirectly acknowldeegded by Hayperion).

The Escena-fiasco should have been obvios from the start, as it was not only a plain stupid idea, but based on the assumption that a 1-man-halfwit-show could design a (marketable) northbridge from programmable logic-chips.

And if that wasn't enough Mr.Haage himself stated that he had halted OS4 in summer 2001 due to Eyetech/Escena's complete failure (which lead to the infamous "Party on" flamefest, but lets not get offtrack).

So the whole contract was created by mixxing lots of intentinonal dishonstey with naivity and megolamina-dressing on top, carefully leaving out any real buisness-skills. And all 3 parties had their equal share of that mix.

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@Tigger

Quote:

Actually I can't find a reference to Hyperion saying they werent familiar with it

There is alot to read, its in bold in a declaration by Evert, it says: "Please note that the unsigned contract submitted by Amiga Delaware as Exhibit G relating to the same Arctic development work is materially different and is unknown to us."

That statement is preceded again with him saying they had a different agreement in place known as the "Agreement for the provision of software development services". Hence, again why I believe scabit said there was no "Artic agreement" in force, the way Amiga titles the "materially different, unsigned, Hyperion says they never even saw it document" as it were. Hyperion and the Friendens basically kept saying "Artic agreement' = we never saw it, never signed it, don't know what it is.

Quote:

The language for the contract is for a buy-back, there is no clause in there that even hints its a buy-in.

Your interpretation yes. We know your interpretation, you've said it over, and over (and over times a high multiple). Neither term is in there (you said at one point your term was there - it wasn't). You agree with Amiga's use of the term as a properly descriptive one. Cobra prefers the use of the term he feels is the properly descriptive one, which to him is "Buy-in". So you agree with the word Amiga wants to use to sway the judge, and Cobra agrees with the wording Hyperion has chosen to try to sway the judge in the opposite direction. No one is bashing your opinion. But your opinion dosen't make it so one way or the other. The intention of the parties at the time won't even decide what it means today. Its the judge who will decide that. Oh and they are human too, so the outcome, while it may be more likely in one direction that the other, is by no means certain.

Quote:

Lets be honest here, Scott missed the signed version in the Hyperion records and didnt think there was one.

And you know this through what, omniscience? Maybe you are right, thats not how I read what he wrote.

Quote:

First of all I'm completely correct about the insolvency issue

You know Tigger, even if the judge rules exactly the way you are sure about dosen't mean it was sure to happen that way. You write in this manner often. It almost seems that you want to be the last man standing in any thread about the case and the documents, as if somehow that will mean victory for Amiga and show you as the Amiga community legal expert in the end. I don't mean this to sound rude, but I can almost picture you having already spent time on a "I told ya so" style victory speech.

Quote:

So saying that we didnt know on May 26, 2004 what Bill had said in August of 2003 is a complete fabrication.

While I agree that I find it unlikely Hyperion did not know, that dosen't mean that was the case. They may not have had the full transcript of Bill's deposition at the time. But of course maybe they did know and now its just a tactic. But nonetheless its one of the tactics they are using. There is little doubt that Hyperion is trying to sway the judge by showing questionable ownership transfers with the same players always involved to shed debt and retain assets. Judgements don't always come down to the law, indeed as Bill McEwen even once pointed out in the Thendic case (to paraphrase) "you never know what can happen when you get into a courtroom". Hyperion is looking to be the likeable one, with Amiga conversly looking dishonest as they would try to paint it. Frankly I'm disappointed in both sides.

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@Kronos

According to what I read on the net, negotiations with MOS failed because the MOS developers had different plans/ideas/roadmap than what Amiga wanted, thus they couldn't come to an agreement, and because the MOS developers did not give an option for Amiga to regain control of the OS development. And before you say that "but they have the same problem now with OS4" I'd like to point out that the rights and sources of most of OS4 are contractually transferrable to Hypeiron (including ExecSG) and then to Amiga, if Amiga is prepared to pay for it what it's worth (e.g. make a fair offer).

Quote:

AmigaHeretic wrote: @umisef Quote: The point was --- if you manage to get advantageous contract terms negotiated, that does not indicate a lack of interest, or seriousness. That was not my point at all. That was my point. An OS for $25,000 and they didn't bother to even keep track of payments? Or get a Paid in Full letter when they say the claim they thought they did pay for it? Very strange for such a "great deal".

Actually isnt there letters in the documentation where they ask for receipts for the money paid and they did eventually get a receipt which Hyperion now says they wrote for the wrong amount (they wrote 22,500 when they were paid only 22,250). According to the contract they bought the cleaned up 3.1 sources from Olaf in October 10, 2001 but now complain that Amiga didn't provide the 3.1 source. They had the 3.1 source before the November contract was signed according to the documents they provided.
-Tig

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Quote:

fairlanefastback wrote: @Tigger Quote: First of all I'm completely correct about the insolvency issue You know Tigger, even if the judge rules exactly the way you are sure about dosen't mean it was sure to happen that way.

Legally yes it is. Thats what I cant get to click for you. McEwen saying we have no money only IP and we have lots of debts, doesnt make them insolvent in a legal sense.

Quote:

Quote: So saying that we didnt know on May 26, 2004 what Bill had said in August of 2003 is a complete fabrication. While I agree that I find it unlikely Hyperion did not know, that dosen't mean that was the case. They may not have had the full transcript of Bill's deposition at the time.

Everyone had that page of the transcript at that time, as I pointed out, its been available since mid August of 2003. Ben Hermans managing partner of Hyperion has made comments about that transcript. Rich made it available, Samface made it available, Ben among others made long comments about it. That page is pulled from the Thendic case files. Hyperion knew Bill said that in 2003, signing a contract (plus all the other things they've done since then, cant port to hardware xxx because no license from AI, etc) all show this to be a last desperate grasp for the brass ring that is OS 4.0.
-Tig

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@Tigger

Quote:

Tigger wrote: According to the contract they bought the cleaned up 3.1 sources from Olaf in October 10, 2001 but now complain that Amiga didn't provide the 3.1 source. They had the 3.1 source before the November contract was signed according to the documents they provided. -Tig

Evert's declaration states clearly that October was a misdate on the document and that it was in December 2001 actually.

Quote:

Since Amiga had repeatedly promised Mr. Barthel compensation for this work, Mr. Barthel was not willing to hand over the reworked source-code and Hyperion had to enter into an agreement with Mr. Barthel to secure access to the Amiga OS 3.1 source-code dating back to 1994. The alternative would have been another duplication of efforts with more ensuing costs and delays Attached hereto as Exhibit 4 is a true and accurate copy on the contract between Hyperion and Mr. Olaf Barthel mistakenly dated October instead of December 2001.

You are careful to say "according to the documents they provided". But there goes that attempt at swaying those who don't have the time to read all thats there to see the big picture again.

Last edited by fairlanefastback on 07-Jun-2007 at 05:55 PM.

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@ALL

Let's STOP fighting with each other!
Why WE have to choose sides - AInc or Hyperrion?
They are both right and wrong at the same time.
But they both did huge efforts to keep Amiga alive!
Despite all of his broken promises, Bill DID pull back AMIGA from HELL and start to work on some plans. He was misguided on some foreign paths but he's on the right track now:
Entry level & Power Amiga announced and wants OS4 shipping!
Many of you hate Bill but without him and Mr. Moss Amiga will be dead for years.
They save the NAME by buying it from Gateway and did their best to start things moving again.

Hyperrion did FANTASTIC job with OS4 FAR MORE than expected and now even AInc wants it back completely.
Both sides EQUALLY contributed in keeping Amiga alive.

This is how I will resolved the situation:
Amiga provides license agreements with hardware companies (ACK, ACUBE - and don't forget Freescale, Nokia an most of all Sony - huge markets for OS4)
AInc still owns Amiga brand name.
AInc signed contract with Hyperrion to develop OS4.
Hyperrion did more than originally planned!!!!!! (and of course want more money or bigger piece of cake-sales)
Still OS4 carries Amiga name (which is owned by AInc) and is called Amiga OS4.

AInc - without OS4 they have nothing!
Hyperrion - without Amiga name they also have nothing.

If I'am the JUDGE I would order both sides to start shipping
Start shipping Amiga OS4 - 50% of sales to Hyperrion & 50% to AInc but AFTER 3rd party coders have been fully paid for their hard work (especially Friedens)
Hyperrion continue to develop OS4 under a NEW contract!

Maybe, court is the best thing to get this situation resolved.
But, if only one side win this court thing than WE loose.
Our only hope is that judge make this thing a WIN - WIN situation, so that both sides still stay in game and both making money!

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Quote:

fairlanefastback wrote: @Tigger Evert's declaration states clearly that October was a misdate on the document and that it was in December 2001 actually.

I'm pretty sure Evert's bending the truth there. You ever actually write a contract with an October date in December? We understand jumping from October 28th to
November 3rd (and we have a data change on the contract) as they negotiated the contract and all got together is pretty simple to understand, but saying we accidentally wrote a two month old month on a contract with Olaf that makes us buying the OS after instead of before be finished the AI negotiations is more then a little fishy, the judge is liable to think that as well.

Quote:

You are careful to say "according to the documents they provided". But there goes that attempt at swaying those who don't have the time to read all thats there to see the big picture again.

There is no evidence that this didnt happen in October except for Everts comment, if they had Olaf sign a statement that it happened in December that might rectify the situation somewhat, but its still fairly hard to understand why a contract was written with October on it in a deal with Olaf and Hyperion, given Hyperion said they had no idea they were going to get the OS sources from Olaf until after they signed the November contract.
-Tig

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@Tigger

Quote:

Legally yes it is. Thats what I cant get to click for you. McEwen saying we have no money only IP and we have lots of debts, doesnt make them insolvent in a legal sense.

Its legally sure to happen? What world do you live in that x is always sure to happen and y isn't when human beings are involved? For anything? You can say you think it makes Hyperion's case weak by using it, sure. But, like it or not, a lawyer is using it on behalf of Hyperion despite your saying it will surely fail legally. And just for the record, do you have a law degree in the U.S.? And beyond that, taking a step back, are you saying every judge would always come to the same legal conclusion in every case since its legally sure to happen as you say? It seems to me that judges, like everyone else have leanings on interpretations of law. Thats just common sense.

Quote:

Everyone had that page of the transcript at that time

I think many of us would be interested in reading the long comments you say Ben made about it. Any idea on where any of them are? Like I already said, I'm not saying its a good strategy to use necessarily, but like it or not they are.

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