@jorkany

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jorkany wrote: @Tigger Quote: The ACK boards are basically COTS boards, so its not that interesting to talk about, you can find them on a couple of different webpages. I was wondering how you came to this conclusion. Did you just do a search for the specs ACK has posted and found some boards that matched? Do you have a URL or a seller/manufacturer name to toss out here? I know it's all academic, but still... In one of the forums I ran across a picture of a board that someone said was the board ACK was going to use, darned if I can find it now though.

At least the 'high end' looks like the PA Semi eval board, with the 'loss' of 2x PCIE lanes due to SATA being added. Haven't dug on PA Semi's site, but it should be in there somewhere..

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Are we not done with the same silly arguments and flames yet??!

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Spectre660 wrote: @Tigger re claim of failure to release OS4.0 . is this claim justified in November 2006 in view of the then hardware options available for a release of OS 4.0 ? What would the target market been at this point ?. and if it has not been released how can Hyperion sell it for the range of product Amiga inc claim that Hyperion advertise it for ?.

They list 5 reasons
a) Failure to deliver by March 1, 2002.

Ben was dumb enough to put that into the contract, it makes it look bad when Hyperion is claiming in November of 2006, that they have yet to ship the final OS 4.0.

b) Failure to release OS 4.0.

Again, basically Hyperion didnt release the OS until AI cancelled the contract. They put this in, in case Hyperion blamed Eyetech or AI for them missing March 1, 2002. (ie a).

c) Failure to turn over source code

Hyperion really blew this one, they should have turned something over, then the judge might not be able to decide whether that was enough, also there wouldnt be a possibility of penalites for this violation. Instead they sent nothing and the judge is going to look at the receipts and the contracts and ask for them to turn everything over.

d) marketing OS 4.0 beyond the market for the Target Hardware

Lots of examples of this including the particular phase of we are going to use it as an embedded OS stuff we argued about for a long time. I shipped more embedded Amiga products then anyone else with the possible exception of Taberate and I'm sorry but OS 4.0 cant play in a modern embedded environment.

e) Failure to use Best Efforts to secure rights.

Given the recent Exec SG is owned by the Frieden brothers stance, with no other example, I'd agree with AI on this, and there are unfortunately for Hyperion, other examples.

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Also if KMOS bought the OS4.0 rights from ITEC in 2004 as the were then how can they complain now when things were already 3 years overdue at the time they stepped into the picture ?

They came on the scene, bought everything they wanted for there new direction and Hyperion wont deliver the product they bought, they've been in negotiations for over a year now we can see from the March 2006 emails and instead of Hyperion and them getting closer to a resolution, we have Hyperion poaching a customer (ie Acube) and illegally using AI's trademarks, they are going to come hard at Hyperion, and I doubt they survive the court battle.
-Tig

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

@Tigger

Can anyone really be so stupid as Hyperion appear to be ?. or must they think that they have a hole card ?

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The language in the following 22 July 2005 Hyperion press release is interesting.
notice they refer to "Registered OS 4.0 "Users". hmm

http://www.hyperion-entertainment.biz:8080/news/2005-07-22

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@Tigger

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I'm sorry but OS 4.0 cant play in a modern embedded environment.

Why not, I'd have thought that at the very least Hollywood would be suitable for information kiosks.

@T_Power

Which countries laws are you talking about though?

You guys are forgeting that the original statement by the folks at the original "Amiga Inc." It was even on 20 questions and the website.

It stated that Amiga will not sell OS4 without the purchase of a motherboard. The reality that people who have AmigaOne computers were given the pre-release shows good faith that they had delivered and OS. One of the clauses in Amiga's license is they wouldn't sell an OS license without hardware. With no hardware available at the time of the required release date, it would have been impossible anyway. If what I read is true the hardware had dried up and no further production runs were made of Eyetech on the proposed release date. So that would put them in default for something that really isn't their problem, it was a problem between Amiga Inc. and Eyetech.

If the other parties aren't delievering on the contract first they are in default, and it's the licensors responsibility to make sure hardware is deliverable. You can't blame the software maker for that. To me it sounds like certain parties are trying to take advantage of this situation to get control back of an OS they NEVER created nor had the expertise to create themselves.

To me there are some serious business ethics issues going on here and probably the reason that community in another post is choosing Hyperion and their choice by about 70%.. I can only hope the licensor decides to ignore short term profits and do the right thing and work with the other parties involved instead of litigation.

It's pretty much a choice the licensor has to make. Ignore the issues with short term profit and work with the people you decided to do business with even if it's not in the short term best interest, or have the community not side with you and percieve you as the villian, not the victim. Thereby shooting one's self in the foot again and losing out.

It's pretty obvious to me the choices going through folks minds here. It's a choice of doing what you know feels right in your heart and winning one with the community or ignoring things for short term goals, winning the battle but not the war. Sounds kinda like what's happening in other places in the USA today too on a national level.

I wish a certain licensor would take a risk and trust their business partners for once and not resort to litigation..

@Spectre660

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Can anyone really be so stupid as Hyperion appear to be ?. or must they think that they have a hole card ?

Hm... if you compare the level of detail each side uses in their reactions, resp, here, then IMO one side looks very professional to me. Which side might that be ? Doesn't start with an H.
I agree with Tigger, that whole thing will ruin Hyperion, I can't see how they can win a case - far away from home without knowing the local jurisdiction and not even being able to prepare evidence in their response. That's a shame. Again, IMO, it was a gamble and they should admit the risked too much. Sad, but IMO that's the case. The longer this thing takes, the more one can loose, especially Hyperion (except they have a billion$ investor we don't know about yet).

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@Jorge

Any chance of Gary Hare being a witness for either side ?

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Spectre660 wrote: @Tigger Can anyone really be so stupid as Hyperion appear to be ?. or must they think that they have a hole card ?

I cant imagine doing what they have done so far as rational so irrational behavior seems to be norm for them. I mean why sign up to that contract, moreover, why did Ben write the contract that way. If there is a signed version of the Arctic contract around (and I've been told privately there is), they are in trouble twice, as they have agreed in two different contracts to deliver a product they havent deliverd. Ben has argued for years that when AI goes bankrupt, we will own the OS, he really believed that, I pointed out that according to US Bankruptcy law he wouldnt and eventually he started arguing that Hyperion would outbid everyone at the bankruptcy auction. This contract was leaked well over a year ago, and universally laughed at, and all the fans of Hyperion told us thats not the real contract, etc. Now we know its completely the real contract, and that Ben and company agreed to port the OS to PPC for 25K and said they could do it in 5 months. We also have found out that McEwen was telling the truth when he said they had bought back the OS, something I have trouble believing Rogue didnt know when he answered the question about it. When Ben was talking at Amiwest in 2003, he'd already been paid for the OS, and yet was going on and on about Hyperions future with OS 4.0, what was that motive?
-Tig

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

@Tigger

If even some of this conjecture about Hyperion's legal stupidity is correct then the OS4.0 dream is dead. This OS will be so completely useless and without any potential customers (save a few hobby geeks) by the time it is released with new hardware, that I expect Amiga Inc will shelve it indefinately and go back mobile games

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John Lasseter, Co-Founder of Pixar Animation Studios

@Rob

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Rob wrote: @Tigger Quote: I'm sorry but OS 4.0 cant play in a modern embedded environment. Why not, I'd have thought that at the very least Hollywood would be suitable for information kiosks.

The hardware it runs on is expensive (ACK/Samantha). Tools are lacking, and sure Hollywood is cool, but you are going to have to write touchscreen drivers, button drivers, coin op, etc. Or for cheaper you can buy a ready to go kiosk with most of that already included. I wrote all those drivers for the A500+, for those machines Kermit has on his website, I think the OS is behind its competition (Green Hills, WindRiver, QNX, WinCE, Palm, etc) and the few platforms it runs on are more expensive then the competion (Plus the OS is likely more expensive then the competition).
-Tig

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DonnieA2 wrote: It stated that Amiga will not sell OS4 without the purchase of a motherboard. The reality that people who have AmigaOne computers were given the pre-release shows good faith that they had delivered and OS. One of the clauses in Amiga's license is they wouldn't sell an OS license without hardware. With no hardware available at the time of the required release date, it would have been impossible anyway. If what I read is true the hardware had dried up and no further production runs were made of Eyetech on the proposed release date. So that would put them in default for something that really isn't their problem, it was a problem between Amiga Inc. and Eyetech.

First of all, OS4 could be sold to the classic amigas with PPC cards without the purchase of new hardware according to the contract. Second of all, AI bought the OS back in April of 2003, there was plenty of hardware available at that point, this is where Hyperion messed up, they should have shipped a CD to AI at this point and then negotiated for more money for addons, instead of refusing to ship what AI had bought from Hyperion. Third, Eyetech was brought into the deal by Hyperion, they picked them, they made them there hardware partner, and AmigaOnes were available until April or May of 2005, (after that the boards that appeared have a more interesting pedigree). By that time, Hyperion had not only not shipped the code under the April 24, 2003 agreement but also had been paid more money under the Arctic software agreement and also not shipped the software according to that agreement. There is no reason for AI to help Hyperion who has had AI pay twice for OS 4.0 to be delivered and have yet to receive a line of code.

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If the other parties aren't delievering on the contract first they are in default, and it's the licensors responsibility to make sure hardware is deliverable. You can't blame the software maker for that. To me it sounds like certain parties are trying to take advantage of this situation to get control back of an OS they NEVER created nor had the expertise to create themselves.

You keep glossing over that AI bought back the OS according to the terms of the contract in April of 2003. After buying it back and not receiving anything, its silly to say that two years later AI should be working hard to find a new hardware vendor for Hyperion. What does Hyperion need a hardware vendor for? They have sold the OS.

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I wish a certain licensor would take a risk and trust their business partners for once and not resort to litigation..

Four years ago, AI bought back the OS, Ben Hermans signed the bill of sale, I think after 4 years if your business partner hasnt delivered yet, is poaching your clients and illegally using your trademarks, its time to take them to court, and I hope the judge throws the book at Hyperion.
-Tig

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@Spectre660

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Spectre660 wrote: @Jorge Any chance of Gary Hare being a witness for either side ?

Oh I think there is a good chance that Garry Hare will show up.
-Tig

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

@Tigger

It's funny how you still seem to be unable to seperate facts from fiction. Regardless of how much you want to ignore them:

Fact #1: Amiga Inc. signed the contract in which they have acknowledged that Hyperion will use independent contractors for development, who may provide only object code license to Hyperion. It is quite clear in the contract that the $25k buy-back does not mean getting all source code of OS4, regardless of how much Amiga Inc. would like to "have it all" for $25k, they are not entitled to it according to the contract.

Fact #2: Amiga Inc. failed to provide Hyperion with the 3.5/3.9 sources to Hyperion for development, as agreed in the contract.

Fact #3: Amiga Inc. failed to provide evidence to the court that they indeed did pay the full amount for the buy-back when the buyback contract was signed with Hyperion. You claim over and over again that it was paid, yet we have seen no concrete evidence that this is really the case.

Your conclusions are based on too many assumptions (assumptions that everything Amiga Inc. says/claims is 100% correct), therefore I still recommend that you, and everyone else just wait for the case to unfold.

@COBRA

You fail to understand that AI sued Hyperion, not the other way round. If they can construct a counter case with all the shortcomings AI did, well, OK. But that would be another case. For the solely purpose of this motion, I think it will be useless, though. I hardly believe it will help them.

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COBRA wrote: [quote] Fact #1: Amiga Inc. signed the contract in which they have acknowledged that Hyperion will use independent contractors for development, who may provide only object code license to Hyperion. It is quite clear in the contract that the $25k buy-back does not mean getting all source code of OS4, regardless of how much Amiga Inc. would like to "have it all" for $25k, they are not entitled to it according to the contract.

Now you are back to ignoring what we are talking about. Hyperion has shipped nothing to AI, you and I disagree how much and what should be supplied, but after 4 years, even you realize that something should have been given to AI for the 25K buyback clause, AI says they havent shipped anything, Hyperion has said the same.

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Fact #2: Amiga Inc. failed to provide Hyperion with the 3.5/3.9 sources to Hyperion for development, as agreed in the contract.

Doesn't matter. If Hyperion had objected to selling the code at the agreed upon price in April of 2003, I might have even agreed with them because of the lack of some sources, however Hyperion signed the Bill of Sale at that time, so using it as a reason for not delivering the OS 4.0 source isnt going to work.

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Fact #3: Amiga Inc. failed to provide evidence to the court that they indeed did pay the full amount for the buy-back when the buyback contract was signed with Hyperion. You claim over and over again that it was paid, yet we have seen no concrete evidence that this is really the case.

AI has said multiple times in there deposition that they have paid the amount (plus additional money). AI has provided receipts for a substantial portion of the money. By law, unless and until Hyperion disagrees that AI paid the money as stated, AI does not have to prove it in a court of law by providing any more reciepts. Again your entire Hyperion can win this scenario seems to be based on hoping AI didnt pay the entire $25K. Do you honestly believe that AI would bring this case to court without being real sure they paid all the money. The first set of documents the lawyers prepared cost more then the $2500 or so you think that AI could still owe Hyperion.

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Your conclusions are based on too many assumptions (assumptions that everything Amiga Inc. says/claims is 100% correct), therefore I still recommend that you, and everyone else just wait for the case to unfold.

My conclusions are based on everything I know about the two companies, and the official documents we have been provided so far. The problem is that you seem to be arguing that there is some secret documents that will turn this all around. We know there isnt a new contract before April of 2003, because of the 2003 agreement. At that point AI bought back the OS, most of AIs case, is please give us what we bought. Its hard to argue they are wrong on that. How many people working on OS4 do you think knew that Hyperion had sold the OS in April of 2003.
-Tig

Last edited by Tigger on 15-May-2007 at 10:18 PM.

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@BigD

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If even some of this conjecture about Hyperion's legal stupidity is correct then the OS4.0 dream is dead. This OS will be so completely useless and without any potential customers (save a few hobby geeks) by the time it is released with new hardware, that I expect Amiga Inc will shelve it indefinately and go back mobile games

Still trying to be the optimist, I don't think all is lost - yet. I think that whole thing is a shocking event, but with so many other things, it takes time to swallow and to digest.

Well, even if AI would win, and it seems they invest money to do so, they will consider that an investment. Nobody fights for IP - which you actually own - just to let it die. I still want to believe it is even in AIs interest to release HW, but obviously, they want that credit for what they have paid for (BTW: even if some people think they didn't do a lot for the OS4 development, they invested a couple of $M to buy out the IP from GW2000...nobody in the whole "community" did invest that much money yet - maybe it is easily forgotten). While others might have invested parts of their lives (which is a huge commitment, too), investing that money is also part of the whole picture.

Now, well, say they win, they really want to release something, they also will need to support it (and I guess they will take it serious - simply if not, they will be back in court pretty quickly - after all that #### going on). But, well, there's the chance for developers, too. I'd like to know how much Hyperion payed for developing OS4. Seriously. At least now there is a chance to get some money working for a company which seems to be able to pay some lawers, at least. Eventually you'll put your money where the mouth is. We can discuss the moral reasons up and down. But at the end of the day, you gotta buy food.

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@Tigger

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Now you are back to ignoring what we are talking about. Hyperion has shipped nothing to AI, you and I disagree how much and what should be supplied, but after 4 years, even you realize that something should have been given to AI for the 25K buyback

Again, you assume that the $25k was paid in full, which we have seen no proof of. But in case they did pay the $25k, do you have proof that Hyperion did not deliver the work in the form of object codes?

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AI has said multiple times in there deposition that they have paid the amount (plus additional money).

LOL, so if "AI said" then it must be so? What an objective view

Until we have seen proof that something was really done as claimed, your assumptions are nothing more but thin air I'm afraid.

@Tigger

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Hyperion has shipped nothing to AI

Well maybe not the source or object code for the desktop versions, but they must have at least shipped the Arctic binaries.

The "elsewhere" that Gary mentions is obviously the Arctic reference platform, and he's speaking in the context of having it running in his own hands.

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Do I have AmigaOS 4.0, do I have an Amiga computer, do I know how to turn it on? And, if I have it, what do I think of it? Yes I have OS 4 running on an Amiga and elsewhere (that ought to start a new thread). As an aside it was pretty difficult for us to get delivery in the US., even after pre-paying. I have brought this issue to Eyetech. I turned it on all by myself and am currently figuring out how to turn it off.

In providing at least the binaries for the Arctic reference platform, Hyperion gave the KMOS something very substantial to show IBM.

Of this matters little since the buyback clause was executed, which is the main contention here.