@Tigger

The agreement... it has much less valued if it isn't secured that way. Well, just imagine that they could have access to what is written to check it out. They would have the hablity to use the trademark, like, forever.

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@fairlanefastback

Quote:

fairlanefastback wrote: @Tigger Hyperion has said that the conveyance was presented as legitimate at the time and that later they found out it was not and that they believe they were purposely lied to to meet that end.

Read what they actually say, they say Eyetech and AI(w) didnt agree to the transfer (originally they said they didnt agree to it either, they have changed that tact). What could Itec have done to make Hyperion believe Eyetech had approved it, they arent even saying that Itec lied that it had gotten permission, they have been very careful to say anything like that. They are saying Eyetech did not give permission, if that is true, then its Hyperions issue that they didnt check, not Itecs, because until Itec is the successor company, they are not bound by the rules of the 2001 contract. We didnt know AI(w) was insolvent is there other point, it doesnt matter (though they were not), even if insolvent, the 25K buyback can occur, nothing in the 2001 contract says it can't. This lawsuit in New York is about the 25K buyback and even an AI(w) insolvency doesnt prevent that from occuring.

Quote:

They freely admit they thought Itec was a rightful successor at the time. But now that it is known to them in their intepretation now that they are not that the contract was enetered into in bad faith by the other party and based on purposely misrepresented circumstances and facts.

Again point me to the part of the 2001 contract that says the buyback cannot occur after insolvency? The contract is not void after an insolvency even if it had occurred, its also not Itecs job to be sure that Hyperions partners are okay with the 2003 contract, it is Hyperions job, they are the one selling something to Itec.

Quote:

Hence they are not bound to it. Your oversimplication to make the point you want to make is not the same one-dimensional way everyone will view the situation. Hopefully the judge included.

They signed a contract, the took money, they need to deliver the product, the New York case is that simple.
-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.

@fairlanefastback

Quote:

fairlanefastback wrote: And in reality even if Amiga/Itec/KMOS wins will Hyperion actually hand anything over or will they just tell Amiga what Amiga told Bolton Peck? I don't put much past either player in this legal game.

good thing amiga want the code then, and not actual cash.

_________________

@pixie

Quote:

pixie wrote: @Tigger The agreement... it has much less valued if it isn't secured that way. Well, just imagine that they could have access to what is written to check it out. They would have the hablity to use the trademark, like, forever.

The 2001 contract? Ben wrote it, he's a lawyer, it took everyone about 5 minutes after Ben told us about his "bankruptcy proof" contract for everyone to point out to him, that Bankruptcy proof contracts dont exist in the US. In fact most of the US code about Bankruptcy and Insolvency deal with preventing people from doing the very thing Ben wanted to do with the contract. The entire 2001 contract was written around a hope that AI would go out of business and Hyperion would get to keep everything and pay nothing all based on a lie that they could finish the OS in a 4 or 5 months. Instead in 2003, Hyperion is the one who is broke and has to get Itec to bail them out. Everyone keeps glossing over that. Hyperion needed money and Itec gave it to them, now Hyperion doesnt want to live up to the contract.
-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

Quote:

because until Itec is the successor company, they are not bound by the rules of the 2001 contract.

Except the 2003 contract can not stand on its own without its built-in requirements to have elements of the 2001 contract to be taken into account and its written referencing the 2001 contract specifically. The only reason to reference the 2001 requirements is that they were operating under the belief that Itec was the proper successor. Thats not much of any stretch for a judge to see.

Quote:

Again point me to the part of the 2001 contract that says the buyback cannot occur after insolvency? The contract is not void after an insolvency even if it had occurred, its also not Itecs job to be sure that Hyperions partners are okay with the 2003 contract, it is Hyperions job, they are the one selling something to Itec.

When they thought they were the successor they were given an opportunity to pay the buy-in amount (buy-in as per the Washington judge btw, not buy-out, *maybe* the NY judge will use your word instead). Itec elected not to pay the full $25,000 at that time. Payment incomplete. Now that Hyperion knows they are not the legal sucessor in their view they did not cash the newly issued check. No surprise there. Itec should have paid in full when they had a chance to an demanded fulfillment of the buy-in way back then before Hyperion knew any better. But they did not.

Quote:

They signed a contract, the took money, they need to deliver the product, the New York case is that simple.

LOL. We'll see. Will it even happen? Since Hyperion sued them first in WA? I'm curious, why is the case not on Justia yet?

Last edited by fairlanefastback on 26-Jul-2007 at 11:22 PM.

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@Derfs

Quote:

Derfs wrote: @fairlanefastback Quote: fairlanefastback wrote: And in reality even if Amiga/Itec/KMOS wins will Hyperion actually hand anything over or will they just tell Amiga what Amiga told Bolton Peck? I don't put much past either player in this legal game. good thing amiga want the code then, and not actual cash.

Is one easier to get if they refuse to give either in the end? What will be the enforcement method in Belgium I wonder should it come to that? Does anyone know?

Last edited by fairlanefastback on 26-Jul-2007 at 11:23 PM.

_________________
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EFIKA owner
Amiga 1200

@Tigger

Quote:

all based on a lie that they could finish the OS in a 4 or 5 months

What is your backup for this accusation against Ben? Since Amiga did not produce the sources they contractually promised they said the original schedule was entirely thrown off. They have said this and it makes for common sense that it would. But I'm most curious how you know for certain that Ben is lieing. If you have proof have you provided it to Amiga's lawyers? Also please show it to us. None of us I am sure want to have the wrong impression of things if you have proof to straighten out what the truth really is. The only apparent lie I see without the proof I expect you must have is that Amiga *likely* lied about its ability to produce sources.

Last edited by fairlanefastback on 26-Jul-2007 at 11:30 PM.

_________________
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Amiga 1200

@fairlanefastback

Ben Hermans 2001:

"Olaf Barthel and H&P did an outstanding job by cutting down the number of compilers required to compile the OS, cleaning up the OS 3.1 source-code and moving code from ASM to C. Whilst there still are some parts which are in ASM, this is a minority. Olaf also put the entire source-code in to a CVS repository which is a tremendous asset.

We have talked to Aaron Digulla who was very helpful and is generally a nice guy and we have come to an agreement about using parts of AROS if need be. "

Ben Hermans April 2002:

"And yes, Amiga controls the hardware OS 4 runs on. But the certification process is open, non-discriminatory and non-arbitrary.
I wouldn't want it any other way"

"reach a comprehensive deal with Amiga which includes them lifting the "buy back" option in the OS 4.0 contract. Note that the amount of this "buy back" option is contractually locked in and quite low and that this is not up to our discretion. "
(Talking about an x86 version)

"One major difference: Amiga Inc. has an option to buy the OS 4 intellectual property at a fixed fee.
Hence they can retake control of the OS (source-code and all) whenever they feel like it.
If they fail to do something with it within a certain amount of time, our right to develop the OS further is revived."

"The whole point of lifting the buy-back option would be exactly to obviate the need to renegotiate all third party licenses.
The buy-back option is exactly designed to avoid the type of nonsense we've seen with H&P and Amiga not agreeing on who owns what.
So you'd get everything in one package, ready to go.
With respect to OS 4.0 not being finished yet, we have a comprehensive list of features we have committed to so this isn't an issue. You'd know exactly what you'd pay for. "


"Besides, if you paid 5 million dollars for something, would you accept other people running off with your IP without putting up a fight? "

Strait from the horse's, well some part of his anatomy anyway.

@stew

Thats a lot of quotes. Was any of them supposed to back up the claim that Ben assuredly lied about time required when he presumably thought Amiga was being truthful in having 3.1, 3.5, and 3.9 sources to hand over and for which Amiga contractualy was required to provide? And isn't Olaf who they had to get the 3.1 code from when it was found out Amiga could not produce it as they had contractuly promised? And additionally even with the lucky acquistion of 3.1 they were able to pay out of pocket for (rather than for free from Amiga as promised) they were still delayed because Amiga could not produce the promised 3.5 and 3.9 code either?

And since when did Amiga Delaware pay $5 million for Amiga IP? That was Amiga Washington no?

I've seen some of these "buy-back" quotes before. The ones I have seen if you look at the questions they answer were answering someone using that language which is why he seemed to usually put the term in quotes as an answer. And neither language is in the contract anyway. Either side has chosen a different characterizing term now that they are in conflict. So far the judge chose "buy-in".

Yes Ben appears slimy, no doubt. And his words to the public don't necessarily match the contract terms. Like I have said before what I think Hyperion has going for them is being the seeming (IMHO) lesser of two evils (not that thats great - it sucks as well) and at least I think its nearly certain they want to actually sell to us an actual product.

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@fairlanefastback

Quote:

They have said this and it makes for common sense that it would.

They also said they would base things on the WarpOS kernel. Says so in the contract, right at the start of the appendix listing what OS4 is.

Four days later Ben was proudly proclaiming that the WarpOS kernel was unsuitable, and that they were going to write their very own Exec replacement.

Exec did not change between 3.1 and 3.9 (it lives in the kickstart ROM); Hyperion had full access to the 3.1 Exec sources.

Yet, somehow, it took literally more than a year before ExecSG so much as booted. Surely you remember the excitement about an ASCII boot log at some Amiga show?

@umisef

Quote:

umisef wrote: @fairlanefastback Four days later Ben was proudly proclaiming that the WarpOS kernel was unsuitable, and that they were going to write their very own Exec replacement. Exec did not change between 3.1 and 3.9 (it lives in the kickstart ROM); Hyperion had full access to the 3.1 Exec sources. Yet, somehow, it took literally more than a year before ExecSG so much as booted. Surely you remember the excitement about an ASCII boot log at some Amiga show?

You can't take a kernal without memory protection and then add it and call it the same kernal. It's like I said from the beginning - Exec is garbage by today's standards. It was looked at and then dismissed. Then we have the memory allocation... I supposed the NT kernal was written in a week considering they had the Windows 3.1 kernal to base it on, right?

@Lou

The NT kernel was in no way shape or form based on the Win3.1 kernel. Its' roots lay in VMS. Now if you say the NT UI, well...

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@Lou

Quote:

Exec is garbage by today's standards. It was looked at and then dismissed.

Well, that was a pretty silly thing to do, wasn't it?

Either it was dismissed *before* Hyperion signed a contract that said they would put a port of Exec on top of a WarpOS kernel --- in which case signing the contract was intentionally deceptive, and it was pretty clear that they had no chance of making the March 1st deadline.
Or there was all of 4 days of "looking at it" before it was dismissed --- because there were only 4 days between the signing of the contract, and the time that the dismissal was stated. 4 days, I might add, during which Hyperion claims they did not actually *have* the code to look at.

So either they never intended to perform according to the deadline (because they had set their mind on a kernel which would take way past that deadline to even boot... and the unavailability of 3.5/9 sources had nothing to do with that), or they abandoned the idea of performing what they had just contractually agreed to within days after signing the contract, based on nothing more than a whim or a personal preference.

Neither is proper behaviour. Neither can be excused by an unexpected lack of 3.5/9 sources.

@umisef

Quote:

4 days, I might add, during which Hyperion claims they did not actually *have* the code to look at.

Can you please point me out to where they claimed this? Thanks.

@umisef

Quote:

umisef wrote: @Lou Quote: Exec is garbage by today's standards. It was looked at and then dismissed. Well, that was a pretty silly thing to do, wasn't it? Either it was dismissed *before* Hyperion signed a contract that said they would put a port of Exec on top of a WarpOS kernel --- in which case signing the contract was intentionally deceptive, and it was pretty clear that they had no chance of making the March 1st deadline. Or there was all of 4 days of "looking at it" before it was dismissed --- because there were only 4 days between the signing of the contract, and the time that the dismissal was stated. 4 days, I might add, during which Hyperion claims they did not actually *have* the code to look at. So either they never intended to perform according to the deadline (because they had set their mind on a kernel which would take way past that deadline to even boot... and the unavailability of 3.5/9 sources had nothing to do with that), or they abandoned the idea of performing what they had just contractually agreed to within days after signing the contract, based on nothing more than a whim or a personal preference. Neither is proper behaviour. Neither can be excused by an unexpected lack of 3.5/9 sources.

I guess you missed the point of the post - which is to further explain why the Friedens own ExecSG and if it's a port that Amiga Inc. contracted for, and if ITEC wins, it's a port they will get...all the good it will do them.

@COBRA

Quote:

Can you please point me out to where they claimed this? Thanks.

The four days were between November 3 and November 7, 2001.

According to Hyperion, they only contracted with Olaf to get access to the sources in December 2001 (despite the contract "mistakenly" being dated October). And again according to Hyperion, Amiga Inc did not give them sources, but rather pointed them at Olaf.


So they didn't get the sources from AI, and they didn't get them from Olaf until December. Hence, no sources at the start of November.

@Lou

Quote:

I guess you missed the point of the post - which is to further explain why the Friedens own ExecSG and if it's a port that Amiga Inc. contracted for, and if ITEC wins, it's a port they will get...all the good it will do them.

There is one problem with this really clever retort --- namely that in their eagerness to develop this All New And Improved kernel, Hyperion somhow neglected to actually *do* the thing they contracted for. They simply don't have a port for Amiga to get.

(Actually, there are many other problems, not the least that the contract is for a working OS, not an Exec port and a bunch of modules which run under a different kernel, but fail to run under that Exec port. But that's just peanuts compared to the absolute lack of an Exec port in the first place...)

@umisef

We're talking about WarpOS sources, not exec/AmigaOS sources, and WarpOS was not provided by Olaf or AInc. When they drafted the contract it was planned to use WarpOS as the basis of the OS4 kernel, we agree on that. When they got access to the WarpOS sources they realized that it was not suitable (e.g. mostly assembly code, very much hardcoded for the hardware they were made to run on, etc.). It's silly to assume that they deliberately underestimated the amount of work by putting in the contract that they will use WarpOS code if they already knew that that code was not suitable. They would have had absolutely nothing to gain from such an act.

Last edited by COBRA on 27-Jul-2007 at 03:45 PM.
Last edited by COBRA on 27-Jul-2007 at 03:44 PM.

@stew

Quote:

"Besides, if you paid 5 million dollars for something, would you accept other people running off with your IP without putting up a fight? "

How much due dilligence did they do to make sure they had written permission from Hyperion and Eyetech to sell Amiga Washington to Itec/Kmos/Amiga Delaware as specified in the original contract? If it's that important to Amiga Inc. then they would not have some of Hyperion's arguments against them right now. They'd have a piece of paper with Hyperion and Eyetech signatures specificaly and explicitly for that topic to wash that argument away quite easily. Since they do not have that, and are trying to pul together some other items to make an equivalent, it seems they did not at the time of the Itec aquisition of Amiga Washington care very much about that... IMHO of course. Now they're working after-the-fact to put that back together, and may en dup successfull, we'll have to wait for the final judgement to see, but they don't seem as prepared for that as they could have been if they had cared about it.

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All glory to the Hypnotoad!

@billt

I agree with you. It is not what we see in the filed court documents, it is what we don't see there.

Where is the document proving that Amiga Delaware owns the trademarks?
Where is the document proving that Eyetech and Hyperion approved the transfer of IP to Itec?
Where is the document proving that Eyetech and Hyperion approved the transfer of IP to KMOS?
Where is the document proving that $25,000 was paid to Hyperion within the required time period?
Where are the documents proving that Amiga Washington was not insolvent?
Where are the documents proving that Amiga Delaware owns anything?

The fact that none of these have been presented, speaks volumes.

_________________
Amiga user since 1985.