@umisef

Quote:

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?

They presented plenty of evidence to support their claims, for example that Amiga were insolvent, Bill McEwen admitting this himself at a US court of law is very strong evidence and is not the only one they provided. And insolvency of Amiga is only one of the many points of their defence. Amiga will have to prove each of those wrong to have a case.

Besides, the aim of the current response of Hyperion is to have preliminary injunction denied. I doubt that they have presented everything, all they need to achieve at this point is to show the court that Amiga's claims are not valid and are not entitled to a preliminary injunction.

I'm sure that we will find out a lot more interesting things as the case unfolds, which may be in favour of Hyperion or Amiga Inc. It may turn out that some of your theories are correct, it may turn out they are not correct. We will see. I'm looking forward to seeing Amiga's response and how they intend to counter all those points and the evidence Hyperion provided.

Does anyone see that the Arctic Agreement (Signed version) indicates KMOS accepts Hyperion's rights to OS4.0 ?

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@Tigger

So, please read it carefully and thoroughly in the first place and talk about your conclusions afterwards.
That's the best way to do it, I can assure you.

Quote:

COBRA wrote: They presented plenty of evidence to support their claims, for example that Amiga were insolvent, Bill McEwen admitting this himself at a US court of law is very strong evidence and is not the only one they provided. And insolvency of Amiga is only one of the many points of their defence. Amiga will have to prove each of those wrong to have a case.

Actually by US law, AI wasnt insolvent and if there were, 2.07 wouldnt work. That was the entire arguement going around 4 years ago with Hermans. US bankruptcy law (and its relationship to insolvency issues) wont allow clauses like 2.07 to survive. I explained that to Ben years ago.
-Tig

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@madtrekker

Quote:

Although absolutely the same could be said of Amiga Inc's complaint that Hyperion took far longer than contracted to develop the OS.

Amiga Inc. supposedly was not able to supply the source code under which timelines were originally envisioned and may have mis-represented that they had the code according to Hyperion. Hyperion also had to incur expenses to get access to some of the code themselves.

Quote:

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.

They only "receipted" $22,500 towards the "buy-in". They show where its agreed other debts have to be paid first and list one of them. And even if the "buy-in" is paid its not supposed to disturb their license anyway according to them. Their arguement at least, I think, shows an attitude of "we took the money, receipted it, and kept it" is an oversimplification.

And if the judge believes the contention of Hyperion of Amiga presenting altered documents through omission in one case and replacement with an earlier copy in another thats going to hurt their credibility badly.

Last edited by fairlanefastback on 23-May-2007 at 03:24 PM.

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Amikit user, tinkering with Icaros VM (AROS)
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@Tigger

Since you seem to be very familiar with US law, can you tell us mere mortals what is the definition, by US law of a company who is insolvent?

Last edited by COBRA on 23-May-2007 at 03:33 PM.

Score Sheet

Round #1

Amiga Delaware 0
Hyperion VOF 1

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

@madtrekker

Quote:

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.

If this actually "runs its course", then I believe both sides will end up claiming total defeat.

@Spectre660

Quote:

Does anyone see that the Arctic Agreement (Signed version) indicates KMOS accepts Hyperion's rights to OS4.0 ?

Is that question genuine or rhetorical? I see in the agreement that Hyperion are doing OS4, that no other agreements shall be affected by this one, and that Hyperion is to deliver object code of the OS4 adaptation to KMOS which they are then free to use for demonstration purposes.

Last edited by dirigent on 23-May-2007 at 03:43 PM.
Last edited by dirigent on 23-May-2007 at 03:42 PM.

@Tigger

Quote:

Actually by US law, AI wasnt insolvent

I think we are all very interested in your definition of "Insolvent".
On this side of the lake it means, not to be able to settle debts.
(BTW in Germany at least you MUST sign for bancrupcy if this occurs, otherwise its a criminal offense)

Quote:

and if there were, 2.07 wouldnt work. (...) US bankruptcy law (and its relationship to insolvency issues) wont allow clauses like 2.07 to survive.

Oh it seems we have an Expert in SW-Development, Rocket Sience AND business law among us. Who else would state such a claim.
That would be nice to hear also. Just out of interest.

@Tigger

In WV car factory workers get somewhere 60-65e per hour. Engineer hour is even more pricey. In Germany salaries are quite high.

So if you think, that you can get programmer for 37,5e per hour, you are lost . You can't get code-monkey for that price.

I find it quite amazing, that you smash hyperion in here, ainc elsewhere, same time as you describe yourself as very good senior programmer, senior project manager and you have even good and insight knowledge of US law and corporate level contracts. I think that this picture all together is not very trustworthy.

@fairlanefastback

Quote:

Their arguement at least, I think, shows an attitude of "we took the money, receipted it, and kept it" is an oversimplification.

How so?

They took the money. They receipted it. They kept it. None of those are open for debate.

And while they are now very strongly arguing that there was absolutely nothing for Itec, KMOS or Amiga(D) to buy, and that regardless of the amount of money sent, Itec (or whoever) would not actually have been able to exercise the buyback clause --- they still have not offered to return the money mistakenly paid.
This was paid 4 years ago. This money has shown up in no less than 4 end-of-financial-year reports of Hyperion; It must have driven their accountant nuts to somehow try and account for this mystery money. And yet, no indication whatsoever from either side that anyone has ever so much as mentioned that the payment was in error, and which bank account would you like us to refund it to. None.


Mind you, I don't think either side looks good in this. AI's submissions are of poor quality, lacking important pieces of information and the lawyer who prepared them should go back to law school. Hyperion's submissions, on the other hand, are masterfully crafted, beautiful, and lack any real substance.

To sum it up, this case is "crap" vs "fluff". Tough to pick a winner :)

@Spectre660


Quote:

Spectre660 wrote: Does anyone see that the Arctic Agreement (Signed version) indicates KMOS accepts Hyperion's rights to OS4.0 ?

Where exactly do you think it says that?
-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.

@umisef
Quote:

This was paid 4 years ago. This money has shown up in no less than 4 end-of-financial-year reports of Hyperion; It must have driven their accountant nuts to somehow try and account for this mystery money.

Finally the nature of the "mystery device" becomes clear!

_________________
Here for the whimpering end

Quote:

Quote: Actually by US law, AI wasnt insolvent I think we are all very interested in your definition of "Insolvent". On this side of the lake it means, not to be able to settle debts. (BTW in Germany at least you MUST sign for bancrupcy if this occurs, otherwise its a criminal offense)

In Germany, Bankruptcy and Insolvency are basically the same thing, they arent in the US, AI didnt declare bankruptcy, and in fact the bill of sale is actually signed before the McEwen testimony (sale on the April 24th, testimony on the August 7th).

This is the timeline
April 23 - Itec buys the Classic OS from AI
April 24 - Hyperion sells the OS to Itec (buyback clause)
August 7 - Bill Mcewen testimony included by Hyperion

See the problem?
Plus Hyperion is lying that they didnt know about AIs money problems, when TBone and I both sent pizzas to the offices in 2002, Ben was among those arguing that it didnt matter, etc.

Quote:

Oh it seems we have an Expert in SW-Development, Rocket Sience AND business law among us. Who else would state such a claim. That would be nice to hear also. Just out of interest.

No I just learned alot about Bankruptcy law when Commodore went under, because we were one of there largest creditors since we did most of there manufacturing.
-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.

@umisef

Again, how do you know Hyperion did not offer to refund the incomplete sum for the buyback to Amiga Inc? Have you seen the records of all communication between the companies so you can claim this? Or you're just making assumptions again? Also it seems Amiga don't want a refund, they want the buyback to be valid and active and they want the OS4 sources, especially ExecSG. Talking about a refund only makes sense if Amiga acknowledge that the buy-in has become invalid due to their failure to pay in time, which is clearly not the case.

@Tigger

Quote:

April 23 - Itec buys the Classic OS from AI

And the other Amiga One partners agreed, as was apparently required?

@mlehto

Quote:

mlehto wrote: @Tigger In WV car factory workers get somewhere 60-65e per hour. Engineer hour is even more pricey. In Germany salaries are quite high.

Dunno where that came from, BUT not even VW works GET anything near that. That sum is probraly a calculation-base for what an hour costs. This includes social-insurance, taxes (on VW-side) compensation for ill-days, holidays, factory clothing, workers-rebate on new cars etc etc.

Having 37.5 Euro per hour in your employment contract would actually be quite a good income (about 3 times than what an average worker get).

Also don't forget, that while workers at VW,BMW&Co might get up 20Euro, other doing similar work in small east-German companies will only get 6Euro (sometimes even less).

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Quote:

mlehto wrote: @Tigger In WV car factory workers get somewhere 60-65e per hour. Engineer hour is even more pricey. In Germany salaries are quite high.

Thats fine, prices are high in Germany, great, thats not the point. The workers in germany, dont get to sit around and collect money each month no matter how much work gets done. There contract, besides overpaying unqualified people, has no goals and pushes for the contract to go slow and take a long time, gee thats exactly what happened.

Quote:

So if you think, that you can get programmer for 37,5e per hour, you are lost . You can't get code-monkey for that price.

Actually at the gateway 2000 show, we thought of the Friedens as code monkeys and really given the "technical prowess" they have shown over the years the monkeys may be mad I call them that.

Quote:

I find it quite amazing, that you smash hyperion in here, ainc elsewhere, same time as you describe yourself as very good senior programmer, senior project manager and you have even good and insight knowledge of US law and corporate level contracts. I think that this picture all together is not very trustworthy.

I know about US corporate bankruptcy because of Commodore. The rest is pretty well know, I used to attend pretty much every US amiga show as a guest, presenter or with a booth. OS 4.0 should not have taken 5 years to complete to the level it is now, implying that it should have is silly. Hyperion should have never promised an OS upgrade in 4 months, and shouldnt have offered to sell it back for 25K, but they signed that contract, so they need to live up to it.
-Tig

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

@Tigger

Quote:

Plus Hyperion is lying that they didnt know about AIs money problems

There's a difference between knowing that a company is having financial problems, and finding out that they are insolvent. Two different things. I'm sure that Ben knew that Amiga had little money, that is the reason OS4 was contracted out to Hyperion for development in the first place, instead of H&P.

Anyway I'm still waiting for you to give us the correct definition of "insolvent" under US law, since you seem to be pretty sure that Amiga are not insolvent I'm sure you must know the exact definition.