whot is the date when the hammer falls ?????
and a new case can begun..... or an appel case

whot will be the out comes if amiga inc wins or if hyperion wins,

i think its stupid to sit down here and talk about the case becuse wee dont the full overview over it anyway, wee dont know what papirs amiga inc has and hyperion has

Still discussing this subject?

Could someone please sumarize why this is still an argument? I mean almost nothing
has happened since the judge threw out the preliminary injunction. So why still argue?

What's the points everyone agrees upon and what points there's still disagreement on?

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@Samwel

Quote:

What's the points everyone agrees upon

Either Amiga, Inc.(WA|DE)/KMOS/Itec/Amino will win the case(s) or Hyperion will, or it'll be simply tossed out of court as a waste of everyone's time, or none of the above.

Quote:

and what points there's still disagreement on?

Which of the semi-informed non-lawyer's opinions actually comes close to the way the judge/jury see things, if any do.



-- gary_c

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@retro

I guess it keeps people occupied while they're waiting for the outcome of the lawsuits...

The irony in all of this is that as far as the original lawsuit is concerned, there can be only 3 possible outcomes, two of which are bad for AInc, while the 3rd one is good for them and the only one they have any control over.
Why they haven't made the right choice is beyond me, but then, you can't beat common sense out people, even if it's for their own good.

Outcome #1: AInc wins, they get useless pieces of an OS which they can't complete, Hyperion drops out of the picture and the current 4.0 release is the last version of AmigaOS we'll ever see. Seeing AInc's history there's no way they could come up with anything new on their own so that would be the end for them too. At that point I don't know if Hyperion, DiscreetFX or even Genesi would be able to buy the IP to resurect 4.x

Outcome #2: Hyperion wins, AInc has no viable product and ends the same as in #1, but the users are better off as 4.x would be around for the long haul and new hardware would rain and pour.

Outcome #3: AInc settles the case with Hyperion by signing a new contract which lets Hyperion deal with all things OS4, coding, distribution and platforms it can add support for, and simply pays a reasonable royalty to AInc for each copy of OS4 sold.
(there's no point in having AInc decide what HW should be licensed as they lack the required technical skills to make a valid assessment. At best they could optionally offer a license to allow printing "Amiga" on the board/case).
That way AInc has viable products with its name on it, some revenue stream, and still has to do nothing more than it's ever done, except staying out of the way for a change.

Clearly, outcome #3 is the only wise course of action, and it's better to open the door to (potentially) millions of $$$ worth of royalties (at the "expense" of putting one's Ego on hold long enough to admit having screwed up and fixing a business relationship) than going out of business completely.

The Itec lawsuit is both a desperate measure and a really bad move as it draws scrutinity into AInc's and Pentti's shady business practices.
While at first sight that case seems like a slam dunk (even though IMO it can't succeed because Pentti unknowingly sabotaged it), the potential consequences of an FTC inquiry are far too risky to be worth pursuing, again, for what? Small and useless pieces of an OS...

I haven't seen the Hyperion vs Amino papers so I can't comment on that but I hope Hyperion's lawyer knows what he's doing because my gut feeling is that spreading this matter to a 3rd court case isn't a good idea.

I'm confident that in the end things will work themselves out, but if I had any say in it I'd go for the easy way rather than the hard way...

It's all in my opinion of course, and opinions are like underwear, if you have a problem changing it, well, you should stay away from other people...

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@AmigAlex

Quote:

I haven't seen the Hyperion vs Amino papers so I can't comment on that but I hope Hyperion's lawyer knows what he's doing because my gut feeling is that spreading this matter to a 3rd court case isn't a good idea.

If Hyperion win Against Amiga(D) & ITEC it will on 2 points.
Invalid transfer of the Agreement Rights/Fraud and Insolvency of AMIGA(W)(now Amino)/failure for the full US25,000 to be paid.

As AMIGA(W) is still alive Hyperion need to force home the insolvency issue.
Also if the transfers to ITEC and KMOS/Amiga(D) are deemed to be invalid then
the rights of AMIGA(W) will still rest with AMINO who Hyperion claim have caused Hyperion costs by breaching the 2001 agreement.

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@Dandy

Quote:

Dandy wrote: @Tigger Quote: Tigger wrote: @AmigaHeretic ... Eyetech likes AI more then they like Hyperion. ... I take this as your personal guess. Otherwise I would expect them to have sued Hyperion long ago...

Hyperion owes Alan alot of money, Alan made several comments over the years about how much Hyperions OS delay cost him as well, in addition at shows he and Fleecy used to always pal around, so its an educated guess at very least, though I would suggest its based on what we have seen so far represented by the parties involved.
-Tig

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@Dandy

Quote:

Dandy wrote: @Tigger Quote: Tigger wrote: @AmigaPhil ... No the grouping is very important (in US law) to point us to being a two party contract we even have a name for the second party which is the AmigaOne partners. ... Hmmmmmmmmmmmm - is this part of the 2001 contract "(OEM) LICENSE AND SOFTWARE DEVELOPMENT AGREEMENT This agreement (this "Agreement")is made ... by and between: 1. Amiga Inc. (hereafter: "Amiga"), ... and 2. Hyperion VOF (hereafter: "Hyperion"), ... 3. Eytech Group Ltd. (hereafter: "Eyetech")" what would be called a "heading" in the English language?

No, the headings are the names after the numbers for example:

2.02 Timeline (the Timeline here is a heading) The names after the Article numbers would also be headings.

-Tig

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@Dandy

Quote:

Dandy wrote: O.K. - but how could ITEC then sell OS4 to KMOS, if they were not the legal owners of it (i.e. not the owners of the 2001 contract)? Is it legal/common in the US to sell other persons/companies property?

Its legal and common to do it in your country as well if they have the other companies permission. I agree to buy a car from you, we agree on a price, I show up with my friend Jimmy and Jimmy pays you for the car and he and I drive off with it, not that big a deal. According to the 2003 contract, Itec bought the OS, they then sold the 2003 contract which requires delivery of the OS to KMOS.
-Tig

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@AmigaPhil

Quote:

AmigaPhil wrote: That's why I concluded in the discussion with Tigger that: Quote: In the end, whether we call it a two parties contract or a three parties contract, the liabilities of the companies involved are the same.

But thats not really true. As I said, if its a two party contract, a strong case can be made that Hyperion can take over the duties of Eyetech, I've seen that happen in the past who pays us for instance in our contract on the Osprey (which has 4 members of the other party) has changed over the years, we dont care as long as the checks keep showing up. If its a 3 party contract, they dont have such rights, and its not unusual for individual members of a party to be called out for certain functions in a two party contract, company A will supply the requirement spec, company B will perform Tempest testing at there facility and company C will make quarterly payments of xxxxxx.xx until the total is reached. Where all 3 companies are part of a single party and if they change up there functions, as long as that doesnt impact my cost or schedule, that pretty much has to be ok with me.
-Tig

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@Tigger


Just to rekindle the Assignment of rights issue from Amiga(W) to ITEC.

pdf no35. page 3. lines 7-13.

thus we have BILL M VS JOHN G.
Only one can be telling the truth.

Last edited by Spectre660 on 25-Nov-2007 at 02:55 PM.

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@Spectre660

Quote:

Spectre660 wrote: @Tigger Just to rekindle the Assignment of rights issue from Amiga(W) to ITEC. pdf no35. page 3. lines 7-13. thus we have BILL M VS JOHN G. Only one can be telling the truth.

Sorry, Bill's quote there isnt in conflict with anything John said as far as I can tell. He doesnt say that Itec bought the contract, which is the key part of John's testimony. What is it that only one can be telling the truth about in your opinion?
-Tig

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@Tigger

Quote:

Sorry, Bill's quote there isnt in conflict with anything John said as far as I can tell. He doesnt say that Itec bought the contract, which is the key part of John's testimony. What is it that only one can be telling the truth about in your opinion? -Tig

my distortion field is malfunctioning again.

From a thread long ago.


Quote:

Re: First round goes to Hyperion Posted on 19-Jun-2007 9:52:32 [ #317 ] @edponpon Quote: QUOTE edponpon wrote: @samface True, but Tigger seems to be the "un-official" voice for Amiga Inc, that's why I asked his opnion. Plus as I've stated to him before, he does, AT TIMES, show good points. QUOTE I love it. Whichever side I believe is correct from a legal standpoint, I'm there "un-official" voice. (kinda like that Spurs NBA thing I talked about). As for 39, Hyperion saw the judge was confused about the AI->Itec transfer (he talked about there being 2 contracts, there are not, and one not being signed, again not true) and decided to get as much strength here for negotiations. However I dont think its going to work, the trademarks are in the name of AI Delaware now, Hyperion never had the right to own most of what they are claiming, the judge is liable to think most of it is the ravings of someone who got there legal degree from a crackerjack box. I think Kouri just wants to steamroll over Hyperion, and I think its likely to work, which is likely bad for AmigaOS, unless the "new blood" are really interested in the amiga. -Tig.

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@Spectre660

Quote:

Spectre660 wrote: @Tigger Quote: Sorry, Bill's quote there isnt in conflict with anything John said as far as I can tell. He doesnt say that Itec bought the contract, which is the key part of John's testimony. What is it that only one can be telling the truth about in your opinion? -Tig my distortion field is malfunctioning again.

Apparently its working at full blast or you are working on a new fortune cookie. You are saying the Bills comment in #35 is in conflict with the more recent John G comments, I ask why you think that and you come up with a comment I made about #39 months before we heard from John. How about you explain your point instead of not making it.
-Tig

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@Tigger

These thing happen from time to time.
Another blast from the past


Quote:

Re: First round goes to Hyperion Posted on 26-Jun-2007 16:47:55 [ #512 ] Quote: Boot_WB wrote: However I disagree with your interpretation that the judge is "confused," as I believe you are implying the judges whole interpretation is confused, not just this single fact. QUOTE The problem is that the crux of his arguement (that Itec isnt a successor company with respect to the contract) is invalid because he is looking at Exhibit G of Document #4 and Exhibit 12 of document #26 and not realizing that he should be looking at Exhibit F of Document #4 and Exhibit #16 of Document #26. He also should have been more then a little disturbed by the letter dated Feb 15, 2004 from Ben Hermans to Pentti Kouri that admits that Itec is the successor company to AI Washington (Document 35-2, page 9) given Hyperions current stance that they were not, which he used as part of his final decision. Given Hyperion's former managing partner (who signed the sale agreement) and was in charge at that time say in a letter the Itec is the successor company, and AI says Itec is the successor company, implying it is in dispute and using that as a key item to show AI wont win the case shows he is confused. Itec is the successor (with respect to the contract) of AI (Washington), saying that may not be true and using that as a key point of evidence in the case is flawed. Period. Now the judge could have ruled that AI didnt show proof that they would suffer significant damages if the injunction was not implmented, and thus not granted the injunction, that way he would have had a leg to stand on. -Tig.

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@Spectre660

Do you not have a point to make for what you said?? You said McEwen in #35 is in conflict with Johns comments. Are you unable to actually show that? I mean I can quote back months old stuff on the topic, but you apparently thought you had a point to make and when I asked about it, you haven't responded why you believe what you said, you just keep quoting back things from months old threads.
-Tig

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@Tigger

Quote:

No, the headings are the names after the numbers for example: 2.02 Timeline (the Timeline here is a heading) The names after the Article numbers would also be headings.

To make it even clearer --- "heading" in English is pretty much "Ueberschrift" in German.

@Tigger

Quote:

AmigaPhil wrote: Quote: In the end, whether we call it a two parties contract or a three parties contract, the liabilities of the companies involved are the same. But thats not really true. As I said, if its a two party contract, a strong case can be made that Hyperion can take over the duties of Eyetech, [ ... ]

This "Amiga One Partners" thing is indeed an issue. We can see for example that Amiga Inc. is using this "Amiga One Partners" name in its counter-defense to make assumptions which are not clearly demonstrable elsewhere. (Maybe Hyperion too is playing this game, I don't know. I have to check again the many documents.)
E.g.: in document #59 (page 3 and 4):
Quote:

Any Trademark license purportedly granted pursuant to Sections 2.07 or 2.08 of the Agreement was to Amiga One Partners, not Hyperion, and certainly was not an assignment of all rights in a registered AMIGA trademark for all purposes, as Hyperion claims.

(embolded by me)
First, "Amiga One Partners" is defined nowhere in THAT document; it could be anything. But let assume the definition is taken from the 2001 Agreement: "Hyperion and Eyetech collectively". Because of this definition, the above claim from AInc. is mathematically (logically) false.

I'm going to explain futhermore my POV on this topic (and as usual precaution: IANAL; I might have missed some facts which can alter the following analyse).

To my knowledge, the first time the name "Amiga One Partners" appears in a legal document is in the 2001 Agreement. What the contract tells is that "Amiga One Partners" is defined (written under the "Definitions" article, just like "Software" is too) as "Hyperion and Eyetech collectively". THAT'S ALL !
There is nothing else in the 2001 Agreement, nor (AFAIK) in any other legal document, that settle the terms and conditions of a partnership agreement between Hyperion and Eyetech to form a "Amiga One Partners" entity. Nothing to determine when the partnership starts and when it ends, what are the obligations of each party to each other, what are the clause of termination, how other contracts can affect the agreement or not, NOTHING. The 2001 agreement does not even explicitly stipulate that the "Amiga One Partners" definition is implicitly appliable to any other contract involving either Hyperion or Eyetech.

That's why I wrote earlier that for me, "Amiga One Partners" is just a name that can be replaced by "Hyperion and Eyetech" when reading the 2001 Agreement. (To my understanding, the word "collectively" from the definition emphasys the fact that each time "Amiga One Partners" is used in an article of the agreement, that article affect BOTH Hyperion and Eyetech, not just Hyperion or Eyetech.) Outside the reading of the 2001 Agreement, the "Amiga One Partners" entity simply has no (legal) existence at all. If the name "Amiga One Partners" was to be used in an other agreement, it would have to be defined again in that agreement (just like "software" would be), or the new agreement would have to explicitely link to the definition from the 2001 Agreement.
That's also why I think that there is no point as to find out if Hyperion without Eyetech still is a "Amiga One Partner". Hyperion is Hyperion, each and all its liabilities are (more or less) clearly written in the 2001 contract.

There is however an issue where the dissmiss of a party (or I should say a signer, to avoid confusion) can affect the ability of an other signer to fulfill his part of the contract. For example: the disapearance of Eyetech has caused the lack of licenced hardware and prevented Hyperion from producing a Amiga One OS4. But that can be deal in court without bringing up a (non-existant) "Amiga One Partners" entity.



There is an interesting claim from AInc. in document #59 which abound in Tigger's theory of a two party contract:
Quote:

IV. HYPERION HAS ADMITTED THAT THE AMIGA ONE PARTNERS PARTNERSHIP IS THE SOLE LICENSEE UNDER SECTION 2.07 A partnership is created whenever two or more persons agree to carry on a business and share profits and ownership control and may be formed regardless of whether the persons entering into the agreement intend to form the partnership entity. RCW 25.05.055(1). “Property acquired by a partnership is property of the partnership and not of the partners individually.” Curley Electric, Inc. v. Bills, 130 Wn.App. 114, 122, 121 P.3d 106, (2005); RCW 25.05.060. Hyperion has previously admitted what appears from the Agreement’s face: Amiga One Partners is the sole licensee under provisions at issue in the Counterclaims, including Section 2.07. (E.g., Dkt. 39, Counterclaims, p. 15 ¶ 37(a)) Hyperion itself has asserted that Eyetech Group Limited (“Eyetech”), the other partner therein, is a necessary party to claims arising from the Agreement, which certainly include Hyperion’s Counterclaims. (Dkt 24. Hyperion Prelim. Inj. Opp. Brief, p. 2:13-16, p. 14:17-25) Thus, Hyperion is estopped to deny the partnership. Moreover, when the Agreement’s drafters intended to give rights or obligations to Hyperion (or Eyetech) individually, they knew how to do so. (See e.g., §§ 2.02, 2.03 (A), (B), (C) and 4.02) If Hyperion’s Cause No. 6 or No. 7 somehow survive this motion, Hyperion should be required to join Eyetech and Amiga One Partners. In their absence, this Court should dismiss Hyperion’s Counterclaims for trademark infringement and dilution and for false designation of origin, which are based on rights allegedly acquired through licenses made expressly to “Amiga One Partners,” not to Hyperion individually and apart from the partnership, whether de jure or de facto.

(embold added by me)

Note the singular in "Amiga One Partners is the sole licensee", just like AInc. (and/or Hyperion) assume a "Amiga One Partners" entity. Again, IMHO, there is no such a thing, and unless a document can be exhibited to prove that there is a signed partnership agreement between Hyperion and Eyetech to form a legal entity, the whole sentence should at least have been written like "Amiga One Partners ARE the sole licensee".

"Hyperion itself has asserted that Eyetech Group Limited (“Eyetech”), the other partner therein, is a necessary party to claims arising from the Agreement"
From the 2001 Agreement:
Quote:

7.12 EFFECT The Agreement shall be binding upon and inure to the benefit of each party hereto, and their successors and assigns. Neither party shall assign or subcontract the whole or any part of this Agreement without the other party's prior written consent.

If there is a doubt as if "Amiga One Partners" is a party (entity) or parties, let's have a look at:
Quote:

6.03 Consequences of Termination. In the event this Agreement is terminated in accordance with article 6.02 hereof, this Agreement shall remain in force with respect to the parties other than the party found to material breach of this Agreement pursuant to article 6.02 hereof. Articles IV, V, VI and VII shall in any event survive termination of this agreement.

(Embold and underline added by me)
This article involved at least 3 parties, thus "Amiga One Partners" (Hyperion and Eyetech) are two parties.

Quote:

7.02 Independent Contractors. In making and performing this Agreement, Amiga and Amiga One Partners act and shall act at all times as independent contractors and nothing contained in this agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between Amiga and the Amiga One Partners. At no time shall either party make commitments or incur any charges or expenses for or in the name of the other party.

"Hyperion should be required to join Eyetech and Amiga One Partners"
Nonsense ! Hyperion should be required to join Eyetech and Hyperion and Eyetech

@Tigger

Quote:

Tigger wrote: @Spectre660 Do you not have a point to make for what you said?? You said McEwen in #35 is in conflict with Johns comments. -Tig

Try PDF 35 page 5. lines 1-8

Last edited by Spectre660 on 25-Nov-2007 at 11:43 PM.

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@AmigaPhil

Well, the problem here is the lack of knowlegde regarding the term "juristic person" of some of the participants in this discussion (and of the persons involved in Amiga Inc.).

There is no juristic person formed by oral agreement or a simple tally on a sheet of paper. A juristic person needs to be formally registered, formally assured by a legal contract and formally entitled to sign contracts in the name of all other parties. There is no other way to form such a person within every capitalistic economy (this is caused by constitutional guarantee of private property in this economies, btw.). So, we have a typical multiple party contract here, no two party contract, as the 2001 contract lacks a contract forming a juristic person of the "AmigaONe partners". Btw. the claims Amiga Inc. mentioned in their response clearly show that they didn´t understand the juristic person construct. Property of a "Partnership" is indeed undividable between the individual partners, but there has to be legally and formally formed such a partnership in advance for such a contract to carry such claims. This didn´t happen here, as the contract concludes the two parties to one for reasons of readability, nothing more. It´s even false to assume such a partnership, if there would be such a clause later on in a contract, if multiple parties were counted as one for readabilty first (that is called "widersprechende und daher sittenwidrige Formulierung einer Vertragsklausel" in Germany, btw.)

And even if we assume that Hyperion signed the 2003 contract illegally (I doubt seriously they did, btw.), the term "AmigaOne partners" still assosiate the two parties Hyperion and Eyetech Ltd., nothing else. No juristic person. The "Personenmehrheit" brought in by umisef is a non juristical construct, its an economical construct, hence no juristic person, hence not entitled to rule about the other party´s property, hence not to be held liable by law as "one party".

I´m really interested in the coming rule of the judge and seeing, who of the discussing folks here is "right". I seriously doubt that e.g. Tigger will be the one.

Regards

@Tigger

Quote:

Tigger wrote: @Spectre660 ... You are saying the Bills comment in #35 is in conflict with the more recent John G comments, I ask why you think that and you come up with a comment I made about #39 months before we heard from John. How about you explain your point instead of not making it. ...

I think he was referring to Bills declaration under oath in front of a court, where he said they were insolvent.

In this .pdf-document he (BillMac) is contradicting himself, I'd say - and only one can be correct - either his sworn statement that they were insolvent or the PDF, where he states the contrary - he can't have it both ways......

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