@syrtran

Quote:

However, later actions by AInc seemed to show them not caring about Hyperion using it by themselves.

Hyperion and Eyetech collectively were granted a license to use it. So Hyperion and Eyetech collectively may decide to use it on Hyperion's website; There is no reason for Amiga to suspect that such use was unilateral and did not have approval of Eyetech. And even if they suspected it, Amiga is not obliged to care --- as far as they were concerned, the use *could* have been in accordance with the license, so unless Eyetech has an objection, everything is cool, because it makes no difference to anyone.

Now, however, Hyperion is suing Amiga over something that they claim they have a right to flowing from that license. The license, however, was to Hyperion and Eyetech collectively.
So you can say "whether it *is* done with the agreement and approval of Eyetech doesn't matter, because it *could* be done so, just like above". However, unlike the simple case of Hyperion using trademarks on their website, a court case has an outcome, and consequences. If Amiga prevails, they get to recover court costs from *someone* --- and as for the case to have any validity, that "someone" would have to be the AmigaOne partners, Hyperion could be incurring a debt here on behalf of a (potentially unaware) Eyetech. Alternatively, if Amiga loses, and the claims are granted, the trademarks will be transferred to (or owned by) someone. Again, it is rather important to know who that someone is.

@umisef

Quote:

There are plenty of arguments for Hyperion owning *their work*[1]. There are none whatsoever that I can see for Hyperion owning "AmigaOS 4.0", which is a combination of that work and the pre-existing IP.

I don't know either which mechanism makes Hyperion - supposed to be a world-wide, free and perpetual licencee of the Amiga trademarks - the OWNER of Amiga (trademarks).
But see my theory on post #208. Hyperion's arguments seem close to that.
One of the key (argument in #99) is: Hyperion was a senior user of the trademarks before KMOS (and later A(D)).

Last edited by AmigaPhil on 21-Feb-2008 at 02:12 AM.

This is all just Smoke and Mirrors. The trial will settle the issue. Or should I say Trials . . .

Let's go to trial and get this over with. Let's start with NY. That will be the fastest way to end this mess . . .

Hyperion DID or DIDNOT sell it to ITEC.

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@AmigaPhil

Quote:

One of the key (argument in #99) is: Hyperion was a senior user of the trademarks before KMOS (and later A(D)).

Of course, there is at least one even-more-senior user out there --- Amiga Washington, a.k.a. Amino.
Amino believes that they sold those trademarks to KMOS. KMOS believes that they bought those trademarks from Amino. Thus, both KMOS and Amino believe that the trademarks are with KMOS, and not with Amino.

Hyperion just believes that the trademarks are not with Amino anymore; Yet at the same time they believe that they haven't been transferred to KMOS. How Amino (which most certainly used the trademarks prior to November 2001) lost those trademarks without KMOS acquiring them, Hyperion does not explain. How Hyperion's use of the trademarks would have precedence over the use by, say, Haage & Partner ("AmigaOS 3.5", "AmigaOS 3.9", "AmigaOS XL"), Hyperion does not explain.

I have to day, after the sheer beauty of the "Itec Contract" obfuscation, I find this latest set of dodgy arguments rather disappointingly transparent...

@AmigaPhil

Quote:

AmigaPhil wrote: Those are temporary (serial) numbers. AInc. (D) is not yet granted any registered numbers.

Not according to Tess, those are trademarks owned by Amino to KMOS and legally owned by KMOS under its new name Amiga Inc. (see document 61 for more info or go to the USPTO site) They are arguing over 5 other trademarks, all of which are based on 3 of the previous uncontested ones, and which Hyperion says they should own instead, since 4 of them are derivation trademarks, Hyperion has no case there and as for the Boing Ball.

Quote:

Quote: Since KMOS/AI(D) is the legal owner of AMIGA as a name for computers and computer products Is it ? Really ?

Yes, really see document 61, which shows the trademarks which AI(D) aka KMOS owns, see document 60 for the ones they are fighting about, note the previous assignment list of the ones they are fighting about, it includes the ones they do indeed own on 4 of the 5 cases.

Quote:

I don't know if Hyperion pretend to be the first user of the " Boing Ball" or not, but I wonder too how they can now claim to be THE legit owner of it.

They have no chance, if they were actually to win against KMOS on the case, NASAU (the founder of Amiga.org) would take it away from them as we can easily prove use before they existed.
-Tig

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@damocles

Quote:

damocles wrote: @Dandy Quote: Isn`t there something similar in US law? No. Dammy

Too sad.
Would certainly help to bring this drama to an quick end...

_________________
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

Dandy, I find this particular kind of reasoning quite distrurbing. It's as if a girl who gets raped would loose all her rights to sue the one who raped her because she failed to pay a parking ticket once. I think it's a good thing that they stick to what is of relevance to the case at hand. Please don't encourage the kind of reasoning that would lead to the example I made.

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MINDRELEASE.net - The Non-Commercial Network of Digital Arts.

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@umisef

Quote:

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

This is only about the trademark dilution claims, I never thought they had too much of a chance on that, but it's an interesting document and must be like a rope around AInc's neck that they currently don't have any of their Amiga trademark applications granted by the USPTO, so they'll be fighting tooth and nail to get these claims dismissed.

@Tigger

Quote:

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.

Document 82-Exhibit H is a letter from McEwen to Hyperion in which he says he intends to negotiate a new contract, something that obviously did not happen, otherwise KMOS would not be cancelling the 2001 agreement in 2006 so this does not support their latest claim that the 2001 agreement was abandoned and replaced by a new agreement.

Quote:

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

I'm not sure if that is the case, can you point out what law says this is so?

Quote:

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.

This is getting silly. What you're basically arguing is that writing clauses into contracts, for example ones which state the rules of termination and assignment is useless as you can break them and get away with it. Do you actually think about what you write before? The main reason why Martinez denied AInc's motion for pleriminary injunction was because they could not show that they're the successor of interest and there was no signed agreement by all parties for an assignment of the contract (both of which are written as a requirement in the contract) so if you're going to keep arguing that these clauses are not enforcable you might was well go and argue with the judge.

Last edited by COBRA on 21-Feb-2008 at 07:58 AM.

@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: You have your beliefs and I have mine. In the end we will see who was closer to reality. You said Olaf said something in the court documents, ...

Don't be a pettifogger!
The relevant part was not "who said it at what opportunuty" - it rather was that it was said at all.

Quote:

Tigger wrote: Quote: White hats - like the kukluxclan people? Nahhhh - I don`t think so... And I don`t think McBill is evil by default either - its just that he scammed me and therefor I don`t trust him anymore. No Western reference, good guys wear white hats, bad guys wear black hats.

Ah - I see...

Quote:

Tigger wrote: Bill scammed alot of people, again whether he scammed people has nothing to do with legally whose right here, thats something you dont seem to understand,

I understand that very well.
Its just that we have different views on who is legally right here...

Quote:

Tigger wrote: Hyperion scammed all the developers, that doesnt seem to bother you.

They didn't scam me - that's what counts for me.
If all their developers feel scammed, I'm confident they take appropriate actions.

Have you ever thought that they might prefer to wait until the bread is readily baked and share it then with the the bakerman, instead of killing him out of hunger bevor he can take the bread out of the oven?

Quote:

Tigger wrote: Quote: And I wholeheartedly whish you`re wrong here and US law does not honour/support their scams. There scams have nothing to do with this case, they surely wont influence the result of this case.

We will see.
(Keep in mind that I see it as well as a scam what they are trying to pull off with Hyperion.)

Quote:

Tigger wrote: Quote: Well, you claimed that a press release by definition is an agreement. For me that means I have to look up "press release" - and that`s what I did. If you mean it the other way round, you should write it that way - I`m not so good at mind reading, you know... No, I said a joint press release is by definition an agreement,

That does not change the fact that you still need to understand that a press release is a press release - not matter if its joined or not.

Quote:

Tigger wrote: I stand by that, you need to understand what an agreement is and understand what a joint press release is,

No - its you who needs to understand that a press release is a press release - no matter if its joined or not - as I stated above.

Quote:

Tigger wrote: to understand that is a correct statement.

How can the process of understanding be a statement?


Quote:

Tigger wrote: Your question "Is "the developers not being paid" subject to the proceedings latterly - "Yes" or "No" " makes no sense in English,

Then maybe someone here who understands German can find a better translation of what I was trying to say.

Here it is in German:
"Ist "die Entwickler werden nicht bezahlt" neuerdings Gegenstand dieses Gerichtsverfahrens - "Ja" oder "Nein"?"

Quote:

Tigger wrote: I dont mind answering the question, I just dont see a question that makes sense.

Then get it translated from German, try to understand it and come back once you understood...

Quote:

Tigger wrote: Are you sure latterly is the word you were looking for?

At least http://dict.leo.org/ tells me "latterly" or "newly" or "of late" all have the same meaning in German language: neuerdings.

Enter "neuerdings" as search phrase and see yourself..

Quote:

Tigger wrote: Quote: Had they followed the news on the Amiga related media they had known when A1/Os4 started selling to end users. I`m afraid they will have a hard time claiming they believed all those sales were to developers... Total sales were less then 1000 units,

I seem to remember to have read it here on AW that the total number of "next gen Amiga hardware" sold was somewhere between 2000 and 3000 units.

Quote:

Tigger wrote: ...and even your example CD says pre-release...

It says developer pre-release, to be precise...

Quote:

Tigger wrote: Quote: Yeah - and AminoAInc and and KMOSAInc as well. Send all the gangsters to prison! See thats the problem with you on this, you dont care what the law says, you want your pound of flesh from AI whether they are legally right or wrong.

Wouldn't there be the smileys (which you appearently have missed) I would agree with you...

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Dandy
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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:

"Ist "die Entwickler werden nicht bezahlt" neuerdings Gegenstand dieses Gerichtsverfahrens - "Ja" oder "Nein"?"

So you want to know whether the payment or non-payment of developers has recently become subject to this case.

Actually, what you probably wanted to ask is whether it has become *THE* subject of the case (i.e. "Hauptgegenstand"). The answer to that would be "no", of course.

However, the answer to the first is a resounding "yes" for as long as Hyperion says "we finished in 2004" as part of the case --- because the non-payment in 2004/2005/2006 is a clear indication that Hyperion's claim is revisionist. Which is highly relevant and thus subject to the case at hand.

@Dandy

Quote:

The relevant part was not "who said it at what opportunuty" - it rather was that it was said at all.

Well, yes, and according to you, it was stated that Amiga had access to the OS4 CVS.

Tigger pointed out that this has in fact not been stated; That in fact not even the pre-OS4 CVS was the subject of Olaf's statement, but rather the pre-Olaf original 3.1 sources.

So, again --- can you point at any statement from anyone which indicates that Amiga, any Amiga, ever had access to the OS4 CVS? Particularly around end of 2004, when according to you they should have used such access to work out that "it" was "done"?

@samface

Quote:

samface wrote: @Dandy Dandy, I find this particular kind of reasoning quite distrurbing. ...

Then why do you read it?

_________________
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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)

@thread







(From xkcd )

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(No, I didn't type that with a straight face.)

@samface

Your example is totally unrelated and out of focus. "Rape" is a crime and so criminal law.
We are talking about civil law.
That's even in the USofA totally incommensurable

@Yo

This fits so perfectly. Unbeleivable.

@Yo

Very entertaining site. I think this cartoon is also appropriate :)

@umisef

Quote:

umisef wrote: @Dandy Quote: The relevant part was not "who said it at what opportunuty" - it rather was that it was said at all. Well, yes, and according to you, it was stated that Amiga had access to the OS4 CVS. ... So, again --- can you point at any statement from anyone which indicates that Amiga, any Amiga, ever had access to the OS4 CVS? (emphasis added by me)

justia.com; pdf #5, page 24-25 (Exhibit A, Design Goals of OS 4, General Notes):

"General Notes

Olaf Barthel will function as the build master...
...
All parties involved should have read access to the CVS at all time, and also have access to nightly/weekly builds of the OS.
..."

This is what I call a clear indication...

Quote:

umisef wrote: Particularly around end of 2004, when according to you they should have used such access to work out that "it" was "done"?

"...should have read access to the CVS at all time..."

And I saw nothing so far that indicated AInc had no access...

_________________
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: "Ist "die Entwickler werden nicht bezahlt" neuerdings Gegenstand dieses Gerichtsverfahrens - "Ja" oder "Nein"?" ... Actually, what you probably wanted to ask is whether it has become *THE* subject of the case (i.e. "Hauptgegenstand"). The answer to that would be "no", of course. ...

Yes - thanks for clearing this up.

_________________
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)

@Yo

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You can crack anything with your head, even the head itself.
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...proud AOS user since 1993
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