@SpaceDruid

You are right, we're just going around in circles and the whole discussion is pointless, so let's drop it and just wait for Hyperion's response now.

(sorry if I bring into discussion things that have already been said)

I'm not a lawyer, so I'd like to ask whether the various property change of the OS and/or of the company (AInc) who originally signed the 2001 agreement might render the latter void and null.

I would also like to know what you think about section 2.06, where it says Amiga hereby acknoledges and accept that some third parties may only grant an Object Code license or may otherwise restrict the rights granted to Hyperion.

Maybe this is what Hyperion's lawyers rely on to claim the buyback option hasn't actually been executed (not completely at least, for example I understand ExecSG is owned by the Friedens, and so on)

@COBRA

> You are right, we're just going around in circles and the whole discussion is pointless, so let's drop it and just wait for Hyperion's response now.

Dude, I already sad that: http://amigaworld.net/modules/newbb/viewtopic.php?topic_id=23079&forum=2 -- are you trying to go in cirlces again?

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Nicolas Mendoza

lets look at some issues in the agreement.

Amiga INC #1 state that they control all rights, authorship ,IP etc of Amiga OS up to 3.9.
Also that any third parties involved had assigned entire rights and interest to AMIGA
They undertake to provide Hyperion with all sources Code and documentation to carry out the agreement.

Also both parties Amiga INC #1 and Hyperion are required to promptly notify the other party of any actions brought or claims asserted whose outcome may affect the rights to each other involving the agreement.

Amiga INC #1 are then apparently unable to provide 3.9 sources.
Reason ?. Dispute with another party (H & P) ?.
Were Amiga inc #1 in complete control of their IP when they signed the contract ?

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@Spectre660

Yea, but as Tig pointed out, it would probably have been Hyperion's obligation to complain about this at a much earlier point - their documents will show if they did something like that.

@Tigger

If you have time you may want to take a look at this. from a different industry but pins down some issues of corporate succession.

www.goodwinprocter.com/getfile.aspx?filepath=/Files/publications/EEA_Bestfoods_12_05.pdf

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@Spectre660

Quote:

Spectre660 wrote: @Tigger If you have time you may want to take a look at this. from a different industry but pins down some issues of corporate succession. www.goodwinprocter.com/getfile.aspx?filepath=/Files/publications/EEA_Bestfoods_12_05.pdf

Very familiar with that case, though thats a better writeup then I have seen previously. Its the case I usually use to show that AI #2 probably hasnt shed its debt with what I coined a shell game several years, AI-Itec-Kmos-AI#2, its a case about liabilities, you cant shed them all by selling all your contracts and assets and then folding the company (which is pretty close to what happened with AI. Mr McEwen once again leading AI is another great example of this case being a good case to use if you are trying to collect money from AI. I cant see how that can help Hyperion, unless there are liabilities of AI owed to Hyperion before the 2003 sale that Ben wasnt smart enough to include in the sale document of April 24, 2003. Thats the 800 lb gorilla in this case (the arctic case if there is a signed copy is equally damaging) these are signed contracts that show Hyperion didnt think that AI had financially hurt them when the signed them, they fact they signed a contract first with Itec and then with KMOS hurts any arguement that Itec and then KMOS were legal successors. They've kind of built themselves into a box, and I'm not sure what they could show that could function as a boxcutter.
-Tig

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

@Tigger

Quote:

They sent Hyperion $8,850 in November to clear up any possible misunderstanding about them having paid the full amount, which apparently is a number Ben gave them as a sum still owed for the buyback.

I don't think its been made definitively clear if these other monies were for the buyback, or for other services rendered.

Quote:

I dont think 3 people (one a lawyer) are willing to go to jail to lie about whether they paid $2500

Conjecture either way, but if one wanted to its just as feasible to remember the only having $100 in the bank statements made in a previous case and suppose someone may have been fibbing back then, and if so, why not now too. And the small multiple of 3 people means nothing, one could easily just argue that birds of a feathetr flock together. Then there is the whole Bolton Peck thing, which whatever it comes down to legally or not it would seem to many that not paying him is a dishonorable action.

_________________
Pegasos2 G3 running AOS 4.1 and MorphOS 2.0
Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@Tigger

Quote:

Tigger wrote: Quote: Enjoy your USA legal Swiss cheese. Seems your system is the one with the problem -Tig

Hey man! South Africa gave us Charlize Theron, thats all that matters!

_________________
Pegasos2 G3 running AOS 4.1 and MorphOS 2.0
Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

Quote:

fairlanefastback wrote: @Tigger Quote: They sent Hyperion $8,850 in November to clear up any possible misunderstanding about them having paid the full amount, which apparently is a number Ben gave them as a sum still owed for the buyback. I don't think its been made definitively clear if these other monies were for the buyback, or for other services rendered.

Exhibit K, paragraph 2, is pretty adamant that it is concerning the buyback clause even mentioning buyback clause and Section 3.01 (which is the buyback clause).

Quote:

Conjecture either way, but if one wanted to its just as feasible to remember the only having $100 in the bank statements made in a previous case and suppose someone may have been fibbing back then, and if so, why not now too.

Understand as far as we know, the $100 is absolutely true, they had no income, they had been kicked out of there offices and were working from home, why exactly do you think they had more then $100 in there corporate account at that time?

Quote:

And the small multiple of 3 people means nothing, one could easily just argue that birds of a feathetr flock together.

If Fleecy and Bill were going to lie, they should have done it at the Peck trial, or Matts or any of the other 7 they lost for money. Or at the Thendic trial, so that Buck wouldnt have won so strongly. And now with the 3 additional lawyers on the case, you think all 4 of them are going to be lying and providing falsified data to the federal court?

Quote:

Then there is the whole Bolton Peck thing, which whatever it comes down to legally or not it would seem to many that not paying him is a dishonorable action.

I dont think its an honorable thing to not pay him, thats why I generated that list of debters years ago, thats why I told everyone when they got kicked out of the offices (TBone and I both bought pizzas to prove they were really gone) of course MikeB shouted loud and hard that it was FUD and dont listen to anyone who says they have been kicked out they've moved to fine new offices. All so AI could continue to sell coupons that they are just now might actually honor. But it doesnt meant they are going to lie in a deposition and commit perjury in a Federal Court. McEwen doesnt want to go to jail, and Fleecy would be the sheep if he went to jail so he surely doesnt want to go, and the 4 lawyers surely are not going to lie and fake letters presented to a federal court in a deposition.
-Tig

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

@Tigger

Quote:

Or at the Thendic trial, so that Buck wouldnt have won so strongly.

Now... you do not know that, do you...

Collateral damages come to mind.

_________________
Indigo 3D Lounge, my second home.
The Illusion of Choice | Am*ga

Quote:

Turrican3 wrote: I'm not a lawyer, so I'd like to ask whether the various property change of the OS and/or of the company (AInc) who originally signed the 2001 agreement might render the latter void and null.

No, though if Hyperion wanted to argue that it did, they should have not sold the OS to Itec in April of 2003 and not entered into the Arctic PDA deal (if they signed the contract we've seen) in April of 2004. Both of those can easily be used to show that Hyperion believed that first Itec and then KMOS was the legal owner of the 2001 contract.

Quote:

I would also like to know what you think about section 2.06, where it says Amiga hereby acknoledges and accept that some third parties may only grant an Object Code license or may otherwise restrict the rights granted to Hyperion.

I think it allows Hyperion to no send all the code for the OS, I think it allows them some wiggle room on what they have to deliver, however since they have delivered nothing, they are in violation for that.

Quote:

Maybe this is what Hyperion's lawyers rely on to claim the buyback option hasn't actually been executed (not completely at least, for example I understand ExecSG is owned by the Friedens, and so on)

What Hyperion should have done in May of 2003, is put some code (not anything they didnt have rights to, and probably not some they did have rights to), the object files and the currect executables on a CD and sent it to Itec. Then they could have argued that they had complied with the buyout clause after they were paid. If they wanted to argue about ownership of Exec SG code, etc, that would have been fine at that point, though in the case of Exec SG, my professional opinion is that wont win over it, but there are several portions of the OS that AI is not going to get source code on. The problem is that since Hyperion delivered nothing, they are in violation, if AIs fight was we didnt get everything they promised, they would have a much weaker case, because the judge would have to decide did Hyperion provide everything they had promised, we'd have to have expert witnesses on the subject, etc. You buy a car and the guy doesnt deliver it, you have a pretty open and shut case. You buy a car and it turns out the radio doesnt work, you might have a much harder time getting the judge to make him fix the radio on the car he delivered, especially if you dont tell anyone for 4 years.
-Tig

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

@Tigger

Well as I said we don't know that Hyperion will be disputing payments. But we don't know they won't either. It will be interesting to see.

Quote:

Understand as far as we know, the $100 is absolutely true, they had no income, they had been kicked out of there offices and were working from home, why exactly do you think they had more then $100 in there corporate account at that time?

"May be true", "could be true", "most likely is true". I think those are better choices than "is absolutely true" as you say. They seem to get money in odd ways and to be able to afford lawyers, I don't imagine to understand how they manage to have such sweeping changes in finances in such short periods of time with no fundamental changes to their business or product line that are visible to the outside. The Prokom infusion is one hell of a bizarre event.

And as for people not wanting to go to jail, sure, but is anyone acting under a delusion, is everyone involved even mentally stable? And lies can be presented to a court where the lawyers don't know their clients are lying. So I'm not saying there is any big conspiracy, but people lie to courts all the time, yet you are sure its impossible these parties would. Again, its you speaking in absolutes that dosen't make sense to me. And they supposedly have millions now in liquidity based on the Kent deal, yet they won't pay Bolten. If anything the dishonorable action there, if I'm going to lean one way or the other on conjecture is that they may be dishonorable in other affairs as well.

Last edited by fairlanefastback on 17-May-2007 at 02:40 PM.

_________________
Pegasos2 G3 running AOS 4.1 and MorphOS 2.0
Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

Quote:

fairlanefastback wrote: Quote: Understand as far as we know, the $100 is absolutely true, they had no income, they had been kicked out of there offices and were working from home, why exactly do you think they had more then $100 in there corporate account at that time? "May be true", "could be true", "most likely is true". I think those are better choices than "is absolutely true" as you say.

I didnt say it was absolutely true, I said as far as we know it is absolutely true which is basically identical to your suggested replacements. In addition, it would be a really stupid thing to lie about, one call and the anyone in town can find out if a check for say $150 would clear.

Quote:

They seem to get money in odd ways and to be able to afford lawyers, I don't imagine to understand how they manage to have such sweeping changes in finances in such short periods of time with no fundamental changes to their business or product line that are visible to the outside. The Prokom infusion is one hell of a bizarre event.

But we dont know of any money at that time, so accusing McEwen of Perjury in the case is a little over the top I think. The Money has come from merger/absorption with Itec and KMOS and then the sale of stock, and they havent had lawyers for most of the cases and didnt even show up for several of those they lost.

Quote:

And as for people not wanting to go to jail, sure, but is anyone acting under a delusion, is everyone involved even mentally stable? And lies can be presented to a court where the lawyers don't know their clients are lying. So I'm not saying there is any big conspiracy, but people lie to courts all the time, yet you are sure its impossible these parties would. Again, its you speaking in absolutes that dosen't make sense to me.

The lawyers letter is the big hook here to prove they have paid the money. He is responding to Ben Hermans, says that Ben says that they still owe 8850 for the buyback, says that AI disagrees but is sending that amount. Since there are no annotations to this we know that the money was actually sent. Reed Smith (the firm who sent this letter) is sending 3 lawyers to Seattle for this case, those guys aren't showing up if one of their lawyers misrepresented the case. You are arguing from an emotional side, AI is dishonorable, etc. Thats true, but that doesnt really matter in a court of law and since I consider the 3 biggest problems for Amiga in the 21st century are Fleecy, Benji and Mike we are really seeing a court case that could get rid of some of the major problems for Amiga and maybe allow it to move forward.

Quote:

And they supposedly have millions now in liquidity based on the Kent deal, yet they won't pay Bolten. If anything the dishonorable action there, if I'm going to lean one way or the other on conjecture is that they may be dishonorable in other affairs as well.

I think they are dishonorable on lots of things, but I dont think they are going to carry out a verifiable lie on a written deposition to a federal court. Thats basically automatic jail time, and why do that over $2500 when they have millions as you say now. As for not paying Bolten, etc, they think they have shed that debt, I disagree as I have said since the KMOS story broke, the courts will find that they are in fact responsible for those debts, but someone need to take them to court, and they dont owe me enough to make it worth my while.
-Tig

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

@Tigger

If Hyperion lose, could they just ignore the court's decision like Amiga Inc do?

@Rob

The lawsuit file is a preliminary motion.
It seeks to stop Hyperion's deal with Acube and force Hyperion to turn over and
documents relating t this deal with Acube and also AMIGA, ITEC,KMOS and AMIGA.

First legal issue is the Agreement valid and binding ?
Second do Amiga Inc #2 have the IP rights as described in the Agreement ?
Third have Hyperion violated the Agreement ?
fourth was the termination process correct ?

If all conditions are proven the court stops Hyperion using Amiga Inc' IP untill next
legal action for damages is filed or heard.

t

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Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

@Rob

Perhaps they could even contract Amiga Inc for their expertize on that matter...

Last edited by pixie on 18-May-2007 at 09:16 AM.

_________________
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The Illusion of Choice | Am*ga

re: Time line PDF

http://www.merlancia.us/amiga-hyperion/Time-LineOfChangesInAmigaIPOwnership.pdf

Nice work.

It may be useful to also look at the time line of OS 3.9 sources being written and still not being in the hands of AMIGA INC. Amiga Inc claimed to own all rights to the Amiga OS in 2001. the inability to hand over the 3.9 code to Hyperion for the OS 4.0 work is going to kill Amiga Inc in court before anything else.

Edited: Just looking at the back of My Amiga OS 3.9 CD Case and the Copyright info. and looking at clause 4.01 of the Agreement makes me think....

Edited: Just had to go and dig and dig and dig and I found It. My OS 3.5 CD and I looked at the back of the CD Case to compare with the OS 3.9 one ... hmmm.

Last edited by Spectre660 on 19-May-2007 at 02:01 PM.
Last edited by Spectre660 on 19-May-2007 at 01:30 PM.

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Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

@Tigger

Timeline me in

http://www.ann.lu/detail.cgi?category=news&file=1161197009.msg

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Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

@Tigger

Look at the last line of this one (in fine print)

http://www.hyperion-entertainment.biz:8080/news/2004-05-13


Also a month after the date on the Arctic Agreement (07-April-2004), an Investor sinks US$1,000,000 into KMOS (10-May-2004) because of a SMart Phone and PDA OS possibility.

Last edited by Spectre660 on 19-May-2007 at 04:55 PM.

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Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card