@Rob

Quote:

Rob wrote: @Tigger Quote: Actually thats not what Itec says. Itec says they bought the OS under the 2003 contract without being AI(W)'s successor for the 2001 contract. KMOS says that once the buyback was carried out, that basically the 2001 contract was abandoned because it doesnt make much sense with Itec and then KMOS owning the OS. So the buyback/buy in was executed by Amiga Inc (W) in 2003 and the 2001 contract was abandoned (in 2003) when they sold the OS, rights and title to ITEC.

No, what ITEC is saying "now" is that they have nothing to do with Amiga and just signed a contract to buy the OS from Hyperion (which has Amiga i.p.) and they need to pony up...which begets the question - why would Hyperion sign a contract to relinquish i.p. that they don't own to an outside entity?

It doesn't make sense. Once Hyperion realized that ITEC holds no Amiga assets, they withheld the OS...and the money... I don't blame them for withholding money as when a stone bleeds in Amigaland, you make sure you have a sponge there to soak it up.

@Rob

just going to amend that a bit.

Quote:

So the buyback/buy in was not executed by Amiga Inc (W) in 2003, as Hyperion sold the OS to ITEC for the buyback amount, and the 2001 contract was abandoned, but used in principle to allow Hyperion to sell OS4 still to make some money back, when hyperion sold the OS to ITEC .

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@Lou

Quote:

Lou wrote: No, what ITEC is saying "now" is that they have nothing to do with Amiga

they say they are not the successor. of course they have 'something' to do with Amiga, otherwise they would not have been able to get the OS easily from Hyperion. this is different from insinuating they have 'nothing' to do with them.

Quote:

and just signed a contract to buy the OS from Hyperion (which has Amiga i.p.) and they need to pony up...which begets the question - why would Hyperion sign a contract to relinquish i.p. that they don't own to an outside entity?

maybe they were that much in need of the money.

Quote:

It doesn't make sense. Once Hyperion realized that ITEC holds no Amiga assets, they withheld the OS...and the money... I don't blame them for withholding money as when a stone bleeds in Amigaland, you make sure you have a sponge there to soak it up.

it is not hyperions business or problem. if amino or KMOS thought ITEC were doing something naughty with IP they owned then amino or KMOS could do something about it. As tigger points out repeatedly, Hyperion knew who ITEC were through bill mcewen, they were not hoodwinked or in the dark. they sold the OS for $25000 to ITEC, recieved the money ($250 of which is debated) and never delivered the goods, and now it is almost 5 years later.

you say choose the lesser of 2 evils, i say choose the facts of the case.

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@Dandy

Quote:

Just for clarification: What does make the contract "not valid" - the fact that signatures of involved parties are missing, or does it depend on who claims that signatures are missing? Do missing signatures mysteriously appear on the contract and make it valid, if the right party claims they're missing? Don't missing signatures in itself make the contract invalid?

Understand I dont think any contract is invalid. You need to understand the difference between reassignment of the contract (which Itec said didnt happen with them and which might require the approval of other signatories of the 2001 contract) and Hyperion selling OS 4.0 to Itec which as long as its ok with Amino, is perfectly fine. The sale contract between Itec and Hyperion (ie the April 24, 2003 contract) needed exactly two signatures, it got exactly two signatures, there are no missing signatures on the contract, its a contract between two companies and both of them signed it.

Quote:

I'm still having a semantical problem here: How could KMOS buy OS4 back - they never owned it before, AFAIK...

You have that semantic problem once a week at least, its very annoying. KMOS didnt buy back the OS, Itec bought back the OS anyways, they did it with the support of Amino.

Quote:

If I for a moment assume that this is right, I really wonder why Hyperion let the developers continue to work, if the contract was abandoned.

If thats your only question about Hyperion and the situation, you need to answer lots of questions for me. Why did Hyperion continue to let the developers work on code when they knew they couldnt pay them. Why didnt Hyperion inform the developers they had sold the OS to Itec, and thats just for starters.

Quote:

Who abandoned the contact - or do you say it was automatically abandoned, because it didn't make sense with ITEC.

I didnt say that at all. I said the contract doesnt make sense once the owner of the OS isnt Hyperion and isnt even a member of the contract, thats pretty much true, I think you would have to agree at least with respect to an Amino-Hyperion relationship.

Quote:

(I would expect Hyperion's acceptance to be required for the contract to be abandoned.)

We got that on March 15, 2004.
-Tig

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

@Derfs

Quote:

@Rob just going to amend that a bit. Quote: So the buyback/buy in was not executed by Amiga Inc (W) in 2003, as Hyperion sold the OS to ITEC for the buyback amount, and the 2001 contract was abandoned, but used in principle to allow Hyperion to sell OS4 still to make some money back, when hyperion sold the OS to ITEC .

I wasn't interested in the finer details, instead I wanted to know if it was Tigger's opinion that the 2001 contract was abandoned in 2003.

@Lou

Quote:

Lou wrote: KMOS cancels a contract that they claim not to be a party to.

Which is perfecty legal for them to do as the legal owner of said contract.

Quote:

KMOS sues Hyperion for trademark infringement and wants an OS they never paid in full for, nor entitled to and want to stop Hyperion from sub-contracting a distributer (ACUBE) for selling OS4 when the classic version is available.

False, KMOS paid in excess of $25K as has been shown repeatedly, and you seem to be glossing over that Hyperion was using a trademark that the owner of the trademark says they dont have the right to use.

Quote:

Judge decides Hyperion can continue business as usual until more facts can be determined.

False, Judge decided to not grant a motion stopping Hyperion from doing anything as he believes Hyperion can carry out no action that can't be recovered by a monetary recompensation.

Quote:

Judge joins Amino and allows Amino and Hyperion to undergo "mediation". This alludes to the judge agreeing that transfer of ownership of the 2001 contract to KMOS was never properly done.

False. Hyperion started a 3rd case (Hyperion vs Amino) in the state of Washington, Amino requested mediation on the case, and the judge refused to join the case with Amiga vs Hyperion as requested by Hyperion which means you allusion is basically an illusion.

Quote:

Judge decides that ITEC doesn't need to be here as the original claims of KMOS have nothing to do with ITEC.

False. Judge decided that Itec wasnt a affected by the 2001 contract despite Hyperions claim to the contrary, didnt join them to the case and allowed the Itec vs Hyperion case to continue in New York.

Quote:

Meanwhile in New York, Hyperion now has documents to prove ITEC never acquired any Amino i.p. so Hyperion can show that they were led to believe ITEC was to be the Amino successor, but ITEC acted improperly and never followed through. I think they should return any money ITEC sent them (with interest, ofcourse) and continue do what they will with OS4. This ofcourse means that no one has paid for OS4 and that it is still owned by Hyperion. Now we twidle our thumbs until after April 1st to find out more...

The problem is that Hyperion can't show that at all. They knew Itec hadnt bought Amino, they needed money to stave off bankruptcy, they sold the OS to Itec, now years later they dont want to deliver it. If they had documents to show Itec tricked them (and how exactly could they get tricked) then they would have shown them by now. You are counting on mythical documents to support you case instead of using what documents we have actually seen.

Quote:

Now that everything has been summed up, can we resume thumb-twidling and stop the FUD?

Gee speaking of spreading FUD.
-Tig

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

@Lou

Quote:

Lou wrote: I agree no one is innocent, but I'll side with the lesser of 2 evils...

Glad to hear you are back to supporting A Inc instead of Evert.
-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.

tiffers enters the frey...

I've kind of skimmed through a couple of posts in each of the threads covering this whole mess. While I won't comment on who I think will/should win, I've noticed a couple of things that may need clarification

@Derfs

You said:
Quote:

they sold the OS for $25000 to ITEC, recieved the money ($250 of which is debated)

But, from what I've read (ignoring the 'extra' that has been paid) isn't the overlooked figure $2500? I seem to recall seeing that $22500 was paid, meaning $2500 is missing. I've never seen a figure of $24750 in any thread, which would result in a figure of $250.

Disclaimer: I haven't exhaustively read every post of every thread... I just don't have the time.

@Tigger

You say:
Quote:

You have that semantic problem once a week at least, its very annoying. KMOS didnt buy back the OS, Itec bought back the OS anyways, they did it with the support of Amino.

Now, I read the contract as A Inc (in whatever incarnation, I'm not arguing which one) buys the whole NEW IP of OS4 lock, stock and barrel, so they can use it for further development (ie OS5), and Hyperion can keep 'patching' (as in maintenance only, not new features) OS4 and selling it. This certainly makes the $25000 figure sound a little more reasonable, as they already owned the 'back bone' of the development (OS 3.1) and they just want to pay for the new stuff. Of course they then also have to pay for all the 3rd party stuff that is in OS4 that was written for OS 3.5/3.9 which they currently have no rights to. This makes the $25000 figure look better again.

My take on the semantics, should be "Buy out". "Buy-in" indicates that they would only become part owners, while they clearly state they want it all back for themselves in the contract. "Buy back" indicates they relinquished control and ownership of the exiting IP (ie OS 3.1, and the ill-promised 3.5 and 3.9 sources) and then they want to buy it back, which is not the case (because they provided the 3.1 code for Hyperion to base OS4 on, not give it to them, or sell it to them, and they didn't have rights to the 3.5 and 3.9 stuff, so, how could they sell or give away that). Buy-out, of OS4 specifically, seems to be the correct way to read the contract.

I guess buy-back could be the case where OS 3.1 code is included in OS4, but then they still never relinquished ownership or rights to that code, so they're just buying the new stuff (OS4 code) and they're ok to leave OS3.1 code icluded. Hmm that raises a thought... does Hyperion have any rights to 3.1 sources with this contract? If not, and they win, does that mean they have to pay A Inc to license any OS3.1 code included in OS4? I guess that would be the topic for yet another court case if/when the first one is settled.

Or do I have it all wrong?

tiffers.

Last edited by tiffers on 13-Feb-2008 at 01:46 AM.
Last edited by tiffers on 13-Feb-2008 at 01:45 AM.

@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: Maybe it escaped your attention - but I was talking to Damocles - I'm waiting for his answer... Yeah, I know thats the hilarious part. You misread what Dammy wrote, ...

Well, Dammy wrote:

Quote:

Dammy wrote: Cuz they got the contract in a swap out of IP for debt...

To me that means that ITEC got the Amiga IP because AInc(W) owed money to ITEC and could not pay and so gave them the Amiga IP instead of money.

What do you think I misread there?

Quote:

Tigger wrote: I explain that you misread what Dammy wrote,

When and where was that?
Must have missed it...

Quote:

Tigger wrote: and you still want Dammy personally to explain to you

Yes, of course - as he was the one who claimed something that I can only understand the way I understood it.

As I don't have the ability to read the thoughts he had when claiming so, I have to ask him what he meant with that (as I seem to remember a different story).

Are you now saying you know what he thought when he wrote that and can exlain to me how it was meant?

Quote:

Tigger wrote: that you misread what he wrote

No need to repeat it three times - in the meantime I understood that you believe so...

Quote:

Tigger wrote: because you still believe that KMOS got the contract from Itec instead of from Amiga Inc (Washington) ie Amino. ...

I can very well remember when you repeatedly and adamantly alleged that Itec got it all because they were AInc(W)'s "first secured creditor", AInc(W) owed them money (from their startup) but had none when it was due and so handed everything over to ITEC.

I must have missed that you changed your point of view - sorry.

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Lou

Quote:

Lou wrote: @Dandy ... Now that everything has been summed up, ...

Thank you for your summary, Lou!

Quote:

Lou wrote: ...can we resume thumb-twidling and stop the FUD?

Are you asking me to "stop the FUD"?

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

Quote:

Quote: (I would expect Hyperion's acceptance to be required for the contract to be abandoned.) We got that on March 15, 2004.

I haven't really had the time to follow the latest developments in the lawsuit, what happened on March 15 which makes you think they considered the 2001 contract to be abandoned?

@Dandy

Quote:

ell, Dammy wrote: Quote: Dammy wrote: Cuz they got the contract in a swap out of IP for debt... To me that means that ITEC got the Amiga IP because AInc(W) owed money to ITEC and could not pay and so gave them the Amiga IP instead of money. What do you think I misread there?

Who I was talking about for one. I was talking AI-WA -> KMOS and nothing to do with Itec. Itec is a third party who coughed up the $25K for OS4 from Hypierion to keep Hyperion going into bankruptsy.

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Dammy

@damocles

Quote:

damocles wrote: @Dandy Quote: Dandy wrote: ... To me that means that ITEC got the Amiga IP because AInc(W) owed money to ITEC and could not pay and so gave them the Amiga IP instead of money. What do you think I misread there? Who I was talking about for one. I was talking AI-WA -> KMOS and nothing to do with Itec.

Thanks for clearing this up.

Quote:

damocles wrote: Itec is a third party who coughed up the $25K for OS4 from Hypierion to keep Hyperion going into bankruptsy.

You mean "to prevent Hyperion from going into bankruptsy", don't you?

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Dandy

Quote:

You mean "to prevent Hyperion from going into bankruptsy", don't you?

Yeah, my bad. Guess I should double check my postings as I'm a bit under the weather.

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Dammy

@tiffers

Quote:

tiffers wrote: tiffers enters the frey... I've kind of skimmed through a couple of posts in each of the threads covering this whole mess. While I won't comment on who I think will/should win, I've noticed a couple of things that may need clarification @Derfs You said: Quote: they sold the OS for $25000 to ITEC, recieved the money ($250 of which is debated) But, from what I've read (ignoring the 'extra' that has been paid) isn't the overlooked figure $2500? I seem to recall seeing that $22500 was paid, meaning $2500 is missing. I've never seen a figure of $24750 in any thread, which would result in a figure of $250. Disclaimer: I haven't exhaustively read every post of every thread... I just don't have the time.

On March 18, 2003 - Bill McEwen wired $2500 to Hyperion making the debt $22500

On April 3, 2003 as part of the Itec negotiations Tachyon (a subsidiary of Itec) paid Hyperion 10% which was $2250 as a good faith payment to keep them from going under.

On April 24, 2003 Itec and Hyperion signed the Itec-Hyperion agreement for the sale of the OS for $25K.

On May 5, 2003 Itec wired $20,000 to Hyperion.

Dec 31, 2003 - Receipt for Itec money is dated this date, but written much later, the receipt is for $22500, it should be for $22250.

On March 27, 2004 - Ben Hermans (Hyperion) sends an email to Kouri (Itec) that they have not sent a receipt yet for the money, and offers to backdate it to Dec 31, 2003, which they apparently do.

So the amount is $24750, in fact the latest documents from Hyperion support that or at least mention that number, the issue is twofold.

1) They sent a receipt that implied they entire amount had been paid
2) We have been shown no document before 2006 where they asked for more money when the software was requested, instead they said that they couldnt supply the code because they hadnt paid Olaf yet (which Olaf has confirmed).
-Tig

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

@damocles
Quote:

Who I was talking about for one. I was talking AI-WA -> KMOS and nothing to do with Itec. Itec is a third party who coughed up the $25K for OS4 from Hypierion to keep Hyperion going into bankruptsy.

Why though? This is one part I really don't understand, why would they care if Hyperion went bankrupt or not? Was it because KMOS at the time still thought there was some value in OS4 and wanted to keep development rolling? Or was there some kind of concern about what might happen to their IP if Hyperion went under?

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Here for the whimpering end

@Tigger

Quote:

On March 18, 2003 - Bill McEwen wired $2500 to Hyperion

Ahh this is the step I hadn't heard. Of course, this would add to the other 22250 to make 24750 quite nicely.

Cheers for that clarification,

tiffers

@jorkany

Quote:

Why though? This is one part I really don't understand, why would they care if Hyperion went bankrupt or not? Was it because KMOS at the time still thought there was some value in OS4 and wanted to keep development rolling? Or was there some kind of concern about what might happen to their IP if Hyperion went under?

I think the general concensus is KMOS was worried about IP being trapped in bankruptcy court for unkown time period. Considering what KMOS would probably have to spend in lawyers to make sure their IP was not infringed apon when court ordered selling off Hyperion assets, it would probably be far cheaper for the $25K be spent keeping Hyperion out of trouble.

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Dammy

@Dandy

Quote:

Dandy wrote: @Tigger Quote: Tigger wrote: @Dandy [quote] Dandy wrote: Maybe it escaped your attention - but I was talking to Damocles - I'm waiting for his answer... Yeah, I know thats the hilarious part. You misread what Dammy wrote, ...

Well, Dammy wrote:

Quote:

Quote: Dammy wrote: Cuz they got the contract in a swap out of IP for debt... To me that means that ITEC got the Amiga IP because AInc(W) owed money to ITEC and could not pay and so gave them the Amiga IP instead of money. What do you think I misread there?

Thats great you saying that, but your first response was:


" At what time did ITEC owe money to KMOS?
Must have missed that - can you please provide a link to a document that tells so? "

Thats from your message #226. Then when people tell you, that you are confused, you decide only Dammy can tell you what he meant, everyone but you apparently knew what Dammy meant.


Quote:

I can very well remember when you repeatedly and adamantly alleged that Itec got it all because they were AInc(W)'s "first secured creditor", AInc(W) owed them money (from their startup) but had none when it was due and so handed everything over to ITEC. I must have missed that you changed your point of view - sorry.

Didnt ever change my point of view on that point. I beleived that Itec was the successor to Amino as far as the contract with Hyperion goes, but you can go back to the 2004 timeline I wrote, thats all over, that explained what was happening and see I completely understood that KMOS had bought a substantial part of "it all" directly from Amino including the name and trademarks.
-Tig

Last edited by Tigger on 13-Feb-2008 at 08:14 PM.

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

Can't believe you guys are still following this sh*t!
Anyway, just one question for you "legal clerks", does anyone knows if the Itec contract included source ?

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José