@Kronos

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by Kronos on 19-Jul-2007 18:46:17 @Sneaky The history of *nix is far far more complicated than the one of AOS.

I woudn't be so sure about that.

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Linux is a clean-room reimplemantion just like AROS (or MorphOS for that matter).

SCO has built it's business concept on the contrary.

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The free BSDs exist because at the time they spawned form the main UNIX-tree UNIX was distributed under a rather relaxed licence. Bout that 25000$: - Hyperion did sign a contract stating that the OS could be bought-back for that price

As I understand the contract, they could buy back the development, the right to develop it further. Otherwise the paragraphs of essentially changed and better version releases in a 6 Months timeslot, don't make sense. (well, there is a lot in live that doesn't, I admit )

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- Amino did trigger that clause, and Hyperion wrote an receipt for the said sum

So who do you call Amino, now: AInc(W), Itec, Kmos, AInc(D), Bill McEwan alone...

Obviously they didn't do their paperwork that time, and obviously they don't agree on that point. So no chance to for us at this point to get to the truth, and even if, it wouldn't change the situation. So please stick to facts, and mark assumption where they're done. Thanx.

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- Hyperion never renogigated a new contract, despite extreme need of it

Well, AmigaAnyname diddn't either! If they did, they probably didn't have to sue!
It seems AmigaAnyname was happy about it, perhapes beacuse they saw an advantage they are now trying to secure? I don't know, but you neither.

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Their is no question wether Hyperion aggreed to sell the OS for that price, and they don't even argue that in court. They do concentrate on side-issues, like was the money really paid and in time, what has to be handed over and who had the right to trigger the clause.

Well this is extremely shortaged. They have some 12 or something points argueing why they should win the case. You've chosen some of the weaker ones and, to be frankly, I'm too lazy to look them all up again.

But the start of the argumentation or near the beginning is the Amiga(W)-Itec IP Transfer, which is IMHO really interesting, as it should be easy to proof, when it really happen. You cannot stand up and say "I'm the first secured creditor, and therefor I take ... everything!" There has to be an agreement, something signed, perhapes even by some stateofficial or a bank. I don't know how this is handeld in the US, but I'm sure calling myself secured creditor issn't enough.
(If that would be the case, why doesn't everyone do so? Just lend your friend a buck, state that you are his first secured creditor and take his house ... don't take this seriously)

The opposite is also very interesting: How do I proof Itec was not the secured creditor?

@Ketzer

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Not only did they have access to the source, they specifically were contracted to create a part of Amiga OS4.

But they didn't pay for the work and possibly hindered the contractual possibility for Hyperion to regain development cost.
So I would say, no, it's not theirs. But IANAL nor the Judge.
And we both know, the 25.000$ are not the price for the OS, as this has been discussed in and out (but we can start over again, if you like)
Beacsue if it was there would be a sentence at the very beginning of that contract:
"...
Whereas Hyperion will develop the new OS4 for the sum of 25.000 $ (in words twentyfivethousand dollar) to be paid 50% upfront and 50% after finishing OS4.
..."

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I know you like Hyperion, but youre rewriting history just like Hyperion themselves is currently trying hard to.

I don't like Hyperion anymore than I like you or AInc or the weather here in Germany.

I don't know them, I haven't bought anything from them, I didn't contract anything to them, I didn't contract their contractors, nor do I know any of them personal.

As I never had any business with them I call myself neutral. All thoughts I have expressed here are my own and the conclusions I have come to, are completly based on the presented court documents and my personal live, including RL that is and the stuff that did go over the tickers of the Amiga-News protals the last years and I had a chance to catch.

Just because I'm no Hyperion-Basher like Umisef or Tigger seem to be, doesn't automatically make me a Hyperion Lover, ok? The world still isn't black an white! Get that!

As I'm no historian, nor have I studied to the bottom of every thread, newsitem or article that has been published about amiga, I'm not sure who is re-writing history here. So I'm the last who would blame someone for something like that, and so should you do.

@all
What the most of the people here don't seem to realize: We have two parties trying to win. It's not about fairness and not about truth. It's about winning and about money.
So both are setting themselves up in the most positive way. This has nothing to do with rewriting history, it's about proof, and fact. If you can show something that weakens the other party, and the other party can't defend this, then they show it. Regardless of the fact, if it's the truth or a completely turned around statement.

@Ketzer

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Thats no argument, thats just plain wrong and insulting. You obviously live in Happy-Hyperion-Land. Try reading the 2001 contract without your prejudice.

(Well we can play Sandboxgames, if you are still that young. )
Try reading it yourself without YOUR prejudice.
But I asure you MY prejudice is so much pretier than yours. And I've got a remote control for it |-)

@Tigger + @all

You should keep in mind, even if you are a native speaker, most of your readers are not. I was so kind to correct you in a statement, that I, as it did come out misunderstood, and argued with you to clarify. What's your Problem with that?

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I also think the moderators should look at you account given its creation date as a potential shill for Hyperion which would be against the TOS of the site. -Tig

I never took sides nor did I present one party as the clear winner in my statements. There where others who did that.

Removed part of post, reason: flamebait /tomazkid

Nuf, said.

Last edited by tomazkid on 20-Jul-2007 at 11:28 PM.

And here I am patiently waiting for ITEC LLC to be Joined in the Washington suit.
Waiting for that confused Judge to toss out the ITEC legal garbage and
serve up some more egg in some faces.

ITEC had to leave one big point unanswered.
Thats why The Judge will have to hook them in to the Washington Suit.
And he won't be happy with the little stunt that ITEC have tried.

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PDF 53.page 5 Lines 5-16 . for the issue.

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@Sneaky

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The 25.000$ are NO PAYMENT!!! The payment was the COMPLETE acomplishable revenue of the OS4 sales.

Ah, yes. What makes you say that (other than Hyperion's silly submissions to the court, that is)?

Is it that you don't understand the words "transfer" and "acquire"? Or is it yhat you don't understand the words "rights, interest and title"? Or maybe "Source Code and Object Code"?

Because once someone has transferred all rights, interest and title in something to someone else, including the Source Code and Object Code of that something, then they no longer have a right to sell or license that something.....



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You found a builder who builds your home for free and you allow him to rent it to people for the first 5 years to regain his cost. After that you just have to pay additionally 25.000$ and the house is yours.

A lovely story, and one that matches what a contract should have been if Hyperion had not simply expected Amiga to go broke. Alas, not one that matches the contract we actually have. There is no "5 years of rights to exploit" clause in the contract that was signed on November 3rd, 2001. There is also no "After that, you may pay" clause --- in fact, there is a very explicit "at any time before, or up to 6 months after completion" clause.

Yes, your story matches what the contract should have been, I fully agree. It would be fairer. But in court, you may get sympathy for stupidly signing a bad contract, but you don't get excused from performing just because you were stupid.

@Kronos

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The free BSDs exist because at the time they spawned form the main UNIX-tree UNIX was distributed under a rather relaxed licence.

And one of the reasons Linux is much more successful today than *BSD is that back in 91/92, the whole heritage/derived thing actually *did* see a lot of lawyer action. Eventually, the Unix owners and the various BSD representatives reached an agreement which said "well, here is what we accept as free; These files we do *not* accept as free, but if you replace them with rewrites, we will not care, and will leave you alone". This became a binding agreement, and all the free *BSDs had to go back and re-develop their stuff on the now clean "these-files-are-free" base instead of whatever tainted sources they had used before.

The actual impact of "these files are not" was minimal --- IIRC, it was something less than half a dozen fairly trivial files --- but the extended legal uncertainty, followed by a period of little actual progress as everyone scrambled to un-taint their sources, really hurt *BSD; At the same time, Linux was happily riding its free-clean-fun image, getting better all the time (which was easy, seeing how far behind it started :), and Linus got into a fight with Minix's creator (Minix being the major inspiration for early Linux) not over IP rights, but over operating system philosophy.


Now, AT&T (I believe they were still the UNIX owners at the time) were agreeable and were looking to not cause bad blood; Essentially, all they wanted was to have defended their IP and to have it on record that the *BSD stuff was examined, something was done, and that the existence of *BSD did not in any way imply a lack of IP protection for the "real" UNIX code. So an agreement was reached which gave the *BSD crowd everything they needed, and gave the UNIX owner the symbolic victory of having certain files removed (and having all the *BSD distributors comply voluntarily). Both sides actually wanted the same thing.

If ExecSG ever comes down to a similar situation, neither side has any interest in making any concessions....

@Swoop

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Hyperion weren't supposed to be paid for anything!!!!!

That must be why the term "payment" is used in 3.01, right?

@Sneaky

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Sneaky wrote: @Tigger + @all I never took sides nor did I present one party as the clear winner in my statements.

I disagree and most who have posted on the thread disagree. Your first message was a cheer for Hyperion and pretty much the 75 after it have followed suit.

Removed two moderated quotes and one reply to it: Reason Reply to Flamebait./tomazkid

I'm sorry, the community needs developers like myself and Bernd more then it needs people that join the website to cheer for Hyperion when they hear they are being sued. Especially when that person admits he really cant be bothered to actually read the history of the case or even all the documents involved in it but sure likes to tell people who have been members here for years and members of the community for even longer that they dont know what they are talking about all while hanging out anonymously.
-Tig

Last edited by tomazkid on 20-Jul-2007 at 11:41 PM.

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@Spectre660

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PDF 53.page 5 Lines 5-16 . for the issue.

Rests on the very same two assumptions.
* Amiga W was insolvent.
* The transfer from Amiga W to Itec was illegal.

Amiga D claim ...
* Amiga W was not insolvent.
* The transfer from Amiga W to Itec resulted from a security interest and thus is legal.

Neither side has any evidence for their claims, yet, however, Amiga D has the people that have personal knowledge, while Hyperion has the burden of proof.

We'll see.

Last edited by Ketzer on 20-Jul-2007 at 08:32 AM.

@Sneaky

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But they didn't pay for the work and possibly hindered the contractual possibility for Hyperion to regain development cost. So I would say, no, it's not theirs. But IANAL nor the Judge. And we both know, the 25.000$ are not the price for the OS, as this has been discussed in and out (but we can start over again, if you like)

Then care to explain what you misunderstand about "Hyperion shall transfer all source code, interest and title in OS4.0 to Amiga" for a "payment" of "25000 USD" "no later than six months after the completion of OS4.0" but at any time before completion? Quoted from 2.06 and 3.01, the topic of 2.06 being no less than "ownership".

Last edited by Ketzer on 20-Jul-2007 at 08:55 AM.

@Ketzer

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Amiga D claim ... * Amiga W was not insolvent.

Of course Amiga W wasn't insolvent it just happens that Bill McEwen is a master, not of business but of perjury..

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@Ketzer

Quote:

Then care to explain what you misunderstand about "Hyperion shall transfer all source code, interest and title in OS4.0 to Amiga" for a "payment" of "25000 USD" "no later than six months after the completion of OS4.0" but at any time before completion? Quoted from 2.06 and 3.01, the topic of 2.06 being no less than "ownership".

It's that those clauses are not seperate entities, standing for themselves, but are in a context. In another part it is clearly written, that the revenues of OS4 sales belong to Hyperion/Eytech and for sales of 4.1 and all following, a licence fee is set.
So why should this be in there, if they shouldn't be allowed to still sell the OS, even, if AInc. took back control of the OS development (the buyback)?

But the problem still is, that it can be seen both ways, isn't it?

@pixie

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Of course Amiga W wasn't insolvent it just happens that Bill McEwen is a master, not of business but of perjury..

We've been through this. Let me refresh your memory. "Insolvency" is not even defined. McEwen admitted Amiga were unable to pay, yet had assets, probably worth more than their debt. McEwen is no lawyer, his defense could simply be, that his choice of words was bad. Hyperion had knowledge of McEwen's testimony, but only recently, when being sued, thought to interpret it to mean that the insolvency clause has been triggered.

Someone should make a wiki with this, so you can find the answers to your repeated accusations yourself.

@Sneaky

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It's that those clauses are not seperate entities, standing for themselves, but are in a context. In another part it is clearly written, that the revenues of OS4 sales belong to Hyperion/Eytech and for sales of 4.1 and all following, a licence fee is set. So why should this be in there, if they shouldn't be allowed to still sell the OS, even, if AInc. took back control of the OS development (the buyback)? But the problem still is, that it can be seen both ways, isn't it?

Not really. Both parts are valid, true. However once the buyback has been triggered, all interest has been transferred, the ability to sell seems to cease. Anyway, whether Hyperion is allowed to sell OS4.0 could still have been decided by a court after the buyback had been invoked, BUT, Hyperion decided not to transfer anything at all when paid, thus comitting a material breach, thus getting their contract cancelled, thus definately losing the right to market OS4.

@Tigger #472

as its OT just a few words:

Without people like me, customers, you, developers, won't have anything to do but lock yourself up in your closet and do your hobby alone.
I started talking because some people fiercly misinterpreted facts, just reread your first posts on that matter for yourself and mind the outcome that the preliminary incunction was denied.

And of course I write on the court matter. What else should I do as its the only "news" there is and oh, yes there is no HW and NO SW available I could buy and talk about instead. I'm not one of the blessed who got a OS4 System. As it was overpriced and buggy as came out afterwards, I'm not too sad about that fact inthe end, as I don't have that big pockets full of change.

It will be the last post on this matter to you, so feel free to answer it one more time, but then leave it for good.

@Sneaky

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If you think this thought about reading or seeing code of someone else to the end, everybody who reads code of someone else could be sued by this person afterwards.

This is complicated, and you will be hard pressed to understand it, unless you've been involved in these matters. First of all there's a difference between code that is publicly available, eg to anyone, and code that you personally get as a result of contract. ExecSG is contract work, is supposed to be a part of OS4 and the developers have received and reviewed the sourcecode to the existing Amiga OS / exec. Thats more than enough.

@Ketzer

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BUT, Hyperion decided not to transfer anything at all when paid

If I remember correctly, then there is somewhere in the documents from AIncAny the copies of the CD Covers of the CD-Release Version Hyperion made. So they got some kind of "final" product, you could say

Wasn't it also mentioned that they had the artic device with the SW to show around? So they definetly had "something" so to say, but obviously for AInc it wasn't enough. (anymore, if you keep in mind, that they diddn't have more with the 3.5 and 3.9 updates Haage&Partner did)

It will be interesting how this will be handeled in the end.

@Ketzer

Twist as you like on perjury, it won't make you look any better...

> Hyperion asserts that William McEwen admitted in a sworn 2003 deposition that
> Amiga Washington had become insolvent

> In response to the question as to whether Amiga was on that day “financially solvent”,
> Mr. McEwen responded “No”.
Declaration of William Kinsell, Exhibit A.

No sir, you better understand what perjury is... William either is doing perjury because Amiga was solvent or Amiga was in fact insolvent, you cannot have both. 'Bad chosen' words don't apply in legal matters.

Anyone wondered that the real reason Amiga doesn't have the binaries is because they do not actually have money to buy an AmigaOne!?

Last edited by pixie on 20-Jul-2007 at 10:10 AM.

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