@umisef

You're right. However, one should keep in mind that they are not asking for declaratory judgements from Hyperion alone. This is a dispute between the contractors in question on one side and Hyperion AND Amiga Inc. on the other. So, as individual legal parties of this conflict, Hyperion and their contractors might very well be in agreement.

Last edited by samface on 27-Feb-2008 at 03:06 PM.
Last edited by samface on 27-Feb-2008 at 03:05 PM.

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@damocles

Quote:

damocles wrote: @Hans Quote: Given that they haven't actually sued them, and the legal fees they are asked to pay half of are under ¤1000, I'd say that this isn't particularly damaging. Not financially damaging, but it's going to hurt Evert in the courts as AI-DE can now use this as an example of Hyperion failing to live up to the contract(s) since they were suppost to prevent this from happening.

This particular argument is rather old. Anyone can sue anyone, and Hyperion can't stop that. What matters is not that this lawsuit exists, but how Hyperion handles it.

I could be wrong, but my understanding is the licensing agreement's clauses regarding this are in place to prevent Hyperion's business practises from incurring legal action against Amiga Inc., and vice versa. In this lawsuit, Amiga Inc. is a defendant because of their own actions.

Of course, that didn't stop Amiga Inc. from submitting it as evidence.

Hans

Last edited by Hans on 27-Feb-2008 at 03:14 PM.

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@Rogue

Quote:

Rogue wrote: Our relationship to Hyperion is unchanged since years, it's a good one and I don't see much reason to change that anytime soon.

Good to hear.

Hans

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@Dandy

Quote:

Dandy wrote: @wolfe Quote: wolfe wrote: @Lou Hyperion acted illogically ... Not if they are consistent with the way they have acted since the beginning...illogically ... But HYPERION has definitely not acted illogically ... What now - "illogically" or "not ... illogically"? EDIT: emphasis added

Sarcasm . . . .

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@samface

Quote:

samface wrote: @Lou Quote: Lou wrote: @samface [quote] samface wrote: No, bottom line is that you can't fulfill the other party's obligations and then make use of that as a reason to seek compensation. Like, if the agreement we had would say that I had to give you a hair cut within 24hrs, you really think you can after 24hrs hold me liable for not fulfilling my part of the agreement when you shaved your head before I got a chance to cut it? The discussion is ridiculous. Hyperion got the source code they needed and well within a reasonable time frame. There is nothing about the circumstances that Hyperion could use as an excuse for not honoring their part of the deal nor as a reason to seek compensation from Amiga Inc. THAT is the bottom line.

The discussion is pointless because you fail to see that sources for 3.5 and 3/9 were not provided and the original developers had to be hired to redo what was done before but for a different platform.

Quote:

You state your opinion, I reply to it, and then you respond by saying that you don't care about my opinion? Well tell me, why should we care about yours then?

Quote:

Quote: As I recall, you replied to me when I wasn't replying to you. I never asked you what you thought of my opinion. However, when you address me as you did, I am almost obligated to let you know what I think of that. If your opinion was intended as a part of a private conversation... well, the fact that you are posting in a public forum might have confused me somewhat. For as long as you post here, be prepared that people might let you know what they think of it, regardless if you aim it at them in person or not.

Then please accept the fact that your opinion doesn't mean much and neither does mine.

Quote:

Fine, don't speculate then. But when you do, becasue I know you will do it anyway, don't be so surprised that others might respond to your speculations with their take on things. We all got the same right to express our opinions here.

Quote:

Quote: My "speculation" is just a plain language interpretation of Hyperion's claims. Feel free to point out what I have "speculated". You speak of KMOS attempts to damage Hyperion, you speak of ridiculous demands, you say KMOS can only bleed for so long and "Penti finally got frustrated", you speak of Penti as not "having intimate knowledge of all of Amino/KMOS's dealings, otherwise he probably would have resolved this with cold, hard cash a long time ago", you speak of the lawsuit as a "reality slap" for Penti. This is far from facts and "a plain language interpretation of Hyperion's claims", IMO.

That just shows your failure in reading comprehension.
Where I stated such things, the phrases similar to "the way I see it" and such preceded it. If you can't figure I where I am stating facts from the case and where I am stating my personal opinion then any future conversation with you is pointless especially when you are a self-described "nitpicker". As I've said, you argue for argument's sake.

Quote:

No, they don't pay $25,000 for the OS. That's just a symbolic sum for whenever Amiga Inc. would decide to take development back in house. What Hyperion got was an exclusive royalty free license to develop, market, distribute and sell AmigaOS4. You think Amiga inc. should give them the profit from the sales AND pay for their development expenses? Not even Amiga Inc. are that stupid. Considering the buyback clause was the only string attached, it was a quite favorable deal for Hyperion. So no, their not getting just $25,000, which btw turned in to $40,000, they also got all the profit from AmigaOS4 sales.

Quote:

Furthermore, it was a deal drafted by Ben Hermans, at that time managing partner of Hyperion. They knew the terms of the agreement they wrote very well. They shouldn't have signed it if the terms were not acceptable. You don't draft the agreement yourself, sign it, and then complain about the terms. It's not how things work.

Quote:

You are throwing useless numbers out there again. Specifically, $40,000. The only number you need to know is $24,750. Remind me - who is speculating again?

Look, the receits are all in the court docs. Like I've tried to explain, the number is acutally NOT of importance. You really don't see how weak this is as an argument, do you?
[/quote]
It's not my place to determine the argument's strength, only the judge's. Once again, the $24,750 is a fact, regardless of your opinion of it.

Quote:

Quote: You are correct - Amino should have never signed a deal they couldn't honor when they said they would provide Hyperion with the sources to OS3.5 and OS3.9... False. The contract says Amiga Inc. has to give them "neccessary source code". The mere existence of AmigaOS4 proves that they obvoiusly got the source codes they needed. Besides, even if this would be a valid argument, isn't this the very same argument Hyperion is using for why they are not able to provide Amiga Inc. with anything but object code for AmigaOS4, ie not having obtained the neccessary rights to it from third party contractors?

Have you ever developed anything? I assume that you haven't, otherwise you would see the err in your logic. Anything can be developed from scratch. The issue is TIME and COST.

Quote:

Quote: So let's get this staight about the contract... Amiga can pay no less than $25,000.00 and get whatever sources Hyperion could secure with no additional money and has 6 months to release a substantionally better OS. Not only did they fail to pay $25,000.00 but I don't see OS5 being released in this decade. Oh, I'm wrong, they released OS5 at CES in January but had to call it AA2 because Microsoft would have had to spank them for being naughty boys. Yes, that "Invasion" demo looked much better than OSX... 1. Hyperion has exploited and made profit, free from royalties, on the improvements they have made. If they want payment from Amiga Inc. for making those improvements, they should also hand over any money made from the sales. I mean, given a scenario of where Amiga Inc. would pay for the development, Amiga Inc.. would also be legally entitled to any profit made from those developments. However, the contract clearly states that development would take place at the sole expense of Hyperion. 2. The six month time period where Amiga Inc. would have to release a new version of the AmigaOS would naturally not be started until Hyperion actually hands over the AmigaOS4 sources. So why don't they just hand over the sources and let their rights expire due to their inability to deliver a new version that you describe? 3. The once again repeated argument about a missing %1 of the $25,000 fee has already been debunked. They kept the money and acknowledged what it was for. They can't just many years late point at a clerical error of 1% and think that would void any and all of their obligations. Both KMOS and Itec have as soon as the clerical error was discovered, superseeded their payment obligations by quite a margin. Besides, the interest on the money they got would be enough to correct the missing sum alone. Can we *please* get past this? 4. The description of AA2 as AmigaOS5 has been officially corrected on Amiga Inc.'s website, AA2 and AmigaOS5 are two seperate products that are just API compatible. I guess that's why Bill McEwan is the CEO rather than a programmer.

1) can you reprint Hyperion's financials for us all since you obviously seem privy to them
2) they didn't pay for the sources
3) the following is my opinion: in early 2004, I believe Hyperion became privy to the shell game and started disputing ownership OR they informed KMOS of the actual costs of the sources that they secured via contracts and KMOS was unwilling to foot the bill..............or both..... The judge can figure it out.
4) finally logic sets in...

Quote:

There are arrangements to be made that would ensure a safe exchange without anyone giving anything on credit. If such simple measures would have been taken, it would actually been in Hyperions favor in court now if Amiga Inc. would've failed to pay. So that's a poor argument, really. And please stop pretending to know everything with regards to the Kent Center. Amiga Inc. has their explanation for why the deal didn't go through, the City of Kent has theirs. Which is true is irrelevant since like I said, their credit rating is a non-issue and a failure of payment on Amiga Inc.'s behalf would've actually helped Hyperion's case.

Quote:

Quote: LOL! LOL! LOL! LOL! LOL! Can you read? In the court documents, Hyperion is citing $1,000,000 in expenses. So if $2,000,000 were real, don't you think Hyperion would have taken the money and run? It seems to me you argue for the sake of arguing and like others here - ignore certain facts that don't support your argument. The only party that has acted illogically is Amino/ITEC/KMOS. Well, the thing is, I don't think Hyperion, like Evert Carton himself said, is in a position to give Amiga Inc. any source code at all. It doesn't matter if Amiga Inc. would give them millions and millions of dollars. So, it isn't about Amiga Inc.'s inability to pay or not to begin with. THAT is a theory which does actually support both sides in the ongoing litigation.

Not currently no, but I believe he would pay them based on past experiences. For instance, how many years have the Friedens been doing business with Hyperion now? Atleast we somewhat agree on something.

Quote:

Quote: It seems their followers have adopted their train of thought... First you claim that you have "just a plain language interpretation of Hyperion's claims" and now you accuse me of adopting Amino/ITEC/KMOS' train of thought? LOL! Here, have a mirror.

I'll take your mirror.
[looks at mirror]
Hmmm....I need a haircut.

@samface

Quote:

This is a dispute between the contractors in question on one side and Hyperion AND Amiga Inc. on the other.

The only reason to put Hyperion on the other side is if they dispute the developers' version of the subject matter.

Amiga and Hyperion have explicitly not formed any sort of partnership; They also most certainly do not act in a united way. If the dispute was with Amiga only (over what, God only knows --- AFAICT, Amiga has never made any claims of ownership of the various source codes; They have merely pointed out occasionally that Hyperion is obliged to provide said ownership), then Amiga only would be on the side of the defense. They are not.

Quote:

So, as individual legal parties of this conflict, Hyperion and their contractors might very well be in agreement.

\

Which is why they are on opposing side in these legal proceedings, right? The developers are plaintiffs, and Hyperion are defendants.....

@Lou

Quote:

Lou wrote: So why didn't Amino ask for a new contract when they realized H&P weren't going to give up the sources? Instead, for Hyperion to still deliver an OS despite different and buggy hardware and no original sources (which probably contained documentation describing function and purpose, even if the source itself was out-date, would lead to reduced "new" development time) they contracted the original developers individually. That responsibility should have fallen in Amino's lap, not Hyperion's. Now Hyperion wants to be compensated for that and I don't blame them. They DID deliver an OS, what has Amino/KMOS delivered?

Maybe because at the time Hyperion didn't care . . . as they didn't cancel the contract.

Quote:

Amino feinted death. What other choice did Hyperion have? You can't sue someone who is dead. Since Amino's miraculous recovery from certain death - suprise, they got sued.

Not by the legal definition.

Quote:

Quote: But HYPERION has definitely not acted illogically . . . . Once again, I appreciate the clarity you have provided in this instance.

Sarcasm

Quote:

Robin Hood was considered a thief. Yes, he stole, but I liked him anyway.

Me too . .

Quote:

When I walk into a store to buy something. Nothing is stopping the store from returning my money and turning away my business. The fact that Hyperion has, up until now, kept the money is the issue. I don't see an OS changing hands there.

Around here you would get sued for turning my business away . . . Doesn't mean I'd win though . . Well a court will decide that I do believe . . .

I don't feel sorry for Hyperion - this mess is their doing. I don't feel sorry for AI - this mess is also their doing. But I do feel a little sorry ( ) for ITEC.

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@samface

Quote:

Actually, that was quite funny. I laughed out so loud when I read it last night that I woke up my 3 months old son. :D

Congratulations!

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@Rogue

Nice spin control, but the cat about your lawsuit has been out of the bag for some time now.

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@jorkany

Quote:

jorkany wrote: @Rogue Nice spin control, but the cat about your lawsuit has been out of the bag for some time now.

What cat are you talking about? If you actually read the lawsuit document (I translated the basic claims here), you'd realize that, as far as the contents of the lawsuit goes, what he says is accurate; it really is asking for a declarative judgement on ownership. All other theories regarding what it's about were created by people who never read the documents because there is no complete English translation, and hence, started making stuff up.

Whether their relationship with Hyperion is as rosy as he claims, cannot be determined from the lawsuit.

It would appear that the cat agrees with Rogue.

Hans

Last edited by Hans on 27-Feb-2008 at 10:07 PM.

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@Rogue

Quote:

Rogue wrote: Our relationship to Hyperion is unchanged since years, it's a good one and I don't see much reason to change that anytime soon. I am not going to get drawn into any of these ridiculous discussions here, but I will say only the following: The lawsuit that we have going is merely asking for a declaratory judgment on the copyright of our respective source codes. It does neither seek damages, nor payment, nor anything else of that kind. The lawsuit asks the involved parties for a clear statement of ownership/copyright which is legally binding. Nothing more, nothing less. So, everybody trying to badmouth Hyperion using the lawsuit that we started, please stop it right there. There is no substance to it. We're not being misused or ill-treated or any such nonsense, and we are not asking for payment or damages. To make this clear even to those that have difficulties understanding the above: Lawsuit not asking damages. Lawsuit only confirming copyright. I hope this clears up any misunderstanding, either intentionally or otherwise. Thanks for reading. EDIT: And BTW, Dammy, no this is not about any contractual dispute. Read what I wrote here, and you might understand. If not... well.. At least I tried.

Well now we know it is a "lawsuit", so regaurdless of all other statements, you are suing Hyperion/AInc. Perhaps it is still amicable between parties (we have your word that it is with Hyperion) but the fact remains there is the Lawsuit, therefore suing. If declatory judgement is necessary for clearing up ownership questions (even when both parties agree on who owns something) I will need to sue my bank that I just paid for a rent house, I probably should sue you just in case, well maybe another six billion people. The case has a deeper meaning than just "Hyperion says the kernal is ours and we want a judge to say it also", and just tell the complete truth out right and we don't have to go through all this we are suing, no we aren't, but wait we kinda are crap. If the documents were not online would we have gotten a strait answer, or have we yet?

@Lou

Quote:

Lou wrote: The discussion is pointless because you fail to see that sources for 3.5 and 3/9 were not provided and the original developers had to be hired to redo what was done before but for a different platform.

Again, the contract doesn't say Amiga Inc. had to provide the AmigaOS3.1/3.5/3.9 source code. It says Amiga Inc. had to provide "the neccessary source code". The existence of AmigaOS4 proves Hyperion got the sources they needed to complete AmigaOS4.

Furthermore, whom secured the AmigaOS3.x source code is irrelevant because any costs or damages as a result of Hyperion's initiative to take upon themselves to fulfill Amiga Inc.'s obligation to obtain neccessary source code would be self-inflicted. Not once were they prevented from stopping and saying "no, we won't do anything until you hand over the source code you promised us". Amiga Inc. is by no means obligated to compensate Hyperion for doing what Hyperion should've just let Amiga Inc. do in the first place.

Quote:

Quote: You speak of KMOS attempts to damage Hyperion, you speak of ridiculous demands, you say KMOS can only bleed for so long and "Penti finally got frustrated", you speak of Penti as not "having intimate knowledge of all of Amino/KMOS's dealings, otherwise he probably would have resolved this with cold, hard cash a long time ago", you speak of the lawsuit as a "reality slap" for Penti. This is far from facts and "a plain language interpretation of Hyperion's claims", IMO. That just shows your failure in reading comprehension. Where I stated such things, the phrases similar to "the way I see it" and such preceded it. If you can't figure I where I am stating facts from the case and where I am stating my personal opinion then any future conversation with you is pointless especially when you are a self-described "nitpicker". As I've said, you argue for argument's sake.

Speaking of reading comprehensions... where did I say those statements of yours would be claims of facts? When I say that something would be far from a fact, I mean exactly that.

The question was wether you were refraining from speculations and insisting on "a plain language interpretation of Hyperion's claims" or not. From what I can tell by your response, you agree that those statements were just your opinion and speculations rather than "a plain language interpretation of Hyperion's claims".

And no, I'm not a self-described nitpicker. It's been suggested to me that this is what certain people think of me and it happens that I occasionally am self-ironic.

Quote:

It's not my place to determine the argument's strength, only the judge's. Once again, the $24,750 is a fact, regardless of your opinion of it.

Your convinient reference to strictly the facts whenever it suits you has become rather apparent now...

It is also a fact that the interest on $24,750 over the years from when the payments was made to when AmigaOS4 was finally released for all the target hardware platforms on 30th of November last year was more than enough to compensate for the missing $250. It is also a fact that Hyperion issued an invoice to Amiga Inc. for invoking the buyback-clause that was also not the correct amount, making the clerical error just as much Hyperion's. It is also a fact that Hyperion acknowledged the payment and kept the money just to not say anything about the missing money until now when Amiga Inc. sued. These facts are not unrelated, you know.

Quote:

Quote: False. The contract says Amiga Inc. has to give them "neccessary source code". The mere existence of AmigaOS4 proves that they obvoiusly got the source codes they needed. Besides, even if this would be a valid argument, isn't this the very same argument Hyperion is using for why they are not able to provide Amiga Inc. with anything but object code for AmigaOS4, ie not having obtained the neccessary rights to it from third party contractors? Have you ever developed anything? I assume that you haven't, otherwise you would see the err in your logic. Anything can be developed from scratch. The issue is TIME and COST.

Your assumptions are wrong and to apply programming logic to legal matters is also wrong. You can't make legal claims on what programming logic dictates. It may not have been what was intended, but it was after all Hyperions own managing partner who drafted the contract, saying that Amiga Inc. only needed to provide "neccessary code" without specifying what source codes was neccessary.

And once again, Hyperion had every opportunity to say "no, we won't do anything until you give us the source code you promised". Any TIME and COST that Hyperion spent on fulfilling Amiga Inc.'s obligations would be self-inflicted. The contract doesn't impose any obligation on Hyperion to do any such thing, Hyperion just did it any way out of their own free will.

Quote:

1) can you reprint Hyperion's financials for us all since you obviously seem privy to them

I don't need to know Hyperions financials to know that Hyperion have been selling AmigaOS4 free from royalties to Amiga Inc. and that is the extent of my claim, no more.

Quote:

2) they didn't pay for the sources

Please stop repeating this argument as if it hasn't been debunked several times already. Repeating it isn't going to make it of any more bearing. Take a good look at Filing 72 > Attachment 2 > Exhibit C where Hyperion's issued an invoice to Itec pursuant to article 3.01 of the November 3, 2001 agreement. Look at the amount, still think it was a clerical error solely on Amiga Inc.'s behalf?

A payment was made and *both* parties acknowledged it as payment pursuant to article 3.01 of the November 3, 2001. That is a fact.

Quote:

3) the following is my opinion: in early 2004, I believe Hyperion became privy to the shell game and started disputing ownership OR they informed KMOS of the actual costs of the sources that they secured via contracts and KMOS was unwilling to foot the bill..............or both..... The judge can figure it out.

Early 2004? They were as aware of the dealings between Amino, Itec and KMOS as Bill McEwan himself. In *every* ownership transfer, Hyperion was not only notified but even renewed the contract with the new owners. This has become clear from the documents of the ongoing litigation. There is not even the slightest room for speculation wether Hyperion knew about the ownership transfers or not. Have you even bothered with reading the court documents?

Quote:

Quote: Well, the thing is, I don't think Hyperion, like Evert Carton himself said, is in a position to give Amiga Inc. any source code at all. It doesn't matter if Amiga Inc. would give them millions and millions of dollars. So, it isn't about Amiga Inc.'s inability to pay or not to begin with. THAT is a theory which does actually support both sides in the ongoing litigation. Not currently no, but I believe he would pay them based on past experiences. For instance, how many years have the Friedens been doing business with Hyperion now? Atleast we somewhat agree on something.

Ironicly enough, the reason Hyperion isn't able to give Amiga Inc. the source code is most likely to be because they can't afford buying it from their contractors. So, if Amiga Inc. want to take a shot at paying them, why not let them? It surely couldn't hurt them to try, right?

Last edited by samface on 28-Feb-2008 at 01:52 AM.
Last edited by samface on 28-Feb-2008 at 01:51 AM.
Last edited by samface on 28-Feb-2008 at 01:50 AM.
Last edited by samface on 28-Feb-2008 at 01:47 AM.

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@samface

Quote:

The existence of AmigaOS4 proves Hyperion got the sources they needed to complete AmigaOS4.

It proves only there was knowledge enough to do it by THEMSELVES, not they have the sources they needed FROM AMIGA to complete it.

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@stew

I can't see what you're trying to get at here.

@umisef

Well ok, let's just say that I tend to believe Rogue and Entilzha when they say thay have good relations with Hyperion for the simple reason that people in disagreement/dispute usually don't proclaim their good relations in public. Furthermore, they are after all not seeking damages or compensation of any kind. And then, given that we're not familiar with Belgium legal practices, what do we know about what it means to get a declaratory judgement in Belgium? People could be doing it every year for every possession they have as a part of their tax return for all I know.

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@samface

Quote:

Again, the contract doesn't say Amiga Inc. had to provide the AmigaOS3.1/3.5/3.9 source code. It says Amiga Inc. had to provide "the neccessary source code". The existence of AmigaOS4 proves Hyperion got the sources they needed to complete AmigaOS4.

The source code wasnt provided by Amiga Inc.

@pixie

Quote:

pixie wrote: @samface Quote: The existence of AmigaOS4 proves Hyperion got the sources they needed to complete AmigaOS4. It proves only there was knowledge enough to do it by THEMSELVES, not they have the sources they needed FROM AMIGA to complete it.

Logic dictates that if they would be missing *anything* necessary for completing AmigaOS4, AmigaOS4 couldn't possibly be complete. If knowledge of how to acquire the source code themselves was enough, that just renders the source code that Amiga didn't supply as not necessary.

Furthermore, who did what has NO bearing to whom's obligations were fulfilled or not. Just like Hyperion were able to hire contractors to fulfill their obligations, Amiga Inc. could have someone else to fulfill theirs.

Hyperion had no obligation and was not hired by Amiga Inc. to do it but did it anyway completely on their own initiative. That's like if you'd come home to me and wash my car and then expect me to pay you. I'd just say thank you for washing my car but I never asked you to do it for me, now did I? And then, if it would so happen to be that I had just made a deal with my wife to wash the car, I would be a very happy man and claim the reward for having the car washed. I'd still owe you nothing, sucker.

The same thing goes here, no part of the agreement grants Hyperion any compensation in case they'd decide to acquire the neccessary source code without Amiga Inc.'s aid. End of story.

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@jahc

See post #617.

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@pixie

Quote:

pixie wrote: @samface Quote: Actually, that was quite funny. I laughed out so loud when I read it last night that I woke up my 3 months old son. :D Congratulations!

Thank you! It is one of the few really great accomplishments in my life (so far).

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@samface

Quote:

Logic dictates that if they would be missing *anything* necessary for completing AmigaOS4, AmigaOS4 couldn't possibly be complete. If knowledge of how to acquire the source code themselves was enough, that just renders the source code that Amiga didn't supply as not necessary.

What the hell kind of logic is that? The source code was still neccesary, they just couldnt get it from Amiga Inc.