... (Also, pedantic correction iknow, but "there" should be "their" - pet hate of mine, and makes translation difficult for international readers). ...
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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)
Joined: 19-Jun-2005 Posts: 1714
From: Melbourne, Australia
@Boot_WB
Quote:
You seem to speak with authority regarding Amiga Inc's intentions when cancelling negotiations.
How about "AI were in no position to negotiate a deal, because they did not have what Acube wanted; This despite AI feeling that they *should* have had what Acube wanted". No intent required; That simple fact will kill any negotiation quite promptly.
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the date of "finishing" the OS is under contention.
Come on --- would you really like to explain the difference between "Done" and "Completed" to a judge? Because it was "Done" (and announced with a big "It's Done" news item) on December 24th, 2006. Pretty much up to that day, the main OS4 developers themselves were posting "When it's done". Sure, in mid-2004 Hyperion stated that things should be completed by year's end. They made essentially the same statements in mid-2002, mid-2003, mid-2005 and mid-2006.And even deep in 2007, we have Hans-Joerg talking about things he will look at once the official release has been finished.
And if you still don't feel too embarrassed to make such a Clintonesque argument regarding "Done" and "Completed" (and remember, Hyperion is a foreign corporation, not POTUS, so don't expect the same willingness to believe a ridiculous argument), then you still need to explain away why Hyperion failed to pay the 3rd party contributors who had "pay at completion" or "pay at release" clauses in their contracts.
And *then* you have to explain why in 2006, Hyperion themselves (when asked to provide what AI paid for) did not actually mention anything about having completed things more than a year ago, and thus owning all rights.
And even if you are willing to do all that (and you'd be a braver lawyer than I'd ever be to try that), it would still be worthless, because the only benefit of the earlier "completion date" is the "must release a new version, or else" clause --- and AI can simply point at the lack of any code delivered to them and say "so how were we supposed to do this?". And as even Hyperion's lawyers are fond of pointing out, you don't get to use penalty clauses in your favour if the penalty situation arose because of your own wrong-doing.
The "we completed it in 2004" line of defense is ludicrous; Using it smacks of desperation.
Quote:
Strange then [...] that Amiga Inc lawyers would not use this in their defense, and that Hyperion lawyers would continue to use this as a major plank in their rebuttal of Amiga Incs claims.
Uhm, Amiga Inc lawyers have not mounted any sort of defense. AI are the plaintiff, remember? Also, AI rebut the whole "it's our's, you guys went broke!" line of defense by simply stating "No, we did not". And now Hyperion went and made that an affirmative defense, meaning that they in fact accepted the burden of proof (which, to be fair, probably was on them, anyway, regarding this point). So all AI has to do is to sit back and watch Hyperion's lawyers scramble. AI would be insane to say "but, your Honour, this clause is not valid, anyway". Because that (a) would imply that it might matter whether the clause was valid or not, which further implies an admission that they might indeed have been broke, and (b) would not be in Amiga (Delaware)'s interest, anyway, because *if* Amiga (Washington) were broke at any relevant time, then the transfer from AI(W) to Itec might be found to have been fraudulent (something Hyperion's lawyers now argue), and while the rights are unlikely to end up with Hyperion (invalid insolvency clause), they are just as unlikely to end up with AI(D) (fraudulent transfer), although they still might (due to Itec being first secured creditor in the first place). Oh, and (c) it's probably frowned upon to put a clause in a contract that you know won't be enforcable, so stating such knowledge would be unwise.
That's AI's side taken care of. As for why Hyperion uses it in their defense --- well, it may sound harsh, but weak as it is, it's pretty much the second best they got (the best being that Eyetech failed to agree to transfers, which I suspect does not hold a lot of water in a case between AI and Hyperion, and given that Hyperion happily dealt with the transferees themselves).
BTW, I strongly suspect that the "April 2003" transfer to Itec was something cooked up by Ben Hermans in roughly October 2003 (when AI was going down down down in Genesi's case against them, and McBill had recently given sworn testimony that they were reduced to $100 in the bank, plus assets consisting mainly of trademarks and OS ownership) in order to move the OS assets beyond the reach of that case --- for which it would have needed backdating (because apparently courts can roll back anything within the last half year when it comes to winding up a company due to bankruptcy). And presumably the signed "April 2003" contract between Itec and tird party Hyperion would have been set up as a corroborating piece of evidence to rebut any "you backdated that" claims. Which would leave both sides in an interesting dilemma; Hyperion would love to shout from the rooftops "We *KNOW* the transfer was fraudulent; We backdated that contract!", whereas Amiga wants to shout "You *KNEW* exactly the state AI(W) were in, that's why we backdated things to move them away, remember?", and yet neither side can actually do it, because they would implicate themselves in fraud. So this strikes me as an interesting game of chicken being played right now --- "how far can we go in our defense before we screw both sides"; I expect things to heat up a lot once one side realises they are going to lose, anyway :)
(Oh, and as for why I don't believe that this stuff actually happened in April 2003 --- go back and re-read the statements the various parties made during the second half of 2003; Both McBill and Ben Hermans very clearly referred to AI(W) as the owner of those rights, long after they were supposedly sold and after Hyperion supposedly made a new contract with the new owners).
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