@Tigger

Quote:

Not at all. Itec paid the money, look at the receipts and the transfers. 20K of it comes directly from Itec and the receipt for $22500 is to Itec.

Again you can't have it both ways. Either it was on behalf of Amiga Delaware or not and then for themselves. You can only get to your close payment but incomplete one due to a supposed clerical error for Amiga Delaware if you include payments from Itec and Tachyon which are confirmed and from Bill McEwen personally (not verified). Itec made its payment attempt for itself only this year in the form of a single check for $25,000, before that they were again only acting in essence as one entity, Itec, Tachyon, Amiga Delaware, Bill McEwen personally, but on behalf of Amiga Delaware to pay towards what the judge in this case calls a "buy-in". Creepy and messy.

Quote:

What do you name the judge who points to two documents (the signed and unsigned Arctic PDA documents and says they contain the 25K buyback clause, when neither one contains the clause or even is about buying OS4.

The kind that quite possibly won't decide as you forsee, (which you fortell without a doubt in your mind). You only admit the human element when he did not do as you predicted. You made a very big deal about your past court predictions on other cases and how it would prove out as well in this case. Then *bam* the judge here dosen't do what you expect. When people tell you that the human element can foul up things you don't want to hear it and stand firm that he was just confused this one time, but will decide in Amiga's favor in the end, because so sayeth you basically. Which has caused your endless circles of talking down to others on this board.

Quote:

Because KMOS are suing over trademarks and the cancellation of the 2001 contract and Itec never owned the 2001 contract or the trademarks.

Thats part of it, but the more tangible thing, the thing they had their lawyers spend their time on in court and for much of what they have submitted in written form in wanting to get the code directly from Hyperion. I linked the transcript a few posts ago, even though you are well familiar with it.

Last edited by fairlanefastback on 17-Nov-2007 at 12:04 AM.
Last edited by fairlanefastback on 17-Nov-2007 at 12:04 AM.
Last edited by fairlanefastback on 17-Nov-2007 at 12:02 AM.
Last edited by fairlanefastback on 17-Nov-2007 at 12:02 AM.

_________________
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Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@stew

Quote:

stew wrote: @fairlanefastback I don't see how the shell game is relevent. I have a 70 Buick GS 455 convertible. I agree to sell it to you for 25,000. Dandy (who looks like he likes cars and can appreciate this gem) buys it from you for 25,000 and sends me the money ( of course counting all those 10's I misscounted. I say he is not an entitled buyer and was short anyway. Dandy complains to you so you send me the full amount. I know the analogy is lame but the point is I don't know who should be the rightful buyer of OS4 but it is not Hyperion, unless. If (this is a big if) they can show the insolvent clause is in effect. The shell game defence is just a red herring.

A couple of problems here in regard to your example.

The whole "buy-in" vs. "buy-out". So far the judge has refered to it as the "buy-in" as Hyperion's lawyers characterize it. That dosen't work well with the car analogy but in this rights on the source code thing its there and has to be dealt with in court.

You actually never paid me the $25,000. You claim you were only $250 short, but you can only show reciepts for thousands less than that. (Bill's wire of money was only a request, they did not show that it was approved or went through). And even if you can show you were $250 short, well you certainly did not pay the agreed to price. Now I should probably refund your money, but I've changed my mind about that Buick GS. Tough luck unfortunately on the car. I'm all for Amiga Delaware getting the money back.

The "shell game" as you put it comes into play with the 2003 agreement I feel. If Itec and Amiga Delaware did not communicate to Hyperion in good faith as to who was taking over what the whole basis of the 2003 Itec contract is questionable IMHO. Bill's deposition testimony from an earlier case seems to support insolvency from my perspective as a layman.

_________________
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Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@Tigger

Quote:

d love you to find a reference where I actually said that, when you can't, we'll add that to the list of apologees you owe me. AROS port to Efika needs to be done at home, I dont post here from home, I dont work on the AROS port at work, clear enough for you?

You've insulted their coding skills and glorified your own when it comes to Amiga coding projects. How else should I interpret it? You're being pretty touchy when we are talking about you. But you are all fire and brimestone when it comes to them. And you have questioned why it took them so long to do stuff, its no different for others to do the same to you. Frankly I actually appreciate you doing that bounty and really don't care if it takes you 6 months. But I do find it funny how long it is taking you given all your talk in the past about other coders.

Quote:

I think everyone who is upset with me saying the judge was confused needs to explain to us why they dont think he was when he put that in his response.

I have yet to see a single person who was upset that you called the judge "confused". Nice try at a twist there. No I think anyone who said anything that I saw tried to tell you that since he is a human like everyone else there is no such thing as a certainty in predicting all this. People were chuckling at you because you had to say something when your prediction was wrong and how you used "confused". Whether he misread something or not was never the point. The point was that you insisted before and oddly still insisted after that you definately are the one who is going to have the correct prediction on the outcome of this, and the judges decisions in-between, with all of your talk in absolutes.

_________________
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Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
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@AmigaHeretic

Quote:

It just fun watching the stories change

From Amiga and Itec? Or from Tigger? Or from Amiga, Itec, and Tigger? LOL

Last edited by fairlanefastback on 17-Nov-2007 at 12:34 AM.

_________________
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Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@Spectre660

Quote:

Spectre660 wrote: The key word that you missed was COMPLETED.

I have no idea what you mean by that comment.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Derfs

Quote:

@Spectre660 how would you hide the fact lots of amiga one owners are using it then.

below is the question that I asked.


Where in the 2003 ITEC agreement does it say that Hyperion should hand over a COMPLETED OS4.0 to ITEC ?

Or to ask in another way:

Why could Hyperion not just hand Itec some half done code from 2003 and say here is OS4.0 ?

Last edited by Spectre660 on 17-Nov-2007 at 01:35 AM.

_________________
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@Spectre660

Quote:

Why could Hyperion not just hand Itec some half done code from 2003 and say here is OS4.0 ?

Itec's lawyers would (and do) argue that the "in accordance with the 2001 contract" of the 2003 one refers solely to the "handing over" by Hyperion; I.e. according to Itec's lawyers, the 2003 contract clarifies that the deliverables are the same as those of the 2001 contract, without otherwise incorporating the 2001 contract. And looking at the language of the 2003 one, they probably have a point.

However, I personally find the 2001 contract to be extremely poor; One aspect of that is that while it has an appendix which could be construed to detail what the deliverables are, there is nothing dealing with what happens if Hyperion loses "all interest and title" before even finishing, despite such an event being explicitly contemplated. So while I think Itec might have a valid claim on 2001-contract-equivalent deliverables, I fear there will be disagreement over what those deliverables actually are.

Not that it matters, of course. Handing over half-done 2003 code, or handing over mostly-done 2007 code, either way Hyperion would find itself unable to continue developing or marketing OS4, seeing as they would lack the licenses to the IP it was derived from. And AI, let's be honest, couldn't develop or market OS4 one way or the other, either, because that would require actually knowing what an OS (or a market, for that matter) is, and does --- and if AI have demonstrated one thing in the past, it's that they are utterly clueless in either regard.

@fairlanefastback

Quote:

fairlanefastback wrote: @stew A couple of problems here in regard to your example. The whole "buy-in" vs. "buy-out". So far the judge has refered to it as the "buy-in" as Hyperion's lawyers characterize it. That dosen't work well with the car analogy but in this rights on the source code thing its there and has to be dealt with in court. You actually never paid me the $25,000. You claim you were only $250 short, but you can only show reciepts for thousands less than that. (Bill's wire of money was only a request, they did not show that it was approved or went through). And even if you can show you were $250 short, well you certainly did not pay the agreed to price. Now I should probably refund your money, but I've changed my mind about that Buick GS. Tough luck unfortunately on the car. I'm all for Amiga Delaware getting the money back. The "shell game" as you put it comes into play with the 2003 agreement I feel. If Itec and Amiga Delaware did not communicate to Hyperion in good faith as to who was taking over what the whole basis of the 2003 Itec contract is questionable IMHO. Bill's deposition testimony from an earlier case seems to support insolvency from my perspective as a layman.

It does not matter what you call it (buy out , buy in), there is an option spelled out in the contract that was exersized. It put Hyperion under certain obligation. We knowthese were understood by the parties involved because we have their public statements on the matter at the time. Those obligation have yet to be met. If they are unmet because of another clause in the contract (insolveny), fine. The shell game does not look like a clause in the contract.

If I mistakenly gave you a reciept for the full amount whose fault is that. It was Hyperion's clerical error. When the error is discovered I would hope you would pay me the full amount, and if you were taking a tax deduction you would have to have reciepts for the full amount, but as far as me keeping the car, you have a reciept from me for the full amount it is yours.

Again you miss the main point. The point is Hyperion agreed to a transfer of code ect. for the sum of 25,000. It has been paid by their own accounting and have yet to deliver. Unless the "insolveny" can save them they need to deliver to someone!

@umisef

Quote:

umisef wrote: @Dandy Quote: As you can see from the links above, we have certain legal requirements for Joint Venture Contracts in place. The word you are looking for is not "Joint Venture", but rather "Personenmehrheit" ...

No.
I was looking for a word describing the form of collaboration between companies - like in the Hyperion/Eyetech relationship.

Quote:

umisef wrote: ... Quote: If one of these basic and legally required things is missing in the contract, the contract will be declared null and void if it comes to court... You seem to be under the mistaken impression that the "default" or "fallback" solution is to declare contracts null and void. That is not so. The first rule in the case of "missing" clauses is to determine what the parties intended , ...

No.
I was talking about the contractual situation here in Germany in general - not about the Amiga/Hyperion case at court in the US...

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

Wishful thinking Smoke & Mirrors festival 2007 soon will continue into 2008. . . . .

What I want or don't want to happen is irrelevant. For those out their who believe OS4 and Hyperion will come out of this and continue on (without resolving this out of court) and that Hyperion will win the case, I offer my sympathies (it's wishful thinking).

Buy-in is how the judge seems to view it right now. But buy-in will require Hyperion to turn over the code (copy & copies of all contracts with third parties) . . . Without a valid standing contract for use of the IP, Hyperion with or without an OS has nothing.

Technically, OS4 and the Amiga community as it relates to Hyperion and the Penti Crowd is dead. Any hope for a future lies in the hands of whoever gets to buy the OS from Penti and has financial backing and ingenuity to market it. . . But who

For now, if their is hope for the Amiga community, MorphOS and AROS are what we have, and well, we don't have that either. MorphOS 2.0 has yet to be released. And hardware for it is available but in limited supply. Hopefully the MOS team has other angles for other hardware. AROS is years away from being as useful as MOS 1.4 or OS4 is now from the OS standpoint.

So, enjoy the show, and hey, stop hogging that popcorn . . .

Bottom line . . All this bickering back and forth is pointless.

_________________
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@stew

Quote:

If I mistakenly gave you a reciept for the full amount whose fault is that. It was Hyperion's clerical error. When the error is discovered I would hope you would pay me the full amount, and if you were taking a tax deduction you would have to have reciepts for the full amount, but as far as me keeping the car, you have a reciept from me for the full amount it is yours.

but as far as me keeping the car, you have a reciept from me for the full amount it is yours


That's the difference there and the flaw in the argument. Possesion is 9/10th of the law. The "car" was never handed over yet.

I think you are right if they had given them the code then Hyperion would be out the $2500 or whatever the amount is and would just have to hope they got paid (or they could try to sue to get the amount citing the clerical error).

But, the opposite is also true, since the "car" was never given. Yeah, you do have a receipt for the full amount, but if you went to court and tried have the care taken by force, then the opposite would hapen, and the seller would say, hey yeah we gave a reciept for full amount but that was a clerical error sorry, they still owe us $2500 and haven't paid. And you wouldn't be given the vehicle until you paid the full amount you had agreed to. i.e. No free lunch. (In the AI case it would be too late because of the 6 month clause -- and yes it's been more then 6 months since Itec/KMOS/AI has known they shorted the money even after the incorrect reciept.)

Last edited by AmigaHeretic on 17-Nov-2007 at 06:35 AM.

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---------------------------------------------------------------------------
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@wolfe

Quote:

wolfe wrote: . . . Bottom line . . All this bickering back and forth is pointless.

But it's soooooooooo much fun...

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: I know KMOS claim to be the owner of OS4 - but I was not aware that they bought the 2001 contract. Can you point me to when and how this did happen? The KMOS buyout of all Amiga products from Amino (then known as AI) is worded to include all contracts, trademarks, etc for any and all Amiga products, so it gets them the contracts. ...

Yeah - but can you please provide a link to when and how this did happen?

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

I didn't fully understand that ITEC had to pay for the OS at all, if your claim that they are the "first secured creditor" of AInc (W/Amino) is correct?

I mean - if they took OS4 as compensation for the debts AInc (W/AMINO) had with them - then WHY should they pay money on top of that to somebody?

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@AmigaHeretic

Thanks for story i thing that story put things in perspective.

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@umisef

Quote:

Itec's lawyers would (and do) argue that the "in accordance with the 2001 contract" of the 2003 one refers solely to the "handing over" by Hyperion; I.e. according to Itec's lawyers, the 2003 contract clarifies that the deliverables are the same as those of the 2001 contract, without otherwise incorporating the 2001 contract. And looking at the language of the 2003 one, they probably have a point. However, I personally find the 2001 contract to be extremely poor; One aspect of that is that while it has an appendix which could be construed to detail what the deliverables are, there is nothing dealing with what happens if Hyperion loses "all interest and title" before even finishing, despite such an event being explicitly contemplated. So while I think Itec might have a valid claim on 2001-contract-equivalent deliverables, I fear there will be disagreement over what those deliverables actually are.

Thank you for this reply.

Exactly my point.
On receipt of a "full" US$25,0000 from Amiga(W), Hyperion would have had the option to hand over the code base done up to the full payment and quit OS4.0 development.


The original relationship between KMOS and Hyperion had Hyperion's rights and obligations under the 2001 contracr intact.

Last edited by Spectre660 on 17-Nov-2007 at 12:35 PM.

_________________
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@wolfe

Quote:

What I want or don't want to happen is irrelevant. For those out their who believe OS4 and Hyperion will come out of this and continue on (without resolving this out of court) and that Hyperion will win the case, I offer my sympathies (it's wishful thinking).

If your read all the documents in the AMIGA(W) vs Hyperion, You may see were ITEC are disputing claims made by AMIGA(D).
A dangerous game for both Amiga(D) and ITEC.

Note that one of the reasons Hyperion wanted ITEC Joined in
the Washington suit was because of
"the now-apparent dispute between Itec,LLc and Amiga Delaware" .
(from pdf no 41 page 2.line 11)

Last edited by Spectre660 on 17-Nov-2007 at 01:16 PM.
Last edited by Spectre660 on 17-Nov-2007 at 01:05 PM.

_________________
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@AmigaHeretic

Quote:

Besides, is it any more crazy than you posting 100+ times how Hyperion is going to lose AmigaOS4 to KMOS even when you say NOW that KMOS doesn't even have a contract to AmigaOS4 with Hyperion? KMOS bought OS from ITEC??

I've always said that KMOS bought the OS from Itec, since 2004, Garry Hare said the very same thing on his interview on this site. Thats never been a dispute, the interesting thing from the new Itec documents is that Itec never owned the 2001 document, the trademarks we've known about for years.

Quote:

I'm pretty sure that's your story today and --- of course now you say the AI(d) vs Hyperion is "about the trademarks" which really is never mentioned in court but only OS4 code and sources. And all you talked about before in the other threads was Hyperion having to hand what they had over to AI(d). But hey spin it however.

Thats been my story since 2004 and you really need to reread document #1 on the case, if you dont think Trademarks are the primary issue on the case. Itec bought the OS from Hyperion in the March 2003 contract, Itec sold the OS to KMOS in October of 2003. Go back to the 2004 shell game timeline I did, thats all there.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@fairlanefastback

Quote:

fairlanefastback wrote: Again you can't have it both ways. Either it was on behalf of Amiga Delaware or not and then for themselves. You can only get to your close payment but incomplete one due to a supposed clerical error for Amiga Delaware if you include payments from Itec and Tachyon which are confirmed and from Bill McEwen personally (not verified). Itec made its payment attempt for itself only this year in the form of a single check for $25,000, before that they were again only acting in essence as one entity, Itec, Tachyon, Amiga Delaware, Bill McEwen personally, but on behalf of Amiga Delaware to pay towards what the judge in this case calls a "buy-in".

I'm not trying to have it both ways. Itec bought the OS in March of 2003, KMOS didnt even exist in March of 2003. Why do you think Itec bought the OS for Amiga Delaware (ie KMOS) when KMOS didnt even exist as a company in March of 2003, I surely never said that. The clerical error was by HYPERION, they sent receipts for more money then they recieved. If you have a receipts for all the money you owe, you would probably think you had paid in full.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Quote:

Itec bought the OS from Hyperion in the March 2003 contract, Itec sold the OS to KMOS in October of 2003.

Where were Amiga(W) rights to the OS from the 2001 Agreement
during all of this ?

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