@COBRA

Quote:

and is the most threatening to Hyperion.

Well, they seem plenty desperate in the Washington case to me. Have a look at the latest submission (99) when it turns up on Justia; Taking a clause which says "If Amiga elects not to buy the extra work you have done to add to Amiga's IP, then you shall retain ownership of that extra work" and presenting it to a judge (who presumably is reasonably literate) as the reason why you think that you somehow own the combined work outright is pushing it already; Taking a clause which grants a right and license to use and develop software and to then distribute this software using one specific trademark and presenting it as the reason why they somehow consider themselves an assignee of all of Amiga Washington's trademarks, however, is really beyond what they can reasonably expect anyone to swallow.

So either Kinsell is having a very bad day (or possibly, Kinsell submitted documents prepared by Ben on a very bad day), or they have pretty much given up on having any credibility...

@Dandy

Quote:

I'm afraid you somehow misread the definition...

An "agreement" is the act of people agreeing. A "contract" is nothing but an embodyment of an agreement; "A meeting of minds", or a "pulling together" (from the Latin: con-trahere).

Similarly, the German word for contract, "Vertrag" is the embodyment of "sich vertragen", of getting along and agreeing on things.


Now a joint press release, sanctioned and approved by two parties, certainly *is* an embodyment of agreement on the facts stated in that press release. KMOS and Hyperion pulled together and agreed on what the situation was, then jointly and with the explicit approval of both KMOS and Hyperion, issued a document stating facts.
There is certainly undeniable evidence of agreement there. Whether it meets the standards of US contract law remains to be seen, but if I were you, I wouldn't be nearly as dismissive of the possibility as you are.

Quote:

Hmmmm - the Friedens always claimed that the OS 4.0 classic version was "on par" with the A1 version - so I guess it wouldn't have meant too much effort to make it available as well. But that's just my guess, of course...

Well , the classic version was still given the "When it's done" treatment well after the court case started, in 2007. So apparently it was not done at that point...

Quote:

Is "the developers not being paid" subject to the proceedings latterly - "Yes" or "No"?

It is highly *relevant* to the proceedings, because together with "When it's done" smilies and AmiWest interviews about "when will it be done", it does establish a pattern of behaviour by Hyperion which to anyone not entirely blinkered makes it crystal clear that until November 2006, Hyperion did not consider "it" "done" at the end of 2004. They did not announce it as done. They did not change the name of the developer pre-release to "release". They did not pay the people who needed to be paid after it was done. They did not start work on 4.1.

Quote:

I think initially they thought they were partners, but when AInc started their disguising games to avoid paying their debts Hy perion started to change their mind and at some point saw them as competitors - easy as that...

Are you really that naive?

@Tigger

Quote:

Tigger wrote: @COBRA ..., and now the contract is cancelled ...

That's what I'm still highly doubting.

Your line of arguing was that I "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."

ITEC says a reassignment of the contract didnt happen with them and McBill said in PDF #35, S. 5:

L 1:
12.
In April 2003, Amiga Washington assigned its rights under the Agreement to ITEC.
...

_________________
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:

Tigger wrote: @wegster ...HYPERION didnt send them a CD with OS 4, ...

I didn't know there were other companies aside from Hyperion producing and distributing OS 4 CDs...

Quote:

Tigger wrote: Quote: Not that I think this is a huge item of significance in the court cases, but I do believe they've received the A1s. It has no significance, until Hyperion was telling people publically they were done (ie Dec 2006) or they told AI formally they were done (ie never) the judge isnt going to find that the 6 months had started.

Hyperion is in no way obliged to do so.
Nevertheless they spread the news on all Amiga related media - its AInc's own fault if they don't follow the Amiga news.

_________________
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)

@Kronos

Quote:

Kronos wrote: @Dandy Quote: Dandy wrote: Of course this is AInc's problem - they partnered with Eyetech for the hardware as well as they partnered with Hyperion for the software. So why are they just complaining Hyperion's OS4.0 doesn't meet the reqirements of the 2001 Agreement, if Eyetechs hardware doesn't meet these requirements either? Or - asked the other way round - why should Hyperion be punished for not complying with the 2001 Agreement, while Eyetech can come off without for not complying with the 2001 Agreement? While Ainc may have grounds to sue Eyetech, noone can force them do so. "Everybody does it", "They did it first" etc. may work in a kindergarden-disput, but they make an awfull defense in a court of law.

Agreed so far.

_________________
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:

Tigger wrote: @number6 Quote: number6 wrote: KMOS was using OS4 in March of 2005. Are you saying they pirated it? (sorry, could not resist that one) If you dont understand the difference between KMOS buying an Amigaone from Mr Hardware in 2005 (if that really even happened) which may have came with an OS 4 CD and Hyperion sending KMOS a CD, I cant help explain it to you.

Point is they had an OS 4.0 CD.
Period.

_________________
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)

@umisef

Quote:

umisef wrote: @Dandy Quote: Where in which contract/agreement is it stated that they had to "announce they were done" - given that they obviously sent an OS4 CD to Amiga and given that it was in the news of all Amiga related media? Well, can we agree that publicly announcing that you are not done prevents the clock from being started?

As they were not contractually or legally obliged to do so, I fail to see the point of your question...

_________________
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)

@umisef

Quote:

umisef wrote: @Dandy ... Are you really that naive?

Not more than 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)

@COBRA

Quote:

COBRA wrote: Currently the biggest problem AD have is that they can't show that they have any rights under the contract as it's stated by Martinez and if they don't have rights under the contract their cancellation is not valid either. They're trying to solve this by coming up with a new story saying the contract was abandoned several years ago so that they don't have to show that they have rights under the contract. The problem is that it's perfectly clear they considered the 2001 contract to be valid in 2006 because they cancelled it and this is proven by the court documents they themselves submitted in the beginning so it's obvious they're making things up as they go and I don't really know how they plan to explain these things to the judge.

The problem is you believe its a new story, and its not a new story, Document 82-Exhibit H dated Feb 9, 2004, says that very story. So the story is over 4 years old, and not made up as they have gone along as you seem to be implying. In addition, since the agreement says they will treat Hyperion per the 2001 contract, if they had not cancelled the document per 2001 contract, Hyperion might have had a case to protest about, instead they did it by the book, and Hyperion decided to ignore the letter though admit they received it.

Quote:

] I think that the Itec case is pretty much the only hope AInc have at the moment, and is the most threatening to Hyperion. You have to ask yourself the question though that if the venue provisions of the 2001 agreement are not to be used for the 2003 Itec contract (which is why Itec was not joined in Washington), then what gives the NY court jurisdiction over Hyperion?

Itec is a New York company, if you sell a New York Company something, the venue is New York.
-Tig

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

@Tigger

Quote:

Tigger wrote: @COBRA Itec is a New York company, if you sell a New York Company something, the venue is New York. -Tig

If you buy something from Belgium, the venue is Belgium.

@COBRA

Quote:

COBRA wrote: @jorkany Quote: Haven't you ever had a mortgage where your contract was sold to another company? This sort of thing goes on all the time. I fail to see how a mortgage contract relates to a sw development agreement involving trademark/IP licenses and a clause which says specifically that the above cannot be done.

You dont seem to understand the main point here.

The contract says you cant do xx, you believe doing that is now illegal, it doesnt. Doing that violates the contract, but its not illegal. What happens if you violate the contract, in this contract, basically nothing, all you can do is use it as a reason to cancel the contract, you might be able to prove damages in some cases (though not this one), but doing something the contract says you cannot do isnt necessarily illegal.
-Tig

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

@Lou

Quote:

If you buy something from Belgium, the venue is Belgium.

That would depend if it's being specified in the beginning contract. Since all contracts between AI/KMOS and Itec with Hyperion and or Eyetech were specifically based on a particular state in the US, it's all US based. Hopefully we will hear something new on Feb 22nd.

Dammy

_________________
Dammy

@Dandy

Quote:

Point is they had an OS 4.0 CD.

They at some point prior to filing the document had a CD which contained something explicitly named a Developer PRE-release of something which, once it actually qualified for a release, would be called OS4.0.

Period :)

@Dandy

Quote:

Quote: Well, can we agree that publicly announcing that you are not done prevents the clock from being started? As they were not contractually or legally obliged to do so, I fail to see the point of your question...

The point of my question is how you manage to ignore that until November 2006, Hyperion as well as the contractors were talking about OS4 being done as a future event.

While your position of "Amiga should have worked out somehow that OS4 was done by the end of 2004" is certainly not universally shared (to be kind), it becomes much less believable yet when you add "despite Hyperion's and the developers' continued public assurances to the contrary".

Last edited by umisef on 20-Feb-2008 at 02:38 PM.

@Dandy

Quote:

Dandy wrote: This clearly shows that they were in possession of an OS 4.0 CD. Furthermore they had access to Olaf Barthel's CVS, as he stated in the court docs...

You are wrong on both points, we have no idea where the CD that scan was made from came from, and surely have no idea whether it was sent by Hyperion to AI as was your original premise and secondly, Olaf did not say they had access to his CVS in the court documents. Olaf said he gave them a copy of the original 3.1 OS source (not his modified source) when they took over ownership of the OS.


Quote:

What do you think laws are based upon?

Not morales in many/most cases. Its illegal by law to drive over 70 mph in the United States, I can think of no moral reason for that. You want Hyperion to win because you think they have white hats and McEwen is evil. I think AI will win because unlike the last 10 cases, they law is on there side this time.

Quote:

Quote: Tigger wrote: A joint press release by definition is an agreement, how much strength it will have in a court of law has yet to be seen. I'm afraid you somehow misread the definition...

You need to look up agreement, not press release and then realize that you not I are the one confused here.


Quote:

So you don't know if things changed in the last two years or not (its early 2008 meanwhile).

Which doesnt matter. If you have to pay 30 days after completion, and havent paid as of May 2006, surely you realize that its much later then 30 days after your mythical completion date of Dec 2004.

Quote:

I asked a clear question and would like to have an clear answer to it: Is "the developers not being paid" subject to the proceedings latterly - "Yes" or "No"?

I have no idea what you mean by that, a synonym of latterly is lately, none of the 3 definition seem to apply, so I can't give you a clear answer, because as far as I can tell its not even a clear question.


Quote:

Why do you think I have to tell the people what they already (should) know?

How would they know, Hyperion is saying we arent done yet, but Ai is supposed to know that really they are done?

Quote:

You must somehow have misunderstood me - I never wrote that Hyperion could claim that the 6 months were over as of May 3, 2002. Not sure why you think that... Quote: [quote] Because you think that Hyperion can claim anytime was the start of the 6 months and that Amino should just know they were done then and the 6 months timetable was started. Drop the "just" and I agree entirely that I think so.

Which means you believe that Hyperion can claim they were done on May 3, 2002, ie 6 months from when they signed the contract.

Quote:

Quote: And you apparently believe its ok to send receipts for the incorrect amount to cover up a shortage in payment. No - I believe that it is s not really a sign of competence to send receipts for the incorrect amount. It should not, but can happen...

And when it happens as it did in this case, when Hyperion sent a receipt saying that they had been paid $250 more then they had, and never asked for the $250 or corrected the receipt that Itec should be punished for that.



Quote:

Tigger wrote: ... [quote] I'm highly doubting that it matters at a court in the US what Hyperion (a Europe based Company) appoints with it's developers in Europe regarding the point in time they pay them.

Since it already been mentioned twice during the docs we've seen so far, I would strongly disagree with your assessment.

Quote:

I'd say this falls into the same category as continuing OS4 sales: its nothing that can't be compensated with money later, as you already repeatedly pointed out...

Since its one of the reasons for cancellation, it will do more then get them money.

Quote:

And you really belive all you need to know is in there and that the author is in the position to decide what you need to know and what not?

I hate to tell you this, but every native English speaking person is laughing and rolling on the floor now. Law 101 isnt a book in that context..
-Tig

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

@Lou

Quote:

If you buy something from Belgium, the venue is Belgium.

If Hyperion had sued first, thats actually true, but Hyperion didnt have a reason to sue Itec, they just gave them alot of money and received nothing in return.
-Tig

Last edited by Tigger on 20-Feb-2008 at 02:58 PM.

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

@Tigger

Quote:

Tigger wrote: @Lou Quote: If you buy something from Belgium, the venue is Belgium. If Hyperion had sued first, thats actually true, but Hyperion didnt have a reason to sue Itec, they just gave them alot of money and received nothing in return. -Tig

Perhaps then they should receive their money in return and call it a day.

@Lou

Quote:

Lou wrote: Perhaps then they should receive their money in return and call it a day.

If we are to believe Hyperions done in Dec 2004 story, they should have sent the money back in June or July of 2005, instead in 2006 they asked for more money, which further hurts there case with the buyback issue.
-Tig

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

@Tigger

Quote:

Tigger wrote: @Lou Quote: Lou wrote: Perhaps then they should receive their money in return and call it a day. If we are to believe Hyperions done in Dec 2004 story, they should have sent the money back in June or July of 2005, instead in 2006 they asked for more money, which further hurts there case with the buyback issue. -Tig

Really? When did anyone ask for any money back?
I'm not saying no one is owed interest...just saying there is nothing stopping the deal from *not* going through.

Meanwhile...

February 19, 2008, Doc #99 and Doc #100 are published on Justia.com.

#99 Hyperion's memorandum in opposition to Amiga Delaware's renewed motion for judgement on the pleadings. (See post #181)

Summary:
- Hyperion need not be either the registrant or the owner of the mark to assert a claim for false designation of origin.
- Hyperion is the successor and/or assign of Amiga Washington and may assert a claim for trademark infringement under the Lanham Act.
- Hyperion is the owner of AmigaOS pursuant to the terms of the 3 November 2001 Agreement.
- Hyperion has asserted common law trademark claims based on its rights as the first or senior user of the Amiga marks.

Some other spotted claims (under Facts section):
- The USPTO still has not registered five trademark applications filed by Amiga Delaware.
- Hyperion first began using the Amiga marks in 2001.
- Hyperion owns AmigaOS.
- Hyperion and Eyetech are not legal partners (Hyperion has standing to bring its trademark claims with or without Eyetech). But if the Court deems it feasible and/or necessary to do, Hyperion has no objection to adding Eyetech Group to the suit, and will do that in an amended set of counterclaims.


#100 Declaration of William A. Kinsel (re Doc #99 above)

This document shows as exhibits the results of a search on the USPTO (dated Feb. 18, 2008) attesting that the trademarks filed by AInc D are "pending" (there are no registered numbers yet), and that Hyperion filed an opposition.

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