@Joe_RSA

Not at all, Amiga Inc had copyrights,
Hyperion had exclusive right to use some trademarks defined in settlement contract.

It all started when Amiga Inc did fully pay for Amiga2D for AmigaDE, and work of porting AmigaOS to PowerPC, as result Hyperion refused, give the changes back to Amiga Inc, Amiga Inc went bankrupt few times, and Hyperion suggested Amiga Delaware, KMOS and so on was not same company as they had a buyback contract with, it dragged out in court, and resulted in the settlement agreement. Of course, AmigaDE was total failure and Amiga Inc disappeared.

AmigaONE and AmigaOS Trademarks is what Hyperion is granted to use in where specific way.
“Amiga” the computer they did not have any rights to, and was possible to license.

Anyway, the last time anyone tried to stamp Amiga on a Linux box and sell it as new Amiga the Amiga community got angry. It was not Hyperion who objected to Commodore USA.

Any other mark was possible to license from Amiga Inc when they were alive before Cloanto obtained the trademarks when Amiga Inc stopped using this trademark.

As the silly settlement contract says Hyperion is prohibited to register the trademark, to hinder new owners and old owners. And can’t take actions agents the owner. Basically, prohibiting Hyperion from becoming the owner of the trademarks.

It should be pointed out it was not Ben/Hyperion who sued Cloanto, it was Cloanto who sued Hyperion, Hyperion created countersuit, this basically manes Hyperion create a defiance against Cloanto’s claims. Hyperion countersuit is result of Cloanto’s aggressive attack on Hyperion.

what Cloanto is trying to do here is void, Hyperion’s settlement agreement, this what the legal actions are about. Hyperion’s settlement agreement defines what they are allowed to use trademarks for, they are not owners of the trademarks, and can’t prohibit anyone from licensing other trademarks from the trademark owner.

The final conclusion has not been drawn, but I daut Hyperion will be able obtain any additional rights, but if the settlement contract stands, it does prohibit Cloanto from licensing out the protected trademarks by the contract. Cloanto has to be able to prove that Hyperion can be held accountable, something they can only do if they are a part to the contract, that they did not sign because it predates Cloanto’s ownership.

You should be more worried about Cloanto, they are owners of trademarks Workbench and Kickstart, names I’m sure are in used, in AROS and MorphOS, if not just for backwards compatibility.

Last edited by NutsAboutAmiga on 07-Apr-2021 at 04:52 PM.
Last edited by NutsAboutAmiga on 07-Apr-2021 at 04:48 PM.
Last edited by NutsAboutAmiga on 07-Apr-2021 at 04:45 PM.

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@Joe_RSA

So what Cloanto is objecting to here is Hyperion selling T-Shirts and cups with Amiga name, and they did not like they Hyperion is working on making new version of old AmigaOS3.1, they see this as treat to Cloanto’s monopoly, on emulation market. Cloanto has years aggressively trying to obtain Commodore, Amiga, Atari and other trademarks, to monopolize the emulation market. With there products C64 Forever, and Amiga Forever.

Last edited by NutsAboutAmiga on 07-Apr-2021 at 05:01 PM.

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@NutsAboutAmiga

Your understanding of US law is very lacking, and I totally disagree with your summary of how and why these lawsuits started. Hyperion Entertainment/Ben Hermans is, and has always been the aggressor in our community, and he forced Cloanto to defend the IP rights they had legally acquired over many years, through purchasing those rights from various parties that held them. Their attempts have been to bring all Amiga IP under one company again, which you appear to disagree with. That is your opinion and right to feel that way, but I strongly disagree, and I believe that many users also agree with me that Hyperion is not the savior of Amiga that so many users once believed it was.

I have no objection to you expressing your opinions about these things, but I wish you would not try to state your opinions as FACTS, when there are many who disagree with the history that you have tried to portray in your forum messages. In turn, I have always tried to include in my messages, a statement that what I am writing is only my opinion, and that some people do not agree with me.

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@amigadave

I agree.

Didn't Hyperion release and try to sell an update of AMIGA OS 3x? without being allowed?
Not that I am against ANY update to the OS, especially one that fixes so many issues from 3.x however, I thought they only had license to sell 4.x (a bit murky with buy-back clause)

So, has there been any movement to a decision and some forward momentum?
I see lots of talking but no actual rulings.

Last edited by SHADES on 08-Apr-2021 at 02:08 AM.
Last edited by SHADES on 08-Apr-2021 at 12:22 AM.

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@amigadave

I really hope Hyperion loses this case. They've been a blight on the Amiga community for FAR too long. They've consistently failed to deliver anything in a timely manner and their attitude to the developers that have done the work really sucks.

@NutsAboutAmiga

Quote:

You should be more worried about Cloanto, they are owners of trademarks Workbench and Kickstart, names I’m sure are in used, in AROS and MorphOS, if not just for backwards compatibility

Aros it actually called WorkBook for that reason.

I'm no fan of Cloanto (https://amigaworld.net/modules/newbb/viewtopic.php?mode=viewtopic&topic_id=41117&forum=2&start=0&viewmode=flat&order=0 ) they nearly killed my Youtube channel. but they did put money behind UAE, and even back the Kickstart Rom Replacement Roms, that allow you to run some Amiga games and app with out the need to even buy the official Roms, so there not all evil.

At the end of the day no matter what happens its the Amiga community that is the real value and no one company can buy that anyway.

_________________
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@amigang

Quote:

I'm no fan of Cloanto (https://amigaworld.net/modules/newbb/viewtopic.php?mode=viewtopic&topic_id=41117&forum=2&start=0&viewmode=flat&order=0 ) they nearly killed my Youtube channel.

But by your own account:
Quote:

Update: Cloanto have been in touch they are working behind the scene to reverse the stikes, no idea if the video can come back online, they are looking into the matter as they said they dont really activity police Youtube... the matter has been sorted, strikes have been removed, all current videos are ok, but to not to upload any more clips from Commodore Amiga videos, its a shame, but glad Cloanto were not too harsh.

...they actively worked to restore it.

I think you should consider yourself lucky that the strikes came from Cloanto. There are so many nightmare stories of companies abusing copyright and acting absolutely unreasonable that your thread makes me admire Cloanto, but you still seem pretty bitter.

_________________
I've decided to follow an awful lot of people I respect and leave AmigaWorld. If for some reason you want to talk to me, it shouldn't take much effort to find me.

Quote:

SHADES wrote: Didn't Hyperion release and try to sell an update of AMIGA OS 3x? without being allowed? Not that I am against ANY update to the OS, especially one that fixes so many issues from 3.x however, I thought they only had license to sell 4.x (a bit murky with buy-back clause)

Yes, Hyperion developed and sold AmigaOS 3.1.4 for the classic 68k Amiga.

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 to 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.

Bill McEwen has declared under penalty of perjury that this was *not* the intention of the 2009 settlement agreement.

Quote:

I am informed that Hyperion's inclusion of "Amiga OS 3.1" in its AmigaOS 4.1 update from 2011 was, in fact, solely for the purpose of running Amiga OS 3.1 inside AmigaOS 4 on Power PC Amiga systems. This use does not involve running Amiga OS 3 .1 as an independent operating system, but functioned solely to allow legacy Amiga applications to run better within AmigaOS 4. Thus, the 2011 use was within the rights granted in the 2009 Settlement Agreement. By contrast, Amiga OS 3.1.4 runs on original ("Classic") Amiga equipment, and not the PowerPC Amiga systems or AmigaOS 4 systems, and is therefore outside the scope of the rights granted.

I doubt Bill's declaration will hold much water without original transcripts or e-mails of the discussion with Hyperion which indicate this. There is other evidence submitted in regards to this but I did not find anything about original discussions.

Hyperion released AmigaOS 3.1.4 with likely incorrect copyright notices which were later changed. Whether this was a simple mistake or, with other evidence, indicates a plan or conspiracy by Hyperion to claim ownership of Amiga Inc. IP in violation of the 2009 settlement agreement is up to the judge to decide.

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.

The new Amiga Corporation of Nevada wants Hyperion to be found in breach of the 2009 settlement agreement so the licensed rights revert back to Amiga Inc. which can then be passed on to Amiga Corporation. The rights granted in the agreement are so broad that they would be restrictive for Amiga Corporation if they decided to do anything with the AmigaOS. Hyperion currently has more control of the AmigaOS than the owners.

Quote:

So, has there been any movement to a decision and some forward momentum? I see lots of talking but no actual rulings.

Counter arguments were recently submitted. A judgement should be one of the next steps but could take a while. There is a whole list of evidence to be read and sorted through.

https://sites.google.com/site/amigadocuments/all

In addition, there is plenty of sketchy and possibly illegal activity.

1. Shell companies (transfer IP but may leave debt)
Amiga Inc. (Washington)->KMOS->Amiga Inc. (Delaware)->Cloanto->C-A Acquisition Corp.->Amiga Corporation (Nevada)

2. Gross over valuation of Amiga Inc. worth by Amiga Inc. (can be used to borrow more or defraud potential shareholders)

3. Possibly coerced 2009 Settlement agreement which gives so little benefit to Amiga Inc. that it brings into question whether it is valid (lack of quid pro quo)

4. Hyperion's failure to deliver AmigaOS code and pay employees as contracted

5. Hyperion diluting shareholders to pay lawyers while not paying others

6. Possible illegal avoidance of bankruptcy by Hyperion

7. Unauthorized use of A-Eon bank funds by Hyperion

It will be interesting to see how the judge reacts to these things. Better refill your popcorn container.

Last edited by matthey on 09-Apr-2021 at 09:57 PM.

@matthey

Quote:

Cloanto, but you still seem pretty bitter.

Its just slightly annoying that it only happened when two Community Back films happened, Id be less annoyed if it was a private company that paid for the films, or Cloanto them self had plans for the Adverts, they wanted them part of there Amiga Forever package or there own YouTube channel, but they done nothing with them, but copyrighted them. before that they had lets face it little perceived value, I mean maybe a third party is involved that wanted money / copyrighted them but still I just think its a real shame that the videos (that are largely just adverts) cant be made public domain now. But true they are not all evil like I said they did allow a few of the vids to remain online and removed the strikes but I just wish they them self shared them or made them available all in one place and if they have no plans with them, then whats wrong with giving it to the community.

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@matthey

A settlement agreement where the parties cannot agree on what was settled, is pretty much void.

Also, the letter of a settlement is less valid than the intentions of a settlement - when all parties involved, except one, agree on what the agreement really was, and what the intentions with the agreement was... the last party will have a hard time convinsing any court otherwise. It doesn't help that Ben afterwords bragged about having sneaked in some last minute rewording of sentences that could open up for Hyperion in the future.

All Hyperion holds, is a license to develop - they did try to pretend to own all rights, but were called out on it - licenses can rather easily be terminated, isn't that very much the point of handing out licenses instead of just fully sell the entire portefolio.

And... Hyperion isn't developing diddly squat - none of the developers are under contract with Hyperion, there's just an NDA and unpaid work. At best you can call them a distributor.

(I say whack because expect the NDA to be equally whack as their EULAs)

And as I have mentioned before... lots of the OS 3.1 code wasn't even copyright of CBM, but rather copyrighted by various third parties and only licensed to Commodore at the time. When was it established that all those licenses to use, and develop further, were transferable to successors of Commodore?

_________________
B5D6A1D019D5D45BCC56F4782AC220D8B3E2A6CC

Quote:

kolla wrote: A settlement agreement where the parties cannot agree on what was settled, is pretty much void.

Contracts would be useless if disagreement was sufficient to void a contract.

Quote:

Also, the letter of a settlement is less valid than the intentions of a settlement - when all parties involved, except one, agree on what the agreement really was, and what the intentions with the agreement was... the last party will have a hard time convinsing any court otherwise. It doesn't help that Ben afterwords bragged about having sneaked in some last minute rewording of sentences that could open up for Hyperion in the future.

Original intentions of contracts are important but evidence outside of the contract wording needs to be documented and reliable. Original information is more important than what someone remembers later which is less reliable as people forget information and have more of a reason to lie.

Quote:

All Hyperion holds, is a license to develop - they did try to pretend to own all rights, but were called out on it - licenses can rather easily be terminated, isn't that very much the point of handing out licenses instead of just fully sell the entire portefolio.

Hyperion holds much more than a license to develop AmigaOS. Read paragraph 1(b) of the 2009 settlement agreement again closely.

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 license can *not* easily be terminated as it requires voiding of the 2009 settlement agreement.

Quote:

9. Termination. This Agreement and the rights and obligations contained therein, shall enter into force as of the Effective Date and remain in force until such time as a court of competent jurisdiction has issued a final and non-appealable ruling on the existence of a material breach justifying termination of this Agreement.

Hyperion does *not* lawfully "own" AmigaOS but perpetually has exclusive and free use of it as long as they do not breach the 2009 settlement agreement. In practice, Hyperion owns it. The lawful owner gets no benefit (consideration) from it and can *not* easily terminate the settlement agreement.

Quote:

And... Hyperion isn't developing diddly squat - none of the developers are under contract with Hyperion, there's just an NDA and unpaid work. At best you can call them a distributor.

The 2009 settlement agreement doesn't require Hyperion to do much at all. There are only a very few things which they are required *not* to do (material breach) and most, if not all of those, were implicitly expected (you won't sue us or bad mouth us) or already required by law (respecting ownership of IP). That is why I suspect the contract lacks quid pro quo and/or Bill McEwen signed it under duress. The settlement agreement is grossly lopsided in Hyperion's favor.

Quote:

And as I have mentioned before... lots of the OS 3.1 code wasn't even copyright of CBM, but rather copyrighted by various third parties and only licensed to Commodore at the time. When was it established that all those licenses to use, and develop further, were transferable to successors of Commodore?

Hyperion has a lawyer to look into such legal matters and further dilute any stock ownership by others as he issues more stock to pay himself.

@matthey

Correction: all 3 Cloanto entities (Cloanto IT srl, Cloanto Corp and C-A Acquisition filed a lawsuit against Hyperion in Brussels Belgium in 2019, a case which dragged on for almost 1 year to force Hyperion into judicial liquidation and dissolution.

This is the equivalent in legal terms of nuking from orbit.

As a result, 2 Hyperion shareholders (i.e. Timothy De Groote and myself) were required to convert their liquid debts Hyperion had towards us into new (rather illiquid new shares) as part of a capital increase.

This "conversion" and resulting captal increase was carried out on the basis of a report by an independent chartered auditor who verified that these debts which were converted as part of this capital increase, were on a "cash basis" only by verifying all bankstatements over the course of years.

Amusing how this was spun into a story that outstanding legal fees were converted to new shares to prop up our net value when there are no legal fees invoiced by myself to Hyperion.

Only amounts actually paid as taxed cash advances by myself and Timothy (total was 398.960 EUR) by way of shareholders' cash advances to Hyperion, were converted into new shares after the independent auditor reviewed all bank statements of Hyperion and filed a report to this effect with the Court of Commerce.

Anybody in his right mind will understand that this would never have happened, converting taxed cash into illiquid shares, unless it was required to fend off the attempt by the Cloanto entities to nuke Hyperion out of existence.

All of this was quite prejudicial to the Hyperion shareholders.

Needless to say, this would however NOT have happened if it had not been for the Cloanto parties lawsuit to force Hyperion into liquidation.

Which obviously failed as the case was dismissed by the Court of Commerce in Belgium.

All of this is a matter of public record:

http://www.ejustice.just.fgov.be/cgi_tsv/tsv_rech.pl?language=nl&btw=0466380552&liste=Liste

You will notice the amounts of 397.110 EUR for me as well as 1.860 EUR by Timothy which (again) were liquid cash debts (fully taxed) that had to be converted into illiquid shares.

Or in US Dollar: around 475.500 USD.

I will not comment on the ongoing lawsuit in Seattle but if even such fundamental issues as our capital increase in June of 2019 can be so distorted and twisted despite the public record if somebody actually bothered to do some perfunctory research, this should tell you something.

Best regards,

Ben Hermans
Director Hyperion Entertainment

Now back to real work.

Last edited by Hyperion-Director on 10-Apr-2021 at 03:21 AM.
Last edited by Hyperion-Director on 10-Apr-2021 at 03:20 AM.

@matthey

Quote:

matthey wrote: Quote: kolla wrote: A settlement agreement where the parties cannot agree on what was settled, is pretty much void. Contracts would be useless if disagreement was sufficient to void a contract.

And they often are. Which is why contracts are disputed, renegotiated and revised. In civilized parts of the world this happens all the time, and rarely do the courts have to be dragged into the process.

Loopeholes and vagueties are NOT supposed to be weaponized and exploited, they are supposed to be disclosed and presented to the signing parties for clarification so the contract can be revised.

_________________
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Heh, the smoke got the fox out of its hole...


@Hyperion-Director
https://www.hyperion-entertainment.com/index.php/where-to-buy/direct-downloads/188-amigaos-314

Quote:

This license allows you to install or operate the AmigaOS only on a computer system that had a version of AmigaOS installed on it at the time you acquired such computer system, which was especially prepared for running AmigaOS through the use of a dedicated (flash)rom or similar mechanism or for which a legitimate version of AmigaOS was or is available.

Please clearify this sentence please, it is open for vastly diverging interpretations:

* a computer system that came with AmigaOS already installed, and that was especially prepared for running AmigaOS through the use of a dedicated flashrom or similar mechanism, and (not or) for which a legitimate version of AmigaOS was or is available...

OR any of the following

* a computer system that came with AmigaOS already installed
* a computer system which was especially prepared for running Amiga through the use of a dedicated flashrom or similar mechanism
* a computer system for which a legitimate version of AmigaOS was or is available

What is your definition of "a legitimate version of AmigaOS"?

Do OS releases that Cloanto sell fall under this definition? If so, isn't _ANY_ computer then "a computer system for which a legitimate version of AmigaOS was or is available"?

Last edited by kolla on 10-Apr-2021 at 09:00 AM.

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@Hyperion-Director

Pocket change for most companies of any serious might. This is cottage industry money, you might as well be discussing a greengrocer shop (nothing wrong with running a greengrocer but a little shop wouldn't be perpetually fighting in courts). There's very few customers buying nowadays and I wonder why there's such battles for the scraps of Commodore and it's aging customer base. Trevor Dickinson himself says he throws money at these ventures for the love of it with no hope of ever recuperating it. All silly behaviour for what should now be community run projects and low volume products such as Vampire boards. Commodore and Amiga really died in 1994 think about that - they have been gone longer than they were in existence. It's like people fighting over the East India Company.

Produce some new ROMs to enhance our old Amigas, run a few boards off to run OS4, make a "what if" Amiga-like OS with SMP support, run off some T-shirts and mugs with Amiga printed on them and flog a few on eBay to fellow old codgers but none of this is going to change anyone's life it's all lifestyle business at most. Show me 1 business who's primary activity is Amiga related product who is doing a million dollars a year or more in revenues I would be surprised. Multi million and I will chop up an A600 and swallow it down with some butter. Taking these arguments to district courts is laughable, the reality of what really being fought over is for Judge Judy to preside over at best.

_________________
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What people seem to have forgotten is N+1 posts by Ben where he says that they can't port OS4 to X since they have license only for PPC....

@thread

To top things off after the motions and responses to motions from both sides:

Replies to responses to motions

#6

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@kolla

Finally, your destiny has come.

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@A1200

Quote:

Taking these arguments to district courts is laughable

And a waste of time and tax money - those courts really have better things to do.

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@Rose

Really? Prior to September 30, 2009 that would have been a valid statement.

Having said that, there is also the question of resources both human and financial.

AmigaOS is a 32 bit big Endian oriented operating system, be it 68K or PPC.

Moving to x86, ARM or even RISC-V would be no small feat as these are little endian. It can be done of course - technically.

Unless we move to 64 bit and the whole issue becomes moot but again, this would require a massive investment.