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PosterThread
matthey 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 23-Mar-2021 19:16:53
#1101 ]
Super Member
Joined: 14-Mar-2007
Posts: 1139
From: Kansas

Quote:

TRIPOS wrote:
The document "301" that is linked to in post 1084 does a great job in explaining and arguing their standing point based on evidence after evidence. A masterpiece. Everyone should read that document.


I find most of the arguments weak. The first part introduces interpretation outside of the contract wording itself. The rights granted to Hyperion by the 2009 settlement are extremely broad, especially paragraph 1(b). I believe AmigaOS 3.1.4 is legal if the settlement contract is valid. Hyperion started with AmigaOS 3.1 and developed a new AmigaOS version. The contract does not require it to be for PPC or be called AmigaOS 4 or above.

Quote:

Without prejudice to any Existing License Agreements listed on Exhibit 1, the Amiga Parties hereby grant Hyperion (at Hyperion's sole expense) an exclusive, perpetual, worldwide and royalty-free, transferable right and Object Code and Source Code license to the Software in order to use, develop, modify, commercialize, distribute and market the Software in any form (including through sublicensing), on any medium (now known or otherwise), through any means (including but not limited to making AmigaOS 4 available to the public via the internet) and for any current or future hardware platform.


The settlement contract is so one sided in Hyperion's favor that there are very few requirements for Hyperion to violate which would constitute a "material breach" (while Amiga party contract requirements are numerous to the point of being oppressive). It appears the plaintiff's lawyer found one though.

Quote:

Hyperion agrees and covenants that it will not institute any action, claim or proceeding anywhere in the world . . . (B) challenging . . . (ii) ownership of the Licensed Marks by any Amiga Party or any successor . . . (a “Hyperion Prohibited Action”), unless the challenged activity constitutes a material breach of this Agreement, including but not limited to any material infringement by the Amiga Parties, by a successor to any Amiga Party, by a Purchaser or by a licensee of the licenses granted to Hyperion pursuant to this Agreement.


I believe this covenant was violated by Hyperion and could constitute a "material breach" of contract invalidating the whole contract. I have doubts that IP violations outside of those mentioned in the contract would be grounds for invalidating the contract even though they may be grounds for a separate lawsuit. I still wonder what Amiga parties obtained from this settlement contract. I can't see where they obtained anything they did not already have while they gave the keys to the castle to Hyperion for free. Where is the quid pro quo in the contract?

Last edited by matthey on 23-Mar-2021 at 07:29 PM.
Last edited by matthey on 23-Mar-2021 at 07:19 PM.

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geen_naam 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 23-Mar-2021 19:37:52
#1102 ]
Regular Member
Joined: 29-Nov-2003
Posts: 111
From: The Netherlands

Never mind. Wrong Matthew

Last edited by geen_naam on 23-Mar-2021 at 07:39 PM.

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amigadave 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 23-Mar-2021 23:13:44
#1103 ]
Super Member
Joined: 18-Jul-2005
Posts: 1724
From: Lake Shastina, Northern Calif.

@matthey

I couldn't agree more, specially your last paragraph about the lack of ethics and Ben Hermans predatory behavior being his standard mode of operation.

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amigadave 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 23-Mar-2021 23:37:16
#1104 ]
Super Member
Joined: 18-Jul-2005
Posts: 1724
From: Lake Shastina, Northern Calif.

@thread

Many users will disagree with me, and that is okay, they are entitled to their own opinions, but I for one am happy to read that Cloanto has NOT caved in, and let Hyperion and Ben Hermans off the hook AGAIN! I would rather see justice prevail, and not have Cloanto and the Amiga parties let Hermans bully them AGAIN, by accepting a settlement outside of the courtroom. He really needs to be held accountable for his illegal actions, and finally learn that he can't get away with the types of behaviors he has been using for decades. I won't be happy with any result short of the 2009 settlement being thrown out because Hyperion has breached the contract, so EVERYTHING Amiga (except perhaps a few game distribution rights) can be taken back from Hyperion, and the developers who have actually been doing the work to improve AmigaOS4 can finally have a chance to be compensated with money for the work they do (either by Cloanto, A-Eon, or the community), instead of that funding going to a company that only knows how to create legal battles and dissension where harmony and productivity should exist.

Come on people, wake up and realize that Ben Hermans has never been good for the Amiga community. He is a predator, who took advantage of McBill the FOOL, and it has ALWAYS BEEN the community of Amiga developers and users that have moved our platform forward, not some imaginary company that runs up legal fees to inflate it's imaginary net worth of the owner. (I use the word imaginary because Hyperion has never been a real company that produces anything, they only attempt to profit from the work of others). Sorry for the rant (again), but we really need to join together if we are going to successfully clean up the mess that this community has become. Getting rid of some cancerous parts would be a great first step, IMHO.

Hang in there Cloanto, I for one am rooting for you to stay the course, and do the right thing.

Last edited by amigadave on 23-Mar-2021 at 11:37 PM.

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number6 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 23-Mar-2021 23:45:38
#1105 ]
Elite Member
Joined: 25-Mar-2005
Posts: 11246
From: In the village

@amigadave

Minor addition:

Quote:
(either by Cloanto, A-Eon, or the community


or Amiga Corporation.

and imo it's not Bill McEwen that anyone need be concerned about. It's Itec llc. (evil grin)

#6

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Yogi27 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 24-Mar-2021 1:21:44
#1106 ]
Regular Member
Joined: 11-Dec-2002
Posts: 351
From: Chicago, Illinois

@matthey

Hi Everyone.

Wow, I read both motions and you are right matthey. The contract is so lopsided to Hyperions benefit. It is hard to believe Amiga Inc. signed that (well, not really).

Think Hyperion is going to win this one.

Yogi

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matthey 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 24-Mar-2021 3:35:53
#1107 ]
Super Member
Joined: 14-Mar-2007
Posts: 1139
From: Kansas

Quote:

Yogi27 wrote:
Wow, I read both motions and you are right matthey. The contract is so lopsided to Hyperions benefit. It is hard to believe Amiga Inc. signed that (well, not really).


I would question Bill McEwen carefully to see if he was coerced into signing the contract under duress. What did he expect to gain from signing the 2009 settlement contract? What did Hyperion and Itec tell him about the contract? Did he feel compelled to sign the contract against his better judgement (will)? Did he feel that he had no reasonable alternative but to sign the contract? What legal advice did he receive? Who wrote the contract?

Quote:

Duress in the context of contract law is a common law defense brought about when one of the parties to the contract enjoyed an ascendant position in relation to the other party and abused that position by subjecting the other to threats. A party who has entered into a contract under duress is entitled to rescind or set aside the contract, rendering it voidable (in equity).

Duress is a threat of harm made to compel someone to do something against their will or judgment; especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition. - Black's Law Dictionary (8th ed. 2004)

Duress in contract law falls into two broad categories:

o Physical duress
o Economic duress

...

Economic duress is the use of unlawful economic pressure to compel a party to a contract to agree to demands which they would not have otherwise.

1. Wrongful or improper threat: No precise definition of what is wrongful or improper. Examples include: morally wrong, criminal, or tortious conduct; one that is a threat to breach a contract "in bad faith" or threaten to withhold an admitted debt "in bad faith".
2. No reasonable alternative (but to accept the other party's terms). If there is an available legal remedy, an available market substitute (in the form of funds, goods, or services), or any other sources of funds this element is not met.
3. The threat actually induces the making of the contract. This is a subjective standard, and takes into account the victim's age, their background (especially their education), relationship of the parties, and the ability to receive advice.
4. The other party caused the financial distress. The majority opinion is that the other party must have caused the distress, while the minority opinion allows them to merely take advantage of the distress.


https://en.wikipedia.org/wiki/Duress_in_American_law

The contract is so lopsided and the lack of benefit in the contract wording for Amiga Inc. leads me to suspect that Bill was coerced into signing the contract which may allow it to be voided. The huge contract beneficiary is Hyperion which increases the likely hood of them being a source of coercion. Do I smell a rat?

A contract lacking quid pro quo can usually be explained by one of the following reasons.

1. coercion
2. incompetence
3. consideration outside of the contract wording (under the table deals)

Reason 1 and 2 are often predatory and unlawful. Reason 3 is often fraudulent and unlawful. Of course an unlawful contract is invalid.

Last edited by matthey on 25-Mar-2021 at 10:16 PM.
Last edited by matthey on 25-Mar-2021 at 07:30 PM.
Last edited by matthey on 24-Mar-2021 at 04:22 AM.
Last edited by matthey on 24-Mar-2021 at 04:17 AM.

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number6 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 24-Mar-2021 13:42:14
#1108 ]
Elite Member
Joined: 25-Mar-2005
Posts: 11246
From: In the village

@matthey

I can only speak as to the facts according to the legal documentation. You likely understand this, but perhaps others do not.

@Amigadave

You requested a short summary. Hope this helps, but I'm not going to rehash the past. This only represents more current status.

all references to this source document 98 of Jan 21, 2021]

Key points:
Quote:
. On Thursday of last week, the Parties reached the terms of settlement on the main
agreement

Translation: It's basically done

Quote:
The only tasks that need to be completed are for the Parties to attend to seven
ancillary documents

Translation: "only" and "ancillary" (subordinate/of secondary importance) again basically done.

Quote:
The additional time requested will enable the Parties to focus exclusively on
finalizing documents and following through with the settlement

Translation: again basically done

Who filed for further delay?
Quote:
Accordingly, Hyperion, without
objection from Plaintiffs, respectfully requests that the Court extend...

When you see "parties agree" or similar, that does not mean both requested a delay, only that both agree.

Next we have the new deadline, March 18. If you do the math from the date of filing, it matches. Hence why when nothing got filed indicating further delay (along with dates people must adhere to)...something was obviously going wrong.

Finally, March 18 arrives and you see the resulting filings listed in this thread and on AmigaNews.

#6

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number6 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 25-Mar-2021 14:00:38
#1109 ]
Elite Member
Joined: 25-Mar-2005
Posts: 11246
From: In the village

@eliyahu

Checked the court calendar, principally on the motion for oral argument which has been barely mentioned here, if at all.

The court does not post schedules very far in advance. I don't see anything through April 2 atm.

#6

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Jose 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 25-Mar-2021 16:35:43
#1110 ]
Cult Member
Joined: 10-Mar-2003
Posts: 956
From: Unknown

"...not some imaginary company that runs up legal fees to inflate it's imaginary net worth of the owner. "

Loll That's the whole past of AInc and it's partners ...

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LadyJane 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 4-Apr-2021 4:54:21
#1111 ]
New Member
Joined: 5-Aug-2019
Posts: 4
From: Unknown

@ne_one

Quote:
Has Ben Hermans ever indicated why he continues to pursue litigation? I honestly can't imagine his motivation.


Because when you have nothing left to lose, you can only win?

Wherever you look in the last accounts published by Hyperion Entertainment CVBA and Ben Hermans BV you see six-digit holes that need to be filled.

If Hyperion lose the court case, are they going to pay lawyers, damages, etc., or are they simply going bankrupt?

If you were the 96% owner and lawyer well versed in the intricacies of US Intellectual Property litigation, would you not go on drafting your own motions for as long as possible?

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pavlor 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 4-Apr-2021 8:40:49
#1112 ]
Elite Member
Joined: 10-Jul-2005
Posts: 9247
From: Unknown

@LadyJane

Welcome!

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BigD 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 4-Apr-2021 11:41:00
#1113 ]
Elite Member
Joined: 11-Aug-2005
Posts: 5905
From: UK

@LadyJane

No if by doing so it led to all value and hope of a sustainable business being perpetuated draining from the ecosystem with every court delay and lost license partner! What are they left fighting over?

Last edited by BigD on 04-Apr-2021 at 11:42 AM.

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number6 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 4-Apr-2021 15:31:45
#1114 ]
Elite Member
Joined: 25-Mar-2005
Posts: 11246
From: In the village

@BigD

Perhaps you need to think less in terms of Amiga and more in terms of law here.

Here's one example:

Quote:
some firms received millions of dollars in federal aid under the Paycheck Protection Program, which they then used to boost their firms’ advertising budgets.


I'm not saying the above applies here, just that talking terms like "sustainable" and "business" might -not- - apply.

#6

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Rose 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 4-Apr-2021 15:36:15
#1115 ]
Cult Member
Joined: 5-Nov-2009
Posts: 918
From: Unknown

@number6

Also, to qualify they would need to have paid workers to have paychecks to protect

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number6 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 6-Apr-2021 21:12:24
#1116 ]
Elite Member
Joined: 25-Mar-2005
Posts: 11246
From: In the village

@thread

Responses from all parties to the motions were filed today.
Reference for motions: http://www.amiga-news.de/en/news/AN-2021-03-00051-EN.html

Links to these responses to the motions when/if content is made available.

Pacer incomplete listing atm due to the way they update

#6

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number6 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 7-Apr-2021 2:06:06
#1117 ]
Elite Member
Joined: 25-Mar-2005
Posts: 11246
From: In the village

@thread

the Amiga Parties' filing

#6

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A1200 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 7-Apr-2021 10:00:22
#1118 ]
Elite Member
Joined: 5-May-2003
Posts: 3086
From: Westhall, UK

@number6

Just think how different life would have been if David Pleasance's bid for Commodore had gone through following Commodore International's demise in 1994.

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Joe_RSA 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 7-Apr-2021 11:18:38
#1119 ]
New Member
Joined: 26-Oct-2018
Posts: 1
From: Unknown

@amigadave

Maybe we should stop buying Hyperion products for a while and pressure Mr. Ben.

He's got the Amiga community at gun point! It's the reason why many of us gave up on paying for trademark usage and prototype products just laying on the shelves.

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number6 
Re: Cloanto acquire Amiga Inc Trademark
Posted on 7-Apr-2021 12:00:21
#1120 ]
Elite Member
Joined: 25-Mar-2005
Posts: 11246
From: In the village

@thread

Pacer now updated to show Hyperion's response

Link to this response also when/if made available.

#6

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