Athiest's first hand court report.

From moobunny:
http://moobunny.dreamhosters.com/cgi/ ... age.pl/amiga/146861.shtml

This appears to be a genuine report, and makes more sense as such than another that recently circulated.

I have not read the court documents and do not intend to.

I am biased towards AI for the simple reason I was first attracted to the OS4 project because of the OS5 plans.

I don't have anything whatsoever against Hyperion.

Hopefully mediation or arbitration may intervene, rather than a long and expensive, and I believe rather pointless court case.

This hearing appears to be the initial defence (Hyperion) to the plaintiff's case (AI). It is a proceeding common all over the world, to establish that there is in fact a case, and not just a "plaintiff" is submitting a case that could be solved by other means.

From Athiest's report, it is very clear what the defence is trying to argue.

That in transferring assets from AI to Itek and KMOS, the status of the OS4 contracts, IP rights etc.,. may not have properly been done. An argument that the IP rights had in a sense been left on the street for anyone to pick up.

It is a possession argument, but it depends on an inferred discarding of contracts by AI in the transfer of assets. The problem is IP rights do not become public domain simply because a signed agreement might not have been properly made - that is the business of AI and those other companies.

Likewise, Hyperion might also be arguing that monies owed have not been paid, that the IP rights are being exercised in order to recover costs. This would hold if AI, or whoever, was unable or unwilling to pay, which does not seem to be the case at this time.

Make of it what you will, but if this thing plays out then AI will get the source code (including that of contractors) and Hyperion will need to sort the rest out with the contractors. Whatever the relationship between AI iteck and KMOS, the IP has not just been given away to Hyperion - that is why going through with the court case is so pointless.

I am hoping sense, and good legal advice, will win out and a mediated solution is worked out soon. Obviously Hyperion's best hope is to get a bigger slice of the OS4 cherry, and some concession is made re SAM and continued distribution, just to make things work (full legal entitlement is an abstract question).

Clearly AI wants the source code quickly for its OS5 plans.

There is an element of legal brinkmanship in all this, which is a pity.

@GregS

I read parts of the IRC chat posted on the bunny. I have my doubts as to whether Ben Hermans was even on IRC there. It doesn't sound like him at all.

@Billsey

There seems there is a false IRC going around.

Atheist's report sounds eye witness, and he states that no-one else was there.

@GregS

As I have stated elswhere, I can confirm the IRC log is false, it gives the illusion it is Ben Hermans. I can confirm it was not Ben, nor that it was anyone involved with Hyperion.

@Mikey_C

Quote:

Mikey_C,
It Doesnt mean the IRC log is false, although it might be a good guess, it is pretty close to atheists post on the Moo, It just means that Zornik isn't Ben Hermans, I haven't read anywhere where he states that he is Ben, unless it was missed from the pasted IRC log?
thinking it was Ben is only people putting 2+2 together but getting 5 ( speculation)

As Zornik quoted
[14:40:42] <Zornik> Still several sleeves up their ace. Former managing partner is a lawyer now at a big Belgian lawfirm.

Would he speak of himself like that!

How many other user's come from Belgium?


There's nothing we (the Punters) can do about the court case, But hope that its all resolved quickly for the benefit of those wishing to buy New Hardware with OS4

@AJS

My feeling is that the first report, is also very close to Atheist's which is clearly first hand. But Atheist seems pretty clear that there was nobody else (there could have been, just that he didn't notice anyone else would be my summation).

Hyperion is the defence, they have to turn up and put arguments of defence. The abandoned-ware argument is a natural defence, but hopefully this will not go on as a full court case as such a defence is not a strong one, and IP issue can only be resolved one way in the end.

It is as you say all in the hands of others and we can do precious little about it.

My hope is some swift mediation, or arbitration, or just out-of-court settlement.

Quote:
Hi GregS,

I was seated on the last bench of the courtroom to the right.

Had anyone else entered, they would have sat in the back on the other bench to my left, and would have come in after it started (as I went in and sat, we were ordered to rise, because the judge was entering) and left before the hearing was recessed for me not to have noticed them. (The door squeaked and I would have probably noticed another person entering.)

Although, I suppose I don't really need to reply as, it's already been determined that who ever it was in IRC _more than likely_ was NOT there.

Surprisingly, it was mostly accurate except for the slant/spin.

No one called anything entered an outright lie or said "that" should not be admitted. The judge was totally impartial as no arguments were entertained. But, this is the opening phase, and this, except for trying to strike something from evidence if necessary (I would imagine), seemed to be the way it works.


As I said, the judge stated that both parties should try and settle _without_ proceeding through a trial (is this allowed? more money for the justice system if they duke it out!), meaning that (I would think) neither side necessarily has THE winning hand, outright???

@Atheist

Do you know hen the next hearing will be held?

@Atheist

Based on past experience I would suggest this took place:

- At the end of the hearing legal team got onto client (phone? email?) bringing them up to date with what transpired.
- Client got onto internet, or told someone else a bullshit version of what went on, and provided a spun version.


Given this went on in the Thendic/Amiga court case and at other times too I would be prepared to bet substantial amounts of money on it.

Especially given:

Webchat@2308fbe7.2470642c.isp.belgacom.be

Teleportation invented already?

Quote:
Hi Raziel,

At the end of the hearing they said, "court is in recess". I thought that the judge was coming back in 10 or 15 minutes to tell us when the next time to meet would be. Instead it was in recess until his NEXT (different) case that afternoon.

The next date was not announced then.



Hi Mitch,

Yes, you're probably right, except for, whoever it was in that IRC chat, I doubt that Hyperion's lawyer would give him the impression that HE had, knowing I was there and saw how the judge was totally neutral when he spoke to both parties.

@Atheist

Spin for the troops. I wasn't implying that the lawyer gave that kind of impression, just that somewhere in the transferral of information intent and facts got mangled up to become a distortion.

Not that we haven't seen negative briefing going on a million times before across this community or anything, along with downright lies being presented as "truth".

@Atheist

My view, and not having read the documents, is that they fight it out in court, AI's IP would win out - but the mess would be immense, re what parts, who gets paid what, whether there is enough to pay for the vital bits and what is deemed not essential.

From what I can work out this is a preliminary of a preliminary, that is a hearing for a restraining order, as a lead in for other things to be fought out.

Out-of-court settlement would be ideal. Arbitration should be a good way to get things resolved with the least disruption.

BTW I was not doubting your eyesight or honesty, but I always try when referring to someone else's report, that there is always some fallibility that must be logically allowed.

The accuracy over some facts of the purported first report, and the clear slant in interpretation, actually seems more like the result of communications from court than first-hand observation. Some of the interpretations just did not make a lot of sense.

Your report, was clearly first hand, and very well written (people should not underestimate how difficult it is to work out what is happening in a court case).

Thanks Atheist for a readable and reliable report.

@GregS

Quote:

Then what do you base your opinion on?

Putting this as neutrally as I can:

- The rights that are under dispute are in a contract signed between two parties, which you have not read(?). Both parties claim the other is in breach, and the defendant claims that the plaintiff does not even have the right to as it is not the party with which the contract was signed. The plaintiff is currently arguing that there was an implicit acceptance of them as the other party in the contract by dint of fact that the defendant carried on working with them in that role, and explicit acceptance via emails, even though the contract requires written consent. A tricky one.

- The assertion that Hyperion have been in material breach of AInc rights is predicated on a premise that has yet to be proven.

- The assertion that AInc is in ( and has been since the start ) material breach of the contract is evident as they did not meet preconditions, so long as it is ruled admissable.

- ExecSG, if you read the contract, and letters, has only recently in the mind of Amiga Inc been part of Amiga OS4.0, right up to a month before the lawsuit was brought against Hyperion, Amiga Inc. was referring to it as outside of Amiga OS4.0 and outside of the agreement and even owned outside of Hyperion ( something that they are now claiming is not the case )!

- It is debateable whether or not a lawsuit in the USA can hold water over product changes and enhancements made in the EU, or even be "enforced" ( beyond a fine ) in the EU under existing US/EU treaties or agreements.

- It is disputed whether Amiga Inc. has full rights over the Amiga OS3.x source tree let alone AmigaOS4.x.

It isn't black and white, and even if it goes one way or another I doubt it is the end of the dispute. Hyperion is far from in a weak position if you read it without a predisposition to favour one over the other. Amiga Inc also has far from a weak case, but has a lot of work to do to stake a realistic claim or to get anything tangible out of this.

So if the contract isn't ruled null and void, that the rights of Amiga Inc are upheld, they could end up with, at the best:

1. Hyperion stops shipping or intending to ship AmigaOS4.0.
2. Lots of individual lawsuits as they try to chase down a transfer of rights from the individual developer owned sources.
3. Rights to work performed by Hyperion on the source tree other than ExecSG ( which doesn't amount to a hill of beans ) solely enforceable in the USA.
4. A fine for Hyperion.

To me this is just a threat that is expected to force a settlement out of court due to extreme crushing cost. At best Amiga Inc end up with very little and a lot of work to do, next best ( for them ) is that the outcome forces an impasse, and at worst ( for them ) is that the judgement goes against them and they get nothing out of it and the position doesn't get any clearer as they then have to persue Hyperion in EU courts....

Again, this is why I think they wanted the source code in discovery so regardless of outcome they have a "copy" of whatever missing information there is and I would guess, the onus then comes down onto Hyperion to enforce any breach of IP that results from Amiga Inc using the information submitted in discovery in a future product.

If they were so confident, they wouldn't need that in discovery.

@Mitch

If it was fought out to the last, with infinite funds and for no particular practical purpose AI has the IP for the OS and all of the developments of that system.

It does not matter if it is a handshake, the IP for the OS extends over all its parts and developments of those parts.

IP rights does not mean ownership of source code, but it can restrict and licence works based on that IP whether its original source code has been seen or unseen.

If the work is commissioned by the IP owner, unless specifically exempted all that work belongs to the IP owner - provided of course they can pay for it.

At best, people can keep their sources, but they cannot market them, they can only deny them, presumably because they have not been paid for them.

IP law has since the 1980s been consolidated with reciprocal rights across most of the world. Since the 1990s look and feel rather than the actual digital composition of code has been the accepted test of IP identity.

I am not saying anything about the contracts, licenses, breeches, deals, money or anything. I am just saying, as I have said elsewhere, that there is no question about IP and how it is applied.

I am also not saying what is just, or right. I am saying with legal funds, prepared to pay a fair price for everything that belongs to OS4, it would end up in their hands. But this is no simple thing, it would be very very messy and by the time it was done, we would be having holidays on the moon.

Fines don't come into it unless someone decides to ignore a court order.

The court case is about a restraining order, and possibly a return of property (from what I can make out from reports of the case).

I do agree this is all about negotiation and brinkmanship by both parties. The IP cannot be questioned, and Hyperion cannot be cut out of things with out paying up.

@GregS

Unfortunately once you sign a contract handing over IP rights to any extent, unless that contract is found in material breach in your favour ( i.e. the other party ) then the rights to the IP are diluted regardless of how many times the IP holder stamps their feet. Developments of every new line of code by a third party does not come under the original IP, it is not a "virus" like thing by any means.

IP covers patents. This would require a reciprocal agreement on software patents with the US/EU which is actually a total quagmire.

Copyright covers the rights to copy what is rightfully the copyright holder. Rights to modify source is what would come under the contract, rights to new source would not. It is very distinct in domain and that is why in such contracts you have to write a clause covering it.

Contracts tend to stipulate who owns what IP rights at what given point. If AmigaOS4.0 has been released then the buy-in clause that triggers a transfer of rights held by Hyperion ( note: Hyperion ). Hyperion is disputing that these rights include those of third party developer work ( modification or not to be determined ), and especially ExecSG whose copyrights ownership were not transferred into Hyperion in the first place.

If you read the court documents as well as specific performance Amiga Inc are seeking compensation (i.e. a fine ).

It isn't as black and white as you make out, sorry, and you haven't addressed my point about enforcement in the slightest.

I'm sorry but as it is evident you are talking in the most general terms until you have done reading the court documents in question there is little point in continuing the conversation.

A contract is a contract is a contract. The question that they are having to address in court is whom has materially breached the contract, and which takes precedence. Then if any of the claims that Amiga Inc brought to court should be fulfilled.

@Mitch
Mikey_C wrote:
Quote:

From http://3cag.net/forum/viewtopic.php?t=370

P.S. It's good to have you back.

@Atheist
Quote:
I think we can all agree the judge in correct. Both sides should be avoiding a full trial.

I suppose the only positive thing that has come out of all this is the curtain of secrecy behind Hyperion's management of the project is coming to light. Why did it take them years to finish? Why did they name the releases in that funny way? Why was there never a future product road map produced? These are questions their customers have always wanted answered yet Hyperion have remained totally silent on.

I think both sides of this conflict are quite insane to be fighting over such a tiny morsel of market. The management teams of both companies have totally failed their customers. And while these managers fight it out we are left with no products and no future to look forward to. They have literally taken the fun out of computing by allowing the conflict to escalate to this point.

Hi @AJS

How many other user's come from Belgium?

Not!

That's what fooled me was the belgium irc login.

It sounded good anyway. Amiga Inc is still the loser!

@Mitch

But Mitch this neglects that Hyperion arguments on the day brought forward the argument that AI's had technically failed to transfer IP rights to Iteck and KMOS.

The argument recognises the existence of these rights, it is proposing however that they have been abandoned in transfer.

Having been through one court case, I am not in the position to thoroughly study the documents, hence I am confining myself to the generalities as they are reported from the court itself.

As for saying it is black and white, I am saying the opposite, to sort this thing out legally, without arbitration or settlement, would be very very messy. All I am saying is that the big issue of general IP over the OS resides with AI. Hyperion gaining the IP is there, based on the liquidation of AI, in effect being a reserved asset precontracted to be sold to Hyperion (based on Bills public statements when this question came up long before).

I am sorry I misread your "fine" reference in the strict sense. Compensation is the normal Commercial Law tort.

Now, AI's offer of $2 million, also recognises Hyperion's rights for fair payment for their efforts (I am not saying the amount is a fair payment - just that the offer recognises this).

The real issue is one of money and control over the trademark. Settlement would require compromise by both parties. The IP issue is a red herring, I do not believe it is really at issue - but rather the legal platform from which settlement needs to establish in order to sort itself out.

Personally I would prefer swift arbitration of the dispute and the quickest means of resolving things, mediation in a sense has been done by the long prior negotiation that led to this.

A full court case and ruling would seem a silly option. But who knows what may eventuate.

@GregS

I guess what I don't follow more than anything else you have said is why having been in a court case means you can't read the current documents. If it is a personal thing, I have to respect that ( i.e. you just can't face it, the thought makes you sick to the stomach ). If it is a legal thing then surely you are declaring some kind of material interest?

Regardless, I will try to stick to the generalities, although it does limit the legitimacy of the discussion.

The transfer of IP

This is far from the lynchpin of the Hyperion defense, but it is an acid test that Amiga Inc need to pass before we get to the later stages:

1. Amiga Inc need to prove infringement of patents.
2. Amiga Inc need to prove infringement of copyright.
3. Amiga Inc need to prove infringement of trademark.
4. Amiga Inc need to prove breach of contract.

I don't think that just because Amiga Inc. ownership of patents, copyrights and trademarks has gone unchallenged before now it sets a precedent that it must go unchallenged.

What if

Say a miracle happenned and the judge ruled unequivocably in favour of Amiga Inc on this issue That Amiga Inc. does own the patents, does own copyright of Amiga OS 3.1 AND the Olaf Bartel rewrites what can Amiga Inc. get out of this if the contract has to be enforced?

1. A legal right to demand access to the Amiga OS 4.0 to determine what is theirs and what is not. Possibly. I'd question whether or not this is practical, and would just lead to further suits in Europe. But this leads into point 2 as to what they would have to be shown in order to satisfy any court order. This is probably what they are really after.

2. A legal right to the Amiga OS 4.0 product definitions as defined in the original contract. This does not include ExecSG, as what was originally defined was a WarpUP loader. It would probably cover any rewritten Amiga OS 3.1 based core files ( such as the basic set of libraries ) but would also probably be reduced to a non working state by removal of all items that are not covered by Amiga Inc. copyright. This could exclude:

2.1 Work not performed directly by Hyperion on the product.

2.2 Work performed as part of Amiga OS 3.5 and Amiga OS 3.9 ( as revealed in the depositions, Haage and Partner refuse to hand over their changes to Amiga Inc ).

2.3 ExecSG, as already covered.

2.4 Additional features, artwork, contributions, installers, device drivers, retargetting layers, documentation, developer tools.

3 A fine for Hyperion.

4 A block on all further releases of a PowerPC Amiga OS.

For want of a few hundred dollars a kingdom was lost. Even in receipts that Amiga Inc submitted to the court the amount of funds transferred to Hyperion does not cover the basic term of the contract, and that is before the court considers whether or not the 6 month clause was met by Amiga Inc!

What Amiga Inc is up to

I think there is one end game for Amiga Inc in this. That is:

1. Neutralise ( further! ) any PowerPC releases of AmigaOS 4.0.

2. Get the "portable" sources to help write an AmigaOS 5.0 for whatever platform Amiga Inc has in mind without any competition.

As for the agreement with ACK, give me a break, do you really believe any of that arrogant piffle? At best it will be a sop to pacify a small kernal of buyers before the rug is pulled.

Why this doesn't bug you is that as you say, you were only intereted in AmigaOS4.0 as a pathway to a nebulous AmigaOS5.0 future. OK, fair enough, however let us not pretend that Amiga Inc blocking of AmigaOS4.0 being released on any other hardware than the narrowest definition in the original contract was anything other than playing hardball to force Hyperion back to the table to negotiate. Where was the interests of the market served then ? Where was the interests of the buyer served then?

The best thing that can happen at this point is that the "ancestral" AmigaOS sources continue to be developed. Hyperion have proven ( with their peer group of developers ) that they have what it takes to do a damn good job of it. Amiga Inc, what have they proven, ever?

If Amiga Inc really wanted to release an Amiga OS 5.0 and had done a lick of useful work to make it happen then they would have abandoned this drawn out fight a long time ago and dropped in a replacement kernel. Because they have just played a "what if" waiting game, not only has the market dried up even further, they have put themselves behind. I wonder how on earth any venture capitalist worth their salt would ever throw more than 50 dollars at this kind of never never planning.

The worst thing you can do in business is to pick a fight with another business. No one ever comes out looking good, and no one involved ever benefits. Plans get put on hold "just in case" or "because there is no point investing in this because we might get our way".

I hope that Amiga Inc do win the court case, because it will be really amusing watching them struggle trying to use petunia on warpup as a base for building on something that won't even compile.

Idiots. If they spent even half as much time contemplating legal action and chasing dreams in productive activity then they would have technology demonstrators out there of AmigaOS 5.0 working on some foreign kernel and I might just start to concede they have a point.

But they don't do they.