@CodeSmith

He`ll know about it though and it WILL influence him regardless, assuming he`s a human being :o)

_________________
Fraggle

- insert profound text here -

@Colin_Camper

Quote:

I am starting to think that maybe Hyperion could (and should) win this!

Hyperion Entertainment should be very careful before claiming Amiga Inc became insolvent. If Amiga became insolvent before OS 4 was finished then they are probably losing everything because clause 2.07 does not seem to have any legal basis.

It also seems that Amiga would still own AmigaOS by all means (pages 4 and 5). The agreement says that Hyperion would "... acquire the object code, source code and IP of OS 4.0 ...". Further on Hyperion Entertainment emphasizes AmigaOS 4.0:

Quote:

Simply put, by operation of the Agreement, Hyperion alone became the owner of the Object Code, Source Code and all intellectual property of AmigaOS 4.0.

Thus if ownership of OS4 was trasnfered to Hyperion Entertainment it seems that there would be two owners of AmigaOS, Hyperion and Amiga Inc.

But problem for Hyperion is that it seems that OS4 was developed and sold under license from Amiga Inc. The agreement on pages 4 and 5 say that if Amiga Inc does not pay $25k then Hyperion can keep object code, source code and IP. It does not say anything about distributing or selling AmigaOS.

Therefore I see it inevitable that Hyperion must rename OS4. But until then Hyperion must clear up $25k payment issue.

_________________
Amiga Developer
Amiga 500, Efika, Mac Mini and PowerBook

@itix

Quote:

Therefore I see it inevitable that Hyperion must rename OS4. But until then Hyperion must clear up $25k payment issue.

How can they pay the lawyers if they are being accused of being insolvent? Do the lawyers have a vested interest, are they on retainer or is it pre-paid legal? Are these high priced lawyers? Are they being paid by insurance? Are they borrowing and begging to pay the lawyers? Is someone borrowing against their house to pay the lawyers?

What do we gain if either side wins the case? I know everyone says that we all lose if one of them lose. What do we gain if one of the parties lose? If the IP (intellectual property) is transferred to someone else, doesn't one side get more powerful? Wouldn't it be better to have the software and hardware under one company? Wouldn't it be better if only the strong survives?

@Colin_Camper

Quote:

Colin_Camper wrote: The judge must be aware of the Kent scandal and will use this as a judgement of character and how much weight to put in favour of the the people behind Amiga/Amino.

I highly doubt that. Kent officials aren't about to let it be called a scandal, the last thing they want is voters questioning why they did no background check on the company. Both sides are very happy I am sure to let the whole thing fade quietly into history. And I see it as very unlikely that Hyperion could enter this as any sort of "evidence". No one is saying they were a victim here, and even if they were no fraud was proven in the deal. At best the judge may be aware if someone clued him into it on the side. But if he is a person of integrity he can't use the info in his decision making process. And lets not forget this may go to a jury in the end, and they'd be even less likely to ever hear abut it.

Last edited by fairlanefastback on 28-Jul-2008 at 06:03 AM.

_________________
Pegasos2 G3 running AOS 4.1 and MorphOS 2.0
Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@Chuckt

Quote:

Chuckt wrote: @itix How can they pay the lawyers if they are being accused of being insolvent? Do the lawyers have a vested interest, are they on retainer or is it pre-paid legal? Are these high priced lawyers? Are they being paid by insurance? Are they borrowing and begging to pay the lawyers? Is someone borrowing against their house to pay the lawyers? What do we gain if either side wins the case? I know everyone says that we all lose if one of them lose. What do we gain if one of the parties lose? If the IP (intellectual property) is transferred to someone else, doesn't one side get more powerful? Wouldn't it be better to have the software and hardware under one company? Wouldn't it be better if only the strong survives?

Amiga Washington is being accused of being insolvent in the past but hiding that from Hyperion at the time. The current Amiga is Amiga Delaware. Hyperion contends that Amiga Washington hid the fact from them, which was material to their contract with them and then transferred assets to Amiga Delaware. They say that because the insolvency was hidden from them they acted in good faith at the time thinking that Amiga Delaware was the proper heir to Amiga Washington's rights, but that now they know better that is was a sham. They say that the same people ran both companies and that it was an improper conveyance and a purposeful deception essentially. Its a very long and complicated story unfortunately. Amiga Delaware (the current Amiga) is not suspected to be broke at all.

If Hyperion wins it seems nearly certain that OS 4.x will be available on the Sam board from Acube.

If Amiga wins the future is entirely uncertain for us. But with the focus on AA2 primarily and supposedly OS5 to a degree I'm not sure if there would be much room left for any OS4 plans. Especially since they are not believed to have people who know its inards and even if they win against Hyperion the Friedens claim the source code is their's anyway. Amiga may be in the case more about protecting their ownership of all copyrights at this point. In Hyperion's countersuit they claim that due to Amiga Washington's alleged insolvency that they have a perpetual license to use the Amiga OS 4 name.

Last edited by fairlanefastback on 28-Jul-2008 at 06:18 AM.

_________________
Pegasos2 G3 running AOS 4.1 and MorphOS 2.0
Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@fairlanefastback

Quote:

Amiga Washington is being accused of being insolvent in the past but hiding that from Hyperion at the time

who wants to go through ANN archives to find Ben H commenting on the speech in court where Bill M says they are insolvent. all you have to do is look at the dates to see when he was aware of it, not if.

_________________

@fairlanefastback

Quote:

I highly doubt that. Kent officials aren't about to let it be called a scandal, the last thing they want is voters questioning why they did no background check on the company.

It doesn't matter what Kent officials think, just type 'kent and amiga' into google.

No-one doubts that Amino went insolvent. they were ordered by a court to pay Bolton Peck and they didn't pay him or appeal the decision. Right there is the definition of insolvency.

@Colin_Camper

Quote:

Colin_Camper wrote: @fairlanefastback It doesn't matter what Kent officials think, just type 'kent and amiga' into google.

Something the judge has no reason to be doing. You were saying the judge must know and will take it into account somehow. Even if you emailed him, left him a voicemail about it, (or even if someone else did) to "clue him in" as it were,for impartiality he's not supposed to be looking at such in most cases. And since its not material to anything in the lawsuit this is a case where he definately should not be looking at such. And even if he did look at it out of some human curiousity there is no victim (save Kent taxpayers). No city official cried foul, beyond one city council member criticizing the mayor in essence for not checking out Amiga enough. But even so no one said it was a fraud. It got left at failed negotiations over advertising rights and non-payment.

Don't get me wrong, if people have clued the judge in and he does factor it in in Hyperion's favor I'm not going to be sheading any tears over it, it would seem like karma working itself out IMO. But still, the judge shouldn't do such if he values the integrity his position is supposed to stand for.

_________________
Pegasos2 G3 running AOS 4.1 and MorphOS 2.0
Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@Colin_Camper

Quote:

It doesn't matter what Kent officials think, just type 'kent and amiga' into google.

It is not related to this case. It has as much as value than bringing in the fact that Ray Akey was fined for speeding. It simply is not relevant.

Quote:

No-one doubts that Amino went insolvent. they were ordered by a court to pay Bolton Peck and they didn't pay him or appeal the decision. Right there is the definition of insolvency.

Hmmm... I investigated more about insolvency/bankruptcy clauses (source):

Quote:

Why Put Ipso Facto Clauses In Contracts In The First Place? If these termination provisions are generally unenforceable, why do parties seem to include them in almost every contract? There are three main reasons. Force Of Habit. One reason is that under the old Bankruptcy Act of 1898, replaced by the Bankruptcy Code in 1979, these ipso facto clauses were enforceable. Over the years, lawyers and businesses got used to including them in their contract forms and they have continued to write them into many agreements. Since it's always possible that the Bankruptcy Code could be changed to reinstate the old rule, lawyers often see little reason to take them out. It Takes An Actual Bankruptcy. Another and perhaps more important reason is that the rule applies only if a bankruptcy is actually filed. If an ipso facto provision provides that the agreement terminates upon a party's insolvency, and no bankruptcy case is ever filed, it's possible that the solvent party could terminate the agreement using the ipso facto provision. But be forewarned: if a bankruptcy case is later filed, an insolvency-based termination made before the bankruptcy filing may not be enforced in the bankruptcy case. This means that the debtor may still have a chance to retain the rights under the contract, including assuming or assigning an executory contract during the bankruptcy case. A Limited Exception In Bankruptcy. A third reason is that an important, albeit limited, exception to the rule applies even after a bankruptcy is filed. The exception stems less from the ipso facto clause itself and more from the rules governing assumption of certain types of executory contracts, including intellectual property licenses (at least in some circuits). Section 365(e)(2) of the Bankruptcy Code, in conjunction with Section 365(c)(1), provides that an ipso facto clause can be enforceable if the debtor or trustee is not permitted by "applicable law" to assume or assign the executory contract. Simply put, if applicable law provides that an IP license or another executory contract cannot be assumed by the debtor or trustee without the other party's consent, then the non-debtor contracting party can force rejection of the license or seek relief from the automatic stay to terminate the agreement based on the ipso facto clause. Although an analysis of the law governing assumption and assignment of IP licenses and related agreements is beyond the scope of this post, you can find a detailed discussion in an earlier one entitled "Assumption of IP Licenses In Bankruptcy: Are Recent Cases Tilting Toward Debtors?"

So it seems that if Amiga Inc was insolvent Hyperion Entertainment could have enforced execution 2.07 clause. But problem here is that by which definition Amiga Inc was insolvent. The contract does not define this. While Amino did not have money (cash) to pay Peck they had assets they could have sold to do so.

I also think that this kind of clause would require legal proceedings before it could be completed. Since there is no evidence that clause 2.07 was executed it has not been executed.

_________________
Amiga Developer
Amiga 500, Efika, Mac Mini and PowerBook

@all

2 more dated July 25, 2008

direct link to filing #113

direct link to filing #114

#6

Last edited by number6 on 29-Jul-2008 at 03:23 AM.

_________________
This posting, in its entirety, represents solely the perspective of the author.
*Secrecy has served us so well*

@number6

I Motion

COME NOW defendant/counterclaimant Hyperion VOF and Amiga, Inc and move the Court pursuant to FRCP 26(c) to in the name of all that is good please get this farce over and done with. It's been what, two years now? It's not funny any more. Seriously.

DATED this 28th day of July, 2008

@fairlanefastback

Quote:

...And lets not forget this may go to a jury in the end, and they'd be even less likely to ever hear about it.

To my mind, if it DOES go to a jury? The most serious issue will be keeping the jurors awake while explaining the whole bloody long thing.

_________________
¤¤ Official Hyperion Zealot ¤¤

(No, I didn't type that with a straight face.)

@Yo

"We, the jury, find this case to be too stupid to vote on."

_________________
"Anyone with a modicum of reasonableness may realize that it is like comparing the ride in the world to descend the stairs to catch the milk in the house."

Google Translate

@itix

Quote:

So it seems that if Amiga Inc was insolvent Hyperion Entertainment could have enforced execution 2.07 clause. But problem here is that by which definition Amiga Inc was insolvent. The contract does not define this. While Amino did not have money (cash) to pay Peck they had assets they could have sold to do so.

It's very simple, you use US Code's definition of insolvency. Under US Code, good luck trying to get AI-WA declared insolvent, they clearly did not meet that threshold.

_________________
Dammy

@all

Frankly, of all the documents ever filed, #114 is the only one of any interest to me. Anyone reading it who knows legal jargon shall instantly recognize what it signals.
Perhaps an attorney would like to summarize this one for our members, just so there is some credibility behind the analysis.

#6

_________________
This posting, in its entirety, represents solely the perspective of the author.
*Secrecy has served us so well*

@number6

Quote:

Perhaps an attorney would like to summarize this one for our members, just so there is some credibility behind the analysis.

Guess none of them own Amigas.

_________________
Sam

@all

Quote:

-Sam- wrote: @number6 Quote: Perhaps an attorney would like to summarize this one for our members, just so there is some credibility behind the analysis. Guess none of them own Amigas.

www.impactfund.org/pages/articles/articles/confidentialityorders.pdf

So thinking about this we know Amiga has submitted a number of redacted documents to the court. And we know from a previous case that Bill hates it when info about them gets out onto the internet from court proceedings (from the same document with the anonymous Montana doctor story). So it would seem that Hyperion had to agree to this if they ever were to have any hope of this case proceeding in any timely fashion. Otherwise if they didn't I suspect Amiga told them they'd fight them tooth and nail on every document request as being confidential.

Last edited by fairlanefastback on 29-Jul-2008 at 05:23 PM.
Last edited by fairlanefastback on 29-Jul-2008 at 05:22 PM.

_________________
Pegasos2 G3 running AOS 4.1 and MorphOS 2.0
Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@number6
Quote:

Perhaps an attorney would like to summarize this one for our members, just so there is some credibility behind the analysis.

Attorney or not, clearly AInc. and Hyperion don't want their dirty laundry hung out for all the world to see. After all, potential investors may not pay much attention to what comes to light on some message board, but they could wise up real quick if they saw internal documents presented during discovery.

Last edited by jorkany on 29-Jul-2008 at 05:47 PM.

_________________
Here for the whimpering end

@fairlanefastback

Thanks for the link.

So now - lots of dodgy stuff that has been going on can be kept hidden?

Wiow - as if all the dodgy stuff we DO know about wasn't enough.

_________________
Sam

@Thread

Re: #114

I must admit I am starting to find this whole law suit saga baffling.

Here we have two companies, both with virtually none or no income stream, fighting tooth and nail and hammer and tong for IP far less valuable than - say Michel Schulzes AROS-64 or PPC-AROS.

Very strange and bizarre.......