Access Denied: Amiga Inc loses first stage

Amiga Inc has lost its first stage in its battle with Hyperion VOF over the rights to AmigaOS4.0.

On the 11th June, 2007 the court denied the injunction.

This matter is before the Court for consideration of a motion by plaintiff Amiga, Inc., (?Amiga?) for a preliminary injunction. Oral argument was heard on May 31, 2007, and the matter has been fully considered. For the reasons set forth below, the Court DENIES plaintiff?s motion

( note: we really need the PDF up on Justia ).

[NOTE] The above was submitted as a news item by Mitch. However given the nature of this topic to be volotile, it has been posted in this forum instead.

@Mikey_C

Link

@all

This is a well written and well argued ruling. And I think a good step towards resolving the problem, as arbitration becomes a very real option.

RICARDO S. MARTINEZ, the judge, has in preserving the status quo until "trial" has in effect sent a very clear message.

Neither side has a killer argument, nor killer evidence. It would be a very very messy "trial" producing quite unpredictable results. Going to further court remedies seems a highly risky venture for both sides, and very expensive.

The judges summation of arguments presented appears concise and to the point. His faulting of Amiga Inc's case rests on no-irreparable damage, and not on any strength or weakness in the evidence itself.

His comments appear to amount to a general underscoring of danger and weakness, it appears to be advice not to proceed further in trial, without giving such advice. Both parties should see the writing on the wall - hopefully.

Arbitration is far less risky, and could quickly resolve things.

AI going to trial could well lose its IP rights, and Hyperion could just as easily lose its rights in development and distribution. Mutually assured destruction may well be the most likely outcome.

arbitration on the other hand, is more likely to preserve the original intentions and with compromises both sides gaining the best achievable outcome.

@GregS

Actually the judge can't rule to dismiss a case out of hand at this stage, he is ruling purely on a preliminary injunction. He either supports the injunction, or denies it. That is his sole choice.

Amiga Inc has to provide evidence supporting their claims, they clearly haven't and haven't shown cause for an injunction. It is quite a condemnation of the evidence that Amiga Inc has brought to court, not least where he points out that Amiga Inc's evidence is unreliable because a dated document cites an attachment that is many days into the future ( OOPS!!!! ).

I seriously doubt that Amiga Inc brought anything less than their a-game to this. Why? Because they desperately need an injunction, they desperately need the source code. An injunction and the source code would put Hyperion on the back foot and Amiga Inc would be able to advance with their plans at relatively little cost and risk to themselves. Now they both face a delay before a jury trial is arranged, booked and the jury selected ( and goes through the defense and plaintiff counsel selection and rejection procedure ).

I doubt that Amiga Inc has much more evidence than they do have at this point otherwise they would have shown it, it would have been totally insane of them not to. If their legal counsel told them not to then there is either something wrong with it ( it prejudices their case further ) OR worse than this, their counsel is incompetent.

Amiga Inc's best interests are served in settlement and co-operation, simply because the alternative is to go under with money wasted on legal fees.

If I was entirely biased against them, I'd be sitting here with relish willing them to go on, but I don't want them destroyed. They should use what money they have to eke out a compromise now TAO is dead ( although I suspect that the new owner of the IP is the same venture capital group that owns Amiga Inc in reality ) and use it to pay for some serious developments and when they have a product near launch have budget to advertise it.

Oh, and they need to partner with a better hardware provider than ACK.

A jury trial is a BIG mistake, relying on the much touted xenophobia of the American people - favouring ones own countries companies at least - is a BIG mistake as jury selection criteria will see to that.

The idea with selecting a jury trial would have been to overwhelm Hyperion with the sheer cost of it facing it - the same reason you bring 4 attorneys not 1 to an injunction hearing. Now that Amiga Inc have all the work to do, it is they that will be dreading the Jury trial, especially with the bad press from Kent....

Mitch.

@Mitch

You may have misunderstood my meaning, as it closely parallels your own.

If the new owners of Tao are the backers of AI, this could become something critical.

My suggestion, is that OS4 should be defined as full desktop version of the OS compiled for PPC CPUs. But a cutdown version supporting AIs baby ported onto whatever and also supplied as a separate add-on for the full OS4, is a solution.

My bias is based not on AIs plans, which I know precious little. But on the following.

1) A major division between OS proper (machine interface) and application environment (general user interface), is a necessary step forward.

2) OSes, even OS4 has evolved to a point where I consider too much has been planted in OS functionality, that properly belong as general tools within an application environment.

3) OS4 has the virtue of being small, versatile and robust, and easy to use, it has the drawback of being a traditional desktop environment.

4) An application environment is a very different thing to an OS desktop, it is a task orientated environment capable of evolution (rather than a place where discrete applications simply run).

This can be all considered completely irrelevant to the court case, it may not even be true of AI's plans. But I genuinely believe if any part if true, there is a way out of his mess, that could be good for everyone.

I don't know of the frictions that lead to this case, I can see why AI wanted to lance the boil, but it is now at a different level. One aspect of this is speed, I believe the major reason AI launched the injunction was because they need to get moving. Swift resolution, and not an abstract legal debate over contracts and IP is the real issue.

Arbitrate, compromise and move, I hope, is now the actual agenda. I hope I am right.

@GregS

Quote:

What is the basis of this thought? Only because they had a deal some time ago?

@Helge

I was referring to Mitch's speculation in the post above mine:

"although I suspect that the new owner of the IP is the same venture capital group that owns Amiga Inc in reality"

It crossed my mind as a possibility also, that is all.

There is a lot of confusion online as to what this really means and what the court has underscored as issues. I thought I'd try to summarize it for lurkers ( hostile and friendly ) and the site.

What did Amiga request from the injunction?

1. That Hyperion could not use any of the Amiga trademarks or any software that has an Amiga logo or trademark on it. ( This would include BTW anything that said "For Amiga"... )

2. That Hyperion be prevented from blocking Amiga Inc access to the source code of AmigaOS4.0.

3. That Hyperion be barred from selling AmigaOS4 AT ALL.

4. That Hyperion MUST deliver within 10 days all of AmigaOS4.0 - that is EVERY COPY of the source code, binaries and intellectual property to Amiga Inc.

5. That Hyperion notify the court within 20 days of the injunction that this has been done.

The cost of not complying with this is more than the 10,000 dollar bond that Amiga Inc were requiring, it is to risk being in contempt and facing serious damages and prejudicing the case. So Hyperion stood to lose everything.

Let us not kid ourselves, the preliminary injunction was deliberately crafted for points 4 and 5, a hook that forced Hyperion into an unreasonable and prejudiced position.

What grounds was the injunction denied on?

He talked about probable success. This means that is Amiga Inc likely to win on the following prerequisite points required for them to win overall. The judgement is that at this time, no, they aren't:

1. The judge said that he could deny it solely on the basis that Amiga Inc Delaware could not be seen as the successor to Amiga Inc Washington from the evidence as presented when it came to the titles of the contract. ( note: this isn't the same as saying that Amiga Inc hasn't bought rights to the Amiga name, but that the clause in the contract means that rights are granted to Eyetech and Hyperion to do pretty much what they want. )

2. The insolvency term itself would have to be tested in court as it is critical to the decision of either party.

3. That Amiga Inc cannot demonstrated it bought in ( note not bought back if you read the contract with a critical eye and not a gleeful one you would have not leapt to the conclusion that it was a buyback clause ) to the contract successfully, this will need to be tested in court.

Also he brought up issues about the reliability of Amiga Inc's evidence due to contradictory dates, and the fact that the Annex 2 with Hyperion's evidence was not initialled.

What can Hyperion do now?

There is a lot of claims that Hyperion are in the same position as they were before. Not true. It has been clarified by the court that they have freedom of action until the court dispute is resolved. At no point did the court say "no harm, no fault". So lets reverse the injunction phrases to see what Hyperion can do now.

1. Hyperion can use the Amiga trademarks and logos for the time being.

2. Hyperion can block Amiga Inc access to the source code.

3. Hyperion can sell AmigaOS4 as a standalone product, or with another board etc.


(4) and (5) are not reversible clauses so I leave those out.

So while some are claiming that Hyperion can now still only sell AmigaOne based OS4, this is not true.

The contract limitations due to the Judges own ruling is in doubt and he does not think that Amiga Inc will probably succeed based on the evidence before the court.

My "spin" on it

I doubt Amiga Inc have irrefutable evidence - at least they would need to "recreate" it now ( remember the post dated documents the judge picked up on, thats the basis for my comment that they might even consider it ).

So I don't think Amiga Inc are cocksure now, the only thing they will do is try to drive Hyperion into bankruptcy through legal fees and seize their side of the contract as a creditor.

If you don't want that to happen, you need to support the AmigaOS4 project with Hyperion financially.

So I say that whatever Hyperion release now, those that want to see a judgement based on the merits of a case should help Hyperion. If Hyperion lose, then the court, as said in the ruling, will compensate Amiga Inc. If Hyperion release OS4 on SAM or ACUBE or whatever, then this is what we want, and we have a chance to get hold of the darn thing. If the court case goes against them do you think that AmigaOS4.0 will do anything other than become very extinct very quickly?

1. There is no need for a HypeOS or Hyperion OS.

2. Amiga Inc HAVEN'T lost the rights to use the brand Amiga, but if the insolvency clause is shown to be invoked then Hyperion can use the brand Amiga freely.

3. Hyperion is NOT limited to selling AmigaOS4 bundled with AmigaONE unless they VOLUNTARILY stay within the terms of the original contract to show GOOD FAITH.

Amiga Inc can't stop them. Hyperion's strategy now might be "no fault, no foul", that is it won't have to pay damages even if the ruling is partly in Amiga Inc.'s favor. Or it might be more brinksmanship. Amiga Inc. have been allowed to block AmigaOS4 now for 3 years, don't you think it is time to put a stop to this attitude?



( spell checked and identified what was purely my opinion )

@Mitch

Thank you Mitch, that was very much put to layman's level, I fully understand the issues as you have explained them.

Cheers

Hi All,

Just like I said, it looked bleak for Hyperion Entertainment at first, but as I pointed out at the end of the hearing, it seemed that Hyperion's lawyer knew what he was talking about.

The judge gave no hint at the end which way it could go (as he himself didn't know, and is _as it should be_), BUT, saying that they should consider negotiating a settlement out of court _certainly_ doesn't bode well for a plaintiff, I would believe!


Now, congratulations Hyperion Entertainment!!!!, and I hope that this allows you to VERY SOON release SAM440* with AOS4.0 AND _very soon_ a 4.1 or 4.2 upgrade!!!!!!!


And YES, as Mitch says, if you support Hyperion Entertainment**, GET AOS4.0 on SAM440 as soon as you are able to!



* How about that CSPPC version?

* A most excellent first release!! Thank you SO MUCH for those draggable screens!



P.S. I hope there's some way to get a PA Semi board out there, and/or PS3 compile. (Not sure how you're going to sell that without the help of Sony, and $10-15 per unit is NOT really compensation.) Also, don't worry about multi-user (I don't want that, let's see the OS stay "simple"), there are way more important things that need to be coded. People can carry enough data on a 2 Gig. CF/SD card or CD/DVD-RW to handle things like that.

@Mitch
Cool, that Hyperion can go ahead with OS4 hadn't occured to me :)))))))))))

But what does this mean to Amiga Inc's plans (if they are true) to bring out OS4 on ACK's hardware?...

@ChrisH

Quote:

How do you mean, "go ahead"? They can keep coding for OS4, yes, but do you think they will soon release it for SAM?
Will they even risk to release the CyberstormPPC version?
Some months ago, there was a lot of talk about it. ACube and Rogue talked about the packaging of the Classic version and about the release of OS4 final for AmigaOne owners.

But time passed, the lawsuit came and we haven't heard anything about it anymore.
If it's really on-hold because of the lawsuit, then we can't expect anything this year anymore.

Quote:

After all that has happened, I seriously doubt that will ever happen. If there is any truth in the ACK announcements, then they don't even require ACube anymore. But I don't belive any of Amiga Incs plans will ever come to fruition.

@Mitch

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that isnt what he said. there is no clear case for them to win, and to always err on the side of caution, of the status quo, which he has done. that is different than saying they will lose.

Quote:

Hyperion have always been able to do whatever they wanted. all thats happened is that they have not been told to stop *now*. The court case is ongoing, and if amiga.inc win, then they will claim damages if hyperion sell anything, especially to what they were never entitled with in the original contract.

Realise that these are companies, and what you are promoting is the same as when certain community members promoted AmigaDE + games + SDKs. look at the laughing stock that became.

@derfs

Quote:

I don't understand what you are saying here.

@derfs

Quote:

Page 5:

ANALYSIS

The traditional criteria for granting a preliminary injunction are: (1) a strong likelihood of success
on the merits; (2) the possibility of irreparable injury to the plaintiff if injunctive relief is not granted; (3) a
balance of hardships favoring the plaintiff: and (4) advancement of the public interest.

Page 7:

In the absence of proof of Amiga Delaware?s status as lawful successor in interest to the rights set
forth in the Agreement, and of Hyperion?s and Eyetech?s written acceptance thereof in compliance with ?
7.12 of the Agreement, it cannot be said that plaintiff has demonstrated a strong likelihood of success on
the merits. The motion for a preliminary injunction may be denied on this basis alone.

Theres more, do you want me to post it?


Quote:
Not from a legal perspective. Hyperion, assuming the contract is valid in full faith and without providing notice required that it had been breached they were only licensed to ship for the target hardware. It is in the contract.

This is the bear trap Amiga Inc laid for them, intentionally or not. As soon as Hyperion runs out of patience and announces a partnership with ACUBE Amiga Inc pulls the contract citing clauses on specifically this issue. It is all there on Justia.com.


Quote:
Assuming the contract is fully in force, and assuming that the judge rules all clauses were in force and were not diluted in the slightest then YES if Hyperion sell anything now ( up to now, they haven't - as we know! ). That is precisely what I point out in that paragraph, Hyperion could now go ahead and do these things with at least some confidence that Amiga Inc is going to lose unless it ups the quality of its evidence.


Quote:
That paragraph made no sense to me whatsoever. Could you explain?

Any Amiga I buy from this point forward will have been built by or under non-court-compelled-or-decided license from Amiga, Inc.?not some fly-by-night IP thief. I refuse to support shenanigans designed to wrest IP away from its rightful owners?no matter what some court might say. Hyperion could have had OS4 FINISHED AND COMPLETE years ago, but they kept on adding and adding and adding stuff that was not supposed to be in 4.0. When they were doing it and announced what they were doing we were all uninformed happy-happy-joy-joy sycophants cheering them on. No more. The shrouds have been pulled back and under the light of day their deeds look and smell rather noisome and I, for one, will not support them.

@Billsey

"Rightful owner" has nothing to do with the matter at hand. It is what is in the contract that matters.

As for fly by night, well thats amusing since Hyperion has outlived and outlasted two incarnations of Amiga Inc now ;)

As for IP thief, you wan't to be careful how you put that, seems very close to being libellous to me.

Finally, your buying decisions are your own. But this is the first time I have seen a company attacked for improving a product beyond the expectations on a contract.

Mitch.

@Mitch

I share your sentiment Mitch.

@Mitch

Quote:

as i said 'no clear case for them to win'. doesnt mean they cant win, or will lose (which is what you incinuated)

Quote:

i agreed with you, and now you disagree with your own point? its because they can do what they want that they are being taken to court.

@Mitch

one mans 'extra development' is another mans 'delayed product'