Everyone's mostly ignoring the Eyetech factor.
Eyetech released hardware and shipped it with OS4 (whatever version you want to call it).
Eyetech was never contacted AI (Wash) became insolvent and went on and made the microA1 because they could.

Therefore, Eyetech will be called in as a witness and vouch for Hyperion's claims that AIWash (eyewash?) was dead and buried as stated in the Thendic lawsuit.

Heck at this point, Hyperion should rename themselves Amiga Inc. (Belgium) and release Amiga OS 4.0 since they now own the "Amiga OS" trademark.

My take.

@Thread

There seems to be some confusion between the term "completion" and the term "release."

Even if the OS was not officially "released" does not mean that the work had not been completed, and hence the OS had been "completed" to specification.

I mention this, as I'm pretty sure this point will be argued both ways.

Example:
A record company contracts a band to record an album.
The album is recorded, mixed, mastered and pressed to CD by May 23rd.
the public release of the album is June 30th.

When was the album completed?

_________________
Troll - n., A disenfranchised former potential customer who remains interested enough to stay informed and express critical opinions.
opp., the vast majority who voted silently with their feet.

As a software engineer myself I find the contract between Hyperion and Frieden brothers particularly disturbing. Why? No Deadline. Hyperion was supposed to finish OS 4.0 within two month when that contract was made, yet they dont set a deadline? On the contrary, they even promise 30.000¤ per month for as long as they might take. Thats extremely careless.

@Ketzer

Quote:

Hyperion accepted that Amiga D is enititled to the buyback explicitly on April 24, 2003 in a contract and implicitly by accepting money under the buyback clause (be it enough or not).

They discuss this in their response, they claim they did not know about Amiga's insolvency in April 2003 and thus assumed Amiga was not insolvent and proceeded accordingly. Also, the buy-in contract was signed before money was transferred, they don't acknowledge in the buy-in contract that they have received money, they simple agree to transfer ownership of OS4 against a payment of $25k plus any outstanding debts, a sum they did not receive, thus they have retained ownership.

@Ketzer
I'm not sure that "basically accepted" automatically means that Hyperion can give away rights it does not entirely own (I'm referring to their claim that Eyetech should have been involved in all that property change mess).

And anyway if AInc did not pay the full 25k USD required for the buyback (or buy-in, or whatever they decide to call it) the whole argument should be pointless to discuss. Well, when we're talking about amiga-related issue, better use maybe.

@Boot_WB

That's actually an important point you make there and should dismiss at once any arguments regarding the naming of the releases affecting the completion date of OS 4.0.

@COBRA

Hyperion admits (and provides an invoice) that they received 22.500$.
Hyperion provides one further invoice of 5000$ for MESA predating the OS4 contract.
Amiga claims to have send in april/may 2003 a combined 25000$, 7200$ at an unnamed date and 8850$ in november 2006.

Except for the 22.500$ which both parties agree, no further receipts are available as of now. Why did Hyperion do further development when they must have been aware that Amiga was trying to execute the buyback clause, eg work they must have assumed they would NOT receive any additional money for?

Last edited by Ketzer on 23-May-2007 at 12:43 PM.

@Ketzer

The buy-in clause is executed when Amiga paid all outstanding debts to Hyperion, plus $25k. They had no reason to accept that the buy-in was executed until all that money is transferred and as it turns out it was not transferred until the end of 2006 (i.e. way too late). Also note that when the buy-in contract was signed, OS4 was not yet completed, thus when OS4 reached the goals set out in the contract, Hyperion have been waiting for over a year for Amiga to pay their debts.

Last edited by COBRA on 23-May-2007 at 12:54 PM.

@stew

Quote:

If Hyperion thought Ainc went insolvent and Hyperion owned the OS , why would they enter into further agreements with Kmos/Itec ? Didn't Ben post that IF AInc went insolvent that Hyperion would retain possesion of OS4 after the time period that they now state Ainc was already insolvent?

This is covered in Hyperion's submissions. They state that they were unaware of Amiga Washington's status at the time that they signed the deal with Itec. They claim they were told that Amiga Inc was separating out the Classic OS part of the business from the Amiga DE side of the business, but it now seems they were shifting their entire business over to another company to escape the mountain of debt that Amiga Washington had accrued.

They claim that the contract they signed with Itec is invalid, since Amiga Washington was insolvent and thus under the terms of the contract Hyperion already owned all rights in regard to Amiga OS4, so Amiga Washington was not in a legal position to assign those rights to Itec. They also point out that they could not have waived away rights which they were unaware they had, presumably to avoid Amiga Inc claiming that by signing the contract with Itec they signed away the rights to OS4 even if they were unaware they had them.

Please note that I have written the above from memory, Hyperion's actual statements can of course be found in the official legal documents, but this ought to give you the gist of their argument.

@COBRA

The first transfer was well before completion of OS4.0. Amiga claim this was complete.

Hyperion claim it was not enough.

Amiga claim to have send another 7200$.

Hyperion claim it was not enough.

Amiga claim to have send another 8850$.

Hyperion claim it was too late.


Yet through all that time, at least till December 2004 (where frieden claims os4.0 was feature complete, eg 19 months!!!) they invested (only considering the contract with the friedens) 570.000¤ while being aware that Amiga wants to buy back the ip for a mere 25.000$ ?

"Does not compute"

@COBRA

Quote:

They discuss this in their response, they claim they did not know about Amiga's insolvency in April 2003 and thus assumed Amiga was not insolvent and proceeded accordingly.

So Hyperion
(a) says they thought Itec was a legitimate successor to AI(W), except for the "insolvency" (undermines their own "there cannot be a successor without written approval from Eyetech" argument),
(b) claims they were so convinced of fact (a) that they actually, without further research, signed an additional contract confirming Itec's right to act as successor, then
(c) took Itec's money, only to
(d) discover that Itec was not, in fact, a successor to AI, yet proceeded
(e) hold on to the money (which can't even be used as payment for past debts incurred by AI(W) *unless* Itec is indeed a successor with regards to that contract). And they also
(f) seem to have failed to ever send any communication Itec's way regarding their newly found insight; They never complained that they were duped into signing item (b). No, instead they
(g) signed yet another OS4 based contract, this time with KMOS. KMOS, whose only possible claim to anything OS4-related would have to come through the very same Itec which Hyperion now believed to not have any claim at all.

I am sorry, but while the submissions are certainly well prepared and make for smooth reading, I fail to see any substance in them which undermines the basic "we took the money, receipted it, and kept it" problem, nor the "we have dealt with Itec and KMOS as successors for the last 4 years" problem.

Similarly, the whole "release" and "completion" saga, while entertaining, is bound to be shortlived. I reckon it will last about three questions... "So, when do you believe OS4.0 was completed?", "When did you pay the third party contractors their on-release payments?", and "Can you explain the discrepancy?".

Hyperion has put forward many theories of why they are the owners of OS4. The problem is that all of those theories are being put forward *now*, and that there is not a shred of evidence that Hyperion has ever raised any of these issues in the 2003-2006 period. There *is*, however, lots of evidence, easily available to Amiga, to show that Hyperion has publicly acted during this period in a way which acknowledged the legitimacy of of Itec/KMOS/Amiga(D).

@Turrican3


Quote:

I have only one doubt (a big one actually), should Hyperion got the rights to OS4 with this lawsuit, would they be allowed to port it on any hardware they wanted to?

This passage in Document 24, page 25, lines 9-11 ....

Quote:

If Amiga Delaware fails to prove any one of those steps, Hyperion has than exclusive, perpetual, world-wide right and license to develop, use modify and market the Software and OS 4 under the "Amiga OS" Trademark in any hardware it chooses.

... says Hyperion beleive they have that right. Can any one tell me if this would be true if Hyperion wins? Seems that might be a topic for another law suit to me. Seems if Hyperion wins, they would port to other hardware at least until some one or some thing tried to make them stop.

Plaz

@umisef


That said, Amiga Washington did become insolvent by Bill's own admission. And as of right now there is at least the possibility of the appearance that Amiga has submitted one incomplete contract copy and another false one based on what Hyperion has brought forth. And based on the incomplete first document and Fleecy's declaration it looks as if Amiga *may* have left out the page and had Fleecy possibly lie of the Frienden contractor issue. No judge is going to like that if he finds Hyperion's version of those facts more credible.

Additionally Bill in emails produced acknowledges he has no right to the kernal of OS4. So thats going to hurt Amiga as well.

Last edited by fairlanefastback on 23-May-2007 at 01:23 PM.

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

@Ketzer

Even with Amiga executing the buy-in, Hyperion is still entitled to sales of OS4, thus they had no reason to stop development as they knew that if Amiga do pay their debts in time, they will still profit from the work they have done just the same.

@umisef

You forget one very important point: that Hypeiron wanted to resolve the issue with Amiga in a friendly manner, through binding arbitration, rather than publically claiming the rights to OS4 when Amiga and their legal representatives disagree. We also know that these disputes between the two companies have been going on for a long time, and we don't know much of the communication that was going on between them. You claim things like "seem to have failed to ever send any communication Itec's way regarding their newly found insight" when none of us have records of the communication between the companies except they themselves. You also make things up like "Can you explain the discrepancy?", so you assume the developers were not paid when the OS was completed, yet we have no information currently about this. So again your claims, opinions are based on assumptions. Get back to us when you learn to seperate facts from fiction.

Last edited by COBRA on 23-May-2007 at 01:32 PM.

@Spectre660

Quote:

he old $5000 + $25,000 buyback money came up to $30,0000 less $22,250 still left the 7,750 balance re buyback.

I'm suprised some one at Amiga Inc. wasn't stamping "Apply to Buy Back" on these payments to Hyperion or at least getting a receipt stating what the payment were applied to. (Perhaps such documents exists that we haven't seen yet?)

I have one personal experience to compare. (Not that it applys here)
I worked for a CompanyA. CompanyA and CompanyB were in good standing,
but CompanyB owed money to CompanyA for an outstanding bill for Service#1.
CompanyB returned to CompanyA for additional Service#2. CompanyB remitted
the request for Service#2 and a payment. Then CompanyB asked when Service#2 could be delivered.
The answer from CompanyA was "As soon as you pay for Service#2."
CompanyB complained... "But we just payed you for Service#2."
CompanyA explained the recent payment was applied to CompanyB's oustanding
debt and Service#2 could not be delivered before payment was received for it.
CompanyB grumbled a bit, then sent a clearly documented payment for Service#2

I've made the details vague, but this actually happened. I'm sure similar stories occure everyday. With out clear documentation, this type of story could apply to Amiga Inc's case.

Plaz

@Plaz

Yes, it's really common practice in any businesses.

The case between AmigaInc and Hyperion also shows that when you do business with your own money, you are more inclined to have things done (right), rather than when you play with someone else money.

This also shows the difference between managing and presiding.

Bye,
TMTisFree

_________________
The engineering approach to our non-problems: "build a better washer".
The scientific approach to our non-problems: "find a new energy source".
The environmentalist approach to our non-problems: "stop washing your shirts".

I'm swamped here at work, but have glanced at the documents early this morning. If this is what Hyperion is bringing to the table, they should have settled out of court. As I pointed out earlier, claiming Itec or KMOS isnt a legal successor gets thrown out really quick when you realize they signed contracts with both companies. They have basically confirmed the receipt of the buyback money, and we now understand where the $7750 amount came from. I think the most interesting thing in all of this hurts Hyperion the most. Hyperion just proved that AI owns Exec-SG as part of the contract, I surely didnt think they'd be able to prove that, but I bet the lawyers at AI are doing back flips. We also found out that Ben only knows how to do one kind of contract and just copies it alot and if they were actually paying the friedens, they were way over payed given the number here. The Friedens arent worth 75 Euros an hour as a pair, they surely arent worth it each. For 75 Euros an hour and no time limit, you could have gotten some real programmers.
-Tig

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

@COBRA

Quote:

You claim things like "seem to have failed to ever send any communication Itec's way regarding their newly found insight" when none of us have records of the communication between the companies except they themselves

Honestly --- if you were being sued, and your defense hinged on claiming that the party suing you ceased to be in a position to sue you several years ago.... would you not include at least one instance of communicating such doubts to said party? Especially if you *do* include numerous contracts which you have executed with them during the time you now claim they had no authority to do so?

Sure, it's possible. It's also possible that pigs may fly, or that Hyperion and Amiga Inc are really best friends and are doing this just to confuse Bill Buck. Not likely, though, just possible.


The same applies to third party payments as well --- if another part of your defense hinges on the completion date of the OS, and the completion date is under dispute, you would submit all you possibly can to establish your version of the date. And Hyperion submitted contracts detailing that payments are due at release time; Submitting receipts for such payments would have added a huge amount of credibility to their arguments --- the only conceivable reason not to include them would be a lack of payments.


Of course, I may be wrong. But I would give fairly long odds on no release-time payments having been made in 2004 or 2005.

@umisef

Quote:

Hyperion has put forward many theories of why they are the owners of OS4. The problem is that all of those theories are being put forward *now*, and that there is not a shred of evidence that Hyperion has ever raised any of these issues in the 2003-2006 period. There *is*, however, lots of evidence, easily available to Amiga, to show that Hyperion has publicly acted during this period in a way which acknowledged the legitimacy of of Itec/KMOS/Amiga(D).

Although absolutely the same could be said of Amiga Inc's complaint that Hyperion took far longer than contracted to develop the OS. There was no outward sign that Amiga Inc were anything but happy with the development of OS4 up until Bill McEwen's 20 questions, where it first emerged that there were legal issues between the two companies.

In fact neither side has spoken ill of the other up until these disputes became public knowledge, so who knows how they felt about each other behind the scenes?

Quote:

I fail to see any substance in them which undermines the basic "we took the money, receipted it, and kept it" problem

I agree that this is a major hurdle for Hyperion. Unless they are able to mitigate this issue furhter I think this will at minimum ensure that the judge forces Hyperion to present the OS4 sources and object code to Amiga Inc to the fullest extent they are able to. Amiga Inc's documentation is woeful but it seems that Hyperion must have been at some point aware that the money they were receiving was for the "buy-back". They allege that insufficient money was paid within the six month period, but they don't appear from what I've seen so far to convincingly explain why they hang onto this money anyway and did not attempt to resolve the issue.

However, I think most of their other points are well founded. The issue of OS4's release date could probably go either way, since both sides have good points there, and I think in most other areas Hyperion have the edge. The fact that Amiga Inc presented an unsigned contract for the Arctic work that now appears to not be the version of the contract that was actually signed is surely not going to win them any favour since it makes them appear at best incompetent, and at worst deliberately deceptive.

As it stands I doubt either side would be capable of claiming total victory at the end of the case, if it runs it's course.