@damocles

Quote:

Funny, what I got out of that joint press release was they were going to abide by the original terms, not the original contract. Original terms called for 30 day notification that could lead to arbitration.

They didn't just give them 30 day notification, they told them that they are in breach of the 2001 contract and must cure the breaches within 30 days. How can you breach a contract which has been abandoned and is no longer in force?

Quote:

What your missing is that there is someone who is highly biased opinion since it does impact them directly on which way the jury decides. It's not Tigger, he doesn't really care, it's YOU.

Considering how many posts Tigger makes on the topic every day, it's a bit silly to say "he doesn't really care" He has very strong feelings against Hyperion, Ben and Evert, and he surely does not deny that, and I think it's because of this hatred that he often makes the mistake of turning away from reality and entertaining fictiuous ideas. Remember when he strongly argued against the existance of Annex II or the invalidity of the unsigned Arctic contract AD presented, all I tried to point out to him was that information is missing and he jumps to conclusions without knowing all the facts, and he said it's silly to suggest that AD's lawyers would submit unauthenic documents because they're one of the best lawyer firm in the US, etc. We have something similar happening here, he takes bits and pieces of information selectively, ignoring others which are not supporting his "ideas".

Quote:

So shouldn't we discount your opinionated posts due to ultra high bias factor?

I'm sure you already discount my posts

Quote:

Although, truth be told, if I was a OS4 supporter, I would be rooting for AI to win so the developers have some slim chance of being paid for their hard work.

I think you would reconsider that if you actually ever dealt with AInc For example David Wentzler, who did the AHI drivers for OS4 and Audio Evolution, also worked for AInc, quite recently in fact, and stated in a forum a few weeks ago that he is still waiting to be paid by AInc. And he's not the only one.

@damocles

I agree. I don't understand the Hyperion support. They considered the OS4 project as worth very little (25,000 is not much imho), then botched the securing of rights so badly everyone that worked on it claims ownership of a slice, and finally they took so long (trying to put Ainc under to steal the ip) it made OS4 irrelevent today. Hyperion screwed os4 badly and deserves no support (not that AInc does either)!

@COBRA

Quote:

How can you breach a contract which has been abandoned and is no longer in force?

If the other side has made a commitment to "honor the terms of the November 2001, agreement", that means that the other side has committed to letting you have a license until and unless you do something which would have had your license revoked were the 2001 contract still in place.
As you (or rather, Hyperion) had not given a reciprocal commitment (at least mot in public), they obviously weren't bound by the 2001 contract, and could, for example, have walked away without risk of penalty. They could also have decided to not pay license fees when those would have come due, because they never committed to paying license fees.

However, once Hyperion starts doing things which are in breach of what would have been their obligations were the 2001 contract still in place, KMOS is free to do the things AI(W) could have done under the 2001 contract, and eventually, revoke the license, in perfect compliance with the terms of the 2001 agreement, which they committed to adhere to.

Which, in AI's current version of events, is exactly what happened. And while I agree that AI certainly did a spectacularly bad job at getting their story straight before they started talking, I must also say that their version of the story matches the observable events (e.g. Hyperion saying "We welcome KMOS's acquisition, and will work with them") a heck of a lot better than Hyperion's (i.e. "Who the hell is KMOS, and why do they think we have an agreement with them?").

@COBRA

Quote:

COBRA wrote: @Tigger Quote: The Feb 9, 2004 letter says "As of right now there is no contract in place for the distribution of the operating system with KMOS the owners of the product. " Thats pretty good evidence in my book, did you forget it said that? That's pretty good evidence that the disputes regarding ownership of OS4 already started back then. It's certainly not showing that the parties abandoned the 2001 contract, again, KMOS saying in 2004 that they want to honor the 2001 contract, and then them cancelling it in 2006 is clear indication that they did not consider it to have been abandoned in 2006, but if you want to keep ignoring the facts, suit yourself.

I disagree, there is no contract, is pretty good evidence that they had abandoned the contract at that point. The Agreement says they are going to treat Hyperion and Eyetech by the rules of the contract, which they seem to have done.

Quote:

Look Tig, I know you really dislike Hyperion and those who run it and you'll entertain any idea that allows you to feed your feelings towards them, but thinking that they wouldn't even respond to a letter of termination requires a large dose of naivity.

Cobra, I can just use what we have seen as evidence, we have evidence that AI sent the letter (we've seen it), we have evidence that Hyperion received it (Evert's testimony), we have evidence that Hyperion did not respond (AI's testimony). Its not Naivity to just use the evidence we've been presented in our posts here, until Hyperion says we did in fact respond and heres our response, the court will have to assume that AI is correct and they did not respond.

Quote:

The same goes for their latest story of the 2001 contract being abandoned, you have to live in some kind of fairy land to believe that (and that McEwen made an honest mistake in his previous declarations), when their previous actions prove the exact opposite.

I dont think McEwen makes an honest anything. I think McEwen is incompetant and made up the "simple" version of what happened and figured he wouldnt have to dig all of his dirty laundry out again, see the Bolten case or the Thendic case for more evidence of past McEwenisms like this.
-Tig

Last edited by Tigger on 24-Feb-2008 at 02:29 PM.

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@COBRA

Quote:

COBRA wrote: @Kronos Quote: Well there ain't such an reply in the court docs, which means either Kronos, in court docs you only submit documents which are needed. If the judge decides that KMOS had legal right to terminate the contract, and he determines that Hyperion has indeed breached it, it doesn't matter how Hyperion responded to AD back then. Likewise, if the judge concludes that KMOS had no rights upon which they could have terminated the contract, it is also irrelevant what communication took place between AD and Hyperion at the time they terminated it, the termination will not be effective.

Totally incorrect. Even if KMOS is the owner of the right to cancel the agreement/contract/blood oath there may have been no reason for it to be cancelled, or Hyperion might be owed damages (or other rights) because of the cancellation, however by not responding, Hyperion basically waived them, thats a huge mistake as I have been pointing out for a long time. Also the judge may decide that the contract is cancelled even if KMOS isnt the owner as long as the actual owner (Amino) is amiable because Hyperion did not respond and explain why they believe KMOS could not cancel the contract and thus unfairly extended the contract beyond the desire of one of the parties, that also would not happen if they had responded. So yes Cobra, there are lots of reprucussions that can occur to Hyperion because they decided not to respond (or prove they responded).
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@COBRA

Quote:

COBRA wrote: Considering how many posts Tigger makes on the topic every day, it's a bit silly to say "he doesn't really care" He has very strong feelings against Hyperion, Ben and Evert, and he surely does not deny that, and I think it's because of this hatred that he often makes the mistake of turning away from reality and entertaining fictiuous ideas.

I dont really care Cobra, I got here to work at 7 AM, started the EMI testing and I'm posting while I babysit the system, if I wasnt here at work, I'd be sleeping, working on the house or working on Efika, things I really do care about. I dont even know Evert, the only reason I bring him up, is to point out he is the sole empolyee of Hyperion and he works somewhere else to make ends meet, so this hope that Hyperion will bring a brighter future for the OS 4 is not grounded in reality. As for Ben, he's technically incompetant, go back to the arguements with any of the long time developers on here or the bunny from 2003 and 2004. Unlike you, I understand the court can't just assume that there are other documents out there that will overturn what McEwens documents say, they actually have to show up.

Quote:

Remember when he strongly argued against the existance of Annex II or the invalidity of the unsigned Arctic contract AD presented, all I tried to point out to him was that information is missing and he jumps to conclusions without knowing all the facts, and he said it's silly to suggest that AD's lawyers would submit unauthenic documents because they're one of the best lawyer firm in the US, etc. We have something similar happening here, he takes bits and pieces of information selectively, ignoring others which are not supporting his "ideas".

I didnt strongly argue against Annex II, we had all seen Annex II before the trial started whent he contract was leaked to the bunny in early 2006 or late 2005. I argued that it wasnt initialed by AI and it hurts Hyperions case, the first is still true I think (There are now 9 copies of Annex II in the court documents, so I could be wrong, I have no intention of looking again at all 9) and I still believe it implies the Friedens work for Hyperion (as does Annex I) but again that doesnt matter anymore either since we've gotten the Friedens contract (remember I told you they were fishing for them?). I never argued that the Arctic contract was valid, I argued in doing that we would get a signed Arctic contract, which we did. And again, the Arctic contract they presented wasnt a fake as you implied, it was an earlier version as the Friedens admitted, so who was the one making up silly suggestions? You, with your the lawyers made up that contract.

Quote:

I think you would reconsider that if you actually ever dealt with AInc For example David Wentzler, who did the AHI drivers for OS4 and Audio Evolution, also worked for AInc, quite recently in fact, and stated in a forum a few weeks ago that he is still waiting to be paid by AInc. And he's not the only one.

I'm sure he's not, but its also easier to get paid by a company that actually has money then by one that doesnt. In this situation, KMOS not Hyperion is the one with the money.
-Tig

Last edited by Tigger on 24-Feb-2008 at 02:56 PM.

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Quote:

I dont really care Cobra, I got here to work at 7 AM, started the EMI testing and I'm posting while I babysit the system, if I wasnt here at work, I'd be sleeping, working on the house or working on Efika, things I really do care about.

Speaking of EFIKA, you owe some screen shots.

_________________
Dammy

@Tigger

Quote:

Actually document 100, page 20, #49 says they used it first and thus its there trademark

You are right.
In Cause #3, Hyperion does indeed claim that they are the "rightfull owner" of the Boing Ball mark because they used that mark prior to AInc.(D).

Immediately after (cause #4), Hyperion adds that "in the alternative" [they are not the rightfull owner], nobody else can because the mark "has been in the public domain for substantial periods" and is "merely ornamental" and "not distinctive as an indication of the source of A(D)'s good."

This is another example of "pushing the most to get the least" (and another example of self-contradiction).
Here and there, the trial is sometimes looking like a childish circus to me.

Last edited by AmigaPhil on 24-Feb-2008 at 07:24 PM.

@samface

Quote:

samface wrote: @Dandy Quote: Dandy wrote: @samface If the Agreement says "should have access" this indicates (not prooves!) they might have (had) access. Nope, it's only an indication that they *should* have had access, nothing else.

Errrrm - what do you think why I wrote in my posting #468:
"That's completely right - it just indicates that they might have had access - just like Umisef asked - no more, no less.

Umisef just asked for an indication - not for proof or evidence."???

Really funny - you say "Nope" and then repeat where you replied "Nope" to...


Quote:

Dandy wrote: Quote: See the difference or still having problems understanding that (-> English 101)? Again, all you have is an indication that they agreed to give access which is far from the same thing as an indication of what actually happened. ...

So you finally agree with me?

_________________
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

Let's try this one last time...

The word "should" makes the difference here, Dandy. You're repeatingly pointing at and indication of what *should* be true while I'm trying to explain that it's not the same thing an indication of what really is true. In case you don't know the meaning of "indication", try replacing it with the word "symptom". Is the terms of the agreement a symptom of wether the terms were honoured or not? Of course not. However, if it turns out that the terms of the agreement were honored, one could say that is a symptom of the agreement. See how that only works one way?

Furthermore, try looking at the two sentences below again:

Quote:

Dandy wrote: @samface Quote: If the Agreement says "should have access" this indicates (not prooves!) they might have (had) access. Nope, it's only an indication that they *should* have had access, nothing else.

The logic here is

Statement 1: "A indicates B"
Statement 2: "No, A indicates A, nothing else."

However, I'm glad your inability to comprehend what people tells you atleast provides for some laughing material for you. That initself provides for some laughing material for me as well. Not that I'd expect you to tell the difference between laughing at someone or laughing with someone or anything...

Quote:

Quote: Again, all you have is an indication that they agreed to give access which is far from the same thing as an indication of what actually happened. ... So you finally agree with me?

I don't know, have you finally realized the difference between an indication of the truth and what according to an agreement should be true?

_________________
Sammy Nordström, A.K.A. "Samface"

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

Samworks D & C - Professional Web Development (in Swedish)

@Tigger

Quote:

Tigger wrote: @Dandy ... Actually its not a strong indication at all, especially if you read Olafs contract, which I am sure you still havent done. (Document 26, Exhibit 4).

I read the entire Exhibit 4 and found that § 2.01 commits Olaf (the buildmaster) to "grant Hyperion and it's contactors unrestricted, complete and permanent access to the CVS containing the reworked Amiga OS 3.1 Source-Code for the purpopse of developing further updates of the Classic Amiga OS including but not limited to Amiga OS 4.0. Hyperion and its contactors may also store new Source-Code on the CVS. ..." - but no mention that AInc(W) themselves did not have 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 ... If "parties" referred to the same parties as in the main contract, then how the heck did Hans-Joerg ever get access?

Exhibit 4 of PDF #26, § 2.01 commits Olaf (the buildmaster) to "grant Hyperion and it's contactors unrestricted, complete and permanent access to the CVS containing the reworked Amiga OS 3.1 Source-Code for the purpopse of developing further updates of the Classic Amiga OS including but not limited to Amiga OS 4.0. Hyperion and its contactors may also store new Source-Code on the CVS.
..."

Quote:

umisef wrote: Quote: I think what you mean is that they were not party of the development team - and that's right. Precisely. So your "indication that they had access to the CVS" just evaporated, because access to the CVS was a desired feature for parties to the development team, which you yourself say AI were not.

Where does it say that it's exclusively for the development team?

Where does it say that the ostensible IP owner (AInc(W)) is expressively not allowed to access it to check the progress of the work?

Exhibit 4 of PDF #26 is a contract between Hyperion and Olaf - how do you think they could enjoin AInc(W) from accessing it with that?

_________________
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

Quote:

grant Hyperion and it's contactors

This does not include Amiga Inc.

Quote:

Hyperion and its contactors may also store new Source-Code on the CVS

This only say that Hyperion may store code there, not that they actually did and isn't including Amiga Inc. in any way.

Quote:

but no mention that AInc(W) themselves did not have access.

When someone isn't included in a text like this, it would be more logical to assume that they didn't have access, as you can't list everyone that doesn't have access.

Edit: To clarify, hyperions contractors is the third party developers of the code, it isn't Amiga as amiga contracted Hyperion, not the other way around.

Last edited by Step on 25-Feb-2008 at 08:49 AM.

_________________
AMiGA

http://docs.justia.com/cases/federal/district-courts/washington/wawdce/2:2007cv00631/143245/101/

@umisef

Quote:

umisef wrote: @COBRA Quote: How can you breach a contract which has been abandoned and is no longer in force? If the other side has made a commitment to "honor the terms of the November 2001, agreement", that means that the other side has committed to letting you have a license until and unless you do something which would have had your license revoked were the 2001 contract still in place. As you (or rather, Hyperion) had not given a reciprocal commitment (at least mot in public), they obviously weren't bound by the 2001 contract, and could, for example, have walked away without risk of penalty. They could also have decided to not pay license fees when those would have come due, because they never committed to paying license fees. However, once Hyperion starts doing things which are in breach of what would have been their obligations were the 2001 contract still in place, KMOS is free to do the things AI(W) could have done under the 2001 contract, and eventually, revoke the license, in perfect compliance with the terms of the 2001 agreement, which they committed to adhere to. Which, in AI's current version of events, is exactly what happened. And while I agree that AI certainly did a spectacularly bad job at getting their story straight before they started talking, I must also say that their version of the story matches the observable events (e.g. Hyperion saying "We welcome KMOS's acquisition, and will work with them") a heck of a lot better than Hyperion's (i.e. "Who the hell is KMOS, and why do they think we have an agreement with them?").

Or you can read it like I and probably others read "We welcome KMOS's acquisition, and will work with them" as the beginnings of negotiations for a new contract.

I can't believe people continue to assume PR statements for the public's benefit represent signed and notarized contracts... That's the basis of Amiga Inc.'s case - press releases. Ofcourse, that is what they've done best over the past 8 years...

I think I will create a start-up. Make many announcements about vaporware. Lure investors. Release token products based on freeware. Then claim to be worth millions upon millions of dollars. Bill McEwen = genious.

@AmigaPhil

Quote:

AmigaPhil wrote: @Tigger Here and there, the trial is sometimes looking like a childish circus to me.

Welcome to America...

@Step

Quote:

Step wrote: @Dandy Quote: grant Hyperion and it's contactors This does not include Amiga Inc.

So for you Hans-Jörg = Amiga Inc.?

Quote:

Hyperion and its contactors may also store new Source-Code on the CVS Quote: Step wrote: ... [quote] but no mention that AInc(W) themselves did not have access. When someone isn't included in a text like this, it would be more logical to assume that they didn't have access, as you can't list everyone that doesn't have access. ...

No.
In my book it simply means that Hyperion asked Olaf for access.
It doesn't say anything about who else (aside from Hyperions (sub-)contractors) may or may not have 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)

@Dandy

Quote:

Where does it say that it's exclusively for the development team?

It doesn't.

However, you chose to ignore Olaf's email, which made it pretty damn clear he wasn't giving Amiga anything unless he got paid. Which he didn't (get paid, that is).

So the balance of likelihood is strongly in favour of AI(W) *not* having access.

Quote:

Where does it say that the ostensible IP owner (AInc(W)) is expressively not allowed to access it to check the progress of the work?

That would be IP co-owner, right? Because Olaf's work is owned by Olaf until and unless sold to someone else (which it was, see clause 2.02 of Olaf's contract). And Amiga had not paid for Olaf's work, and Olaf made it very clear that they weren't getting access to it until they did. Which they didn't. Hence, it is reasonable to believe "no access".

Quote:

Exhibit 4 of PDF #26 is a contract between Hyperion and Olaf - how do you think they could enjoin AInc(W) from accessing it with that?

Well, the CVS contains
(a) original OS 3.1 sources --- owned by AI, licensed to Hyperion, and Olaf's access presumably legalised at last by being a Hyperion contractor. AI are known to have had a copy of this.
(b) Olaf's 3.1 work. Owned by Olaf (until sold to Hyperion). Not licensed or owned by Amiga or anyone else outside of Hyperion and Olaf.
(c) Various 4.0 work. Owned by the various developers, until/unless legally sold to Hyperion, then owned by Hyperion. Not owned or licensed by Amiga, or anyone other than the respective developers and Hyperion.

In short --- there is no reason why Amiga *would* have access. At least not until Hyperion (who *do* have a reason to have access, and in fact have a contract granting them that access) sold all title and interest in OS4 to someone else. But Hyperion taking the money, yet not actually transferring the interest (such as the access to the CVS) to the buyer, was pretty much the bone of contention spelled out in McBill's email on the matter; Thus, it is reasonable to assume that the access was not transferred, because McBill complained about the lack of source access.

And yes, *OF COURSE* Hyperion could make an agreement with Olaf which not only says "The work you have done is now Hyperion's" (as the actual contract does), but also "and thus, you shall not make it, or any other IP of ours or our contractors which we store in the CVS, available to any outsider, such as for example Amiga Inc". In fact, Article V,b(I), while boilerplate, pretty much says that exact thing.

@amitv

Quote:

amitv wrote: http://docs.justia.com/cases/federal/district-courts/washington/wawdce/2:2007cv00631/143245/101/

Bad news for the boy from Belgium. Though not alot different from what I said last week.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Dandy

Quote:

Dandy wrote: @Tigger Quote: Tigger wrote: @Dandy ... Actually its not a strong indication at all, especially if you read Olafs contract, which I am sure you still havent done. (Document 26, Exhibit 4). I read the entire Exhibit 4 and found that § 2.01 commits Olaf (the buildmaster) to "grant Hyperion and it's contactors unrestricted, complete and permanent access to the CVS containing the reworked Amiga OS 3.1 Source-Code for the purpopse of developing further updates of the Classic Amiga OS including but not limited to Amiga OS 4.0. Hyperion and its contactors may also store new Source-Code on the CVS. ..." - but no mention that AInc(W) themselves did not have access.

No piece of evidence shows they have access, lots of evidence implies they dont but you dont want to accept it. Annex I was written by the Frieden Brothers, implying that its comment about the CVS means Amiga Inc, Hyperion and Eyetech have access instead of Hyperion and all the developers isnt something I would do, but feel free to take that incorrect path. There are 5 pieces of evidence that point to AI had no access as being correct.

1) The letter from Fleecy to Olaf
2) Olafs contract with Hyperion
3) Annex I of the Nov 2001 contract
4) McEwen letter to Evert requesting the source code
5) Olafs email to McEwen (about not being paid)

None of them say AI has access, Fleecy's letter and Olafs response which is attached strongly shows that AI didnt have access. The Contract with Hyperion wouldn give them access, Annex I doesnt mention Eyetech or AI at all, they are not present in the Annex, yet you think when annex I says parties, it means them, not all the people (parties) actually listed in Annex I and the ones who actually need access to the CVS.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.