> I wonder what part of "a perpetual license to develop and market
> AmigaOS 4" they find unclear.

The first controversial wording, relating to object code and source code use, is this (emphasis mine):

"the Amiga Parties hereby grant Hyperion [...] an exclusive, perpetual, worldwide and royalty-free, transferable right and Object Code and Source Code license to the Software in order to use, develop, modify, commercialize, distribute and market the Software in any form (including through sublicensing), on any medium [...], through any means (including but not limited to making AmigaOS 4 available to the public via the internet) and for any current or future hardware platform."

...with "the Software" meaning Commodore's AmigaOS 3.1 in *both* occurences, of course. One might suspect that the second occurence was actually meant to say "AmigaOS 4" instead of "the Software" (as it does in Hyperion's subsequent press release). But that's not what it says in the settlement agreement. And even if it did, see below.

The second controversial wording, relating to your quote about trademark use, is this (emphasis mine):

""AmigaOS 4" means the Operating System developed by Hyperion and based in part on the Software, including without limitation the Software Architecture of the Software as described in the Documentation, in any version (irrespective of version numbering, e.g., AmigaOS 5)."

Hyperion claim that this definition of "AmigaOS 4" also applies to what they released as AmigaOS 3.1.4.

"the Amiga Parties hereby grant Hyperion [...] an exclusive, perpetual, worldwide and royalty-free, transferable right and Object Code and Source Code license to the Software in order to use, develop, modify, commercialize, distribute and market the Software in any form (including through sublicensing), on any medium [...], through any means (including but not limited to making AmigaOS 4 available...

Note underlined portions.
This would seem to validate the creation of OS3.1.4.

Hyperion has the sole right/license to develop from AmigaOS source code.
That may very well be limited to OS3.1, but outside of compatibility for software that will not run under 3.1, does that really matter?

Again, the only flaw I see is their distribution of 1.3, and even that is a minor transgression.

Mike on the other hand has tried to obtain complete ownership rights to intellectual properties that were already under license.

This lawsuit could really backfire on Cloanto.

Even McEwen's ownership of AmigaOS was in question before the Hyperion/Amiga Inc. settlement, but once that took place it was recognized that Amiga Inc. was the property owner, and Hyperion was granted the SOLE license to develop from the property.

Cloanto, another former licensee, in purchasing these assets after said license was granted is still under obligation to honor the terms of the prior settlement.

[ Edited by Jim 10.04.2019 - 12:15 ]

Quote:

Unfortunately McBill wasn't the worst player in the space, that would be Hermans. Until Hermans is gone, there cannot be any sort of peace. Problem is, Hermans would not leave the space without creating a scorched earth trail behind him.

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Yeah, I've exchanged messages with Hermans. He can be charming when he chooses to, but he isn't consistent in his statements.
Funny, after my previous statement about my own inclusion of qualifiers, you'd think Hermns, as a lawyer, would use more himself.

The thing is, Cloanto won't secure OS4 via this lawsuit, and Hermans won't sell the IP without an exorbitant payment.

So OS4 stagnates, and we see most OS4 development occuring outside of Hyperion (i.e.- Aeon's packages, Bigfoot's network driver, etc.).

If a real savior/investor could be found for this platform, I'd support the re-integration of all NG OS' into a real Amiga OS5.

Again, a pipe dream. But...a new Power9 based Amiga, with SMP, memory protection, and other modern features? That could pull us out of the hobbyist realm.

Sorry, it's as clear as day from the wording that "the Software" and "AmigaOS 4" are two different things. If they weren't, there would be no need to keep reverting between one and the other, and simply call "AmigaOS 4" the software consistently and definite it clearly in the index.

As for claiming 3.1.4 wouldn't fall under AmigaOS 4 because it has some "backported" code - it's like putting your own sprinkles on someone's cake in the workplace fridge and claiming it was yours. Not gonna wash.

> it's as clear as day from the wording that "the Software"
> and "AmigaOS 4" are two different things.

Yes, as acknowledged by Hyperion, "the Software" means Commodore's AmigaOS 3.1, whereas "AmigaOS 4" is, according to Hyperion, defined as anything Hyperion develops using "the Software" as base.

> If they weren't [...]

Nobody says they aren't.

> As for claiming 3.1.4 wouldn't fall under AmigaOS 4

At least Hyperion doesn't claim such, quite to the contrary.

> because it has some "backported" code

I don't think it's about this. It's more about the power of definition, i.e. defining terms consistently within a certain framework (like the settlement agreement) when the definiendum has a different widely accepted definiens outside this framework. To understand this concept, it could help to re-read the settlement agreement after replacing the definiendum "AmigaOS 4" by a random character string while keeping the definiens :-)

The settlement was created to allow both companies to do business. Hyperion could keep making AmigaOS 4 without Amiga Inc's interference, but in return Hyperion would not get rights to what they consistently had not paid for, i.e. classic AmigaOS, Amiga hardware exclusivity. They developed OS4 themselves. Other versions of AmigaOS simply do not belong to them. They did not pay for them in any way.

This was the understanding of all parties at the time, including the judge. Hyperion's trying to unravel it in their favour by using uncertain wording, just because AmigaOS 4 flatlined while classic blossomed again, is sure to seen with the dimmest of dim views by the court.

[ Edited by KennyR 10.04.2019 - 18:31 ]

> The settlement was created to allow both companies to do business.
> Hyperion could keep making AmigaOS 4 without Amiga Inc's interference,
> but in return Hyperion would not get rights to what they consistently had
> not paid for, i.e. classic AmigaOS, Amiga hardware exclusivity. [...] This
> was the understanding of all parties at the time, including the judge.
> Hyperion's trying to unravel it in their favour by using uncertain wording [...]
> is sure to seen with the dimmest of dim views by the court.

Yes, the final verdict, if any, will be a choice between favouring the wording of the agreement or favouring its perceived "spirit", that much is clear, and Cloanto and the Amiga parties are quite aware of this (hence their request to void the settlement agreement if the wording is found to be against the "spirit").

> They developed OS4 themselves. Other versions of AmigaOS simply do not belong to them.

On the base of Olsen's AmigaOS 3.1 branch (which in turn is based on Commodore's AmigaOS 3.1), Hyperion developed OS4 as much as what they sell as AmigaOS 3.1.4. I don't see the difference in this regard.

And these points of view are exactly why this has gone to court once again. (Well that and the fact that the companies in question are basically douchebags to each other...

As usual a sad state of affairs in the Amiga World. So par for the course..

Quote:

This is the part of the whole court action that I find most interesting. What will happen if Cloanto is successful in getting the "settlement agreement" voided?

I'm guessing that Hyperion will lose everything that they covet so badly. I also think that such an outcome would be the best for all Amiga users, and a chance for a fresh start, with new thinking behind the helm, so to speak.

Edit: I also think it will be "Justice, or Karma", considering how Ben Hermans acquired AmigaOS4 and the rights to develop it, but maybe I'm just getting sentimental in my old age.

[ Edited by amigadave 10.04.2019 - 12:53 ]

Quote:

You disagree with HYPErion MP (at that time) then?

>> On the base of Olsen's AmigaOS 3.1 branch (which in turn is based on
>> Commodore's AmigaOS 3.1), Hyperion developed OS4 as much as what
>> they sell as AmigaOS 3.1.4. I don't see the difference in this regard.

> You disagree with HYPErion MP (at that time) then?

How does "HYPErion MP" disagree with what you quoted from me above?

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Well, I don't know. Most of the companies involved have gone to great lengths to avoid lawsuits causing damage to each other.

What A-Eon has (allegedly) let Hyperion away with would chill your blood. But Trevor doesn't want to kill them. He could, if he simply told the Belgian authorities he wanted to call in his debt - instant bankruptcy. But he doesn't.

And then there's Cloanto, who are somehow being projected as the villain of this piece. They did not sue when Hyperion sold rights Cloanto owned to Manomio, which subsequently was responsible for the loss of that company. They threatened, they complained, but they didn't sue.

Even Amiga Inc/Amino, long everyone's least favourite money laundering outfit, have finally sold off the Amiga IP - at least in theory. And not even for the ridiculous sums they demanded earlier on, one would assume.

Hyperion being the obvious exception in this. They've pretty much done bad things to everyone.

Quote:

No, "the software" referenced is OS3.1. That is clear if you read the part I quoted. And it further states that they are not limited in using the source code and can produce other products, resell it, or sub-license it.
OS4 is mentioned in the settlement, but then so is the non-existant OS5.
The right to develop from 3.1 does not appear to be restricted as you seem to believe.
Its not limited to a soecific revision number, or a specific ISA.
It appears, from my reading of the entire document, that Hyperion is the sole licensee allowed to develop AmigaOS, at least from 3.1 and its source code.

Many of you might not like that, but the wording seems fairly clear.

Quote:

AmigaOS 3.1 or any other version of AmigaOS (except 4) is not mentioned in the whole settlement. That would be clear.

It is not, and so in no way clear.

Edit: And remember the issues preceding the case - it was AmigaOS 4 that Amiga Inc claimed to have paid Hyperion for but not received, and AmigaOS 4 Classic (which Amiga Inc said was illegal), both of which precipitated the lawsuit in the first place.

[ Edited by KennyR 12.04.2019 - 19:31 ]

> AmigaOS 3.1 or any other version of AmigaOS (except 4) is not mentioned in the whole settlement.

AmigaOS 3.1 is mentioned 3 times in the settlement agreement:

#1: ""Software" means Amiga OS 3.1, which is the Operating System (including without limitation its Software Architecture as described in the Documentation) originally developed, owned and marketed by Commodore Business Machines (CBM) for their Amiga line of computers in 1994."

#2: "Right to develop and distribute Amiga OS 3.9 upgrade of Amiga OS 3.5 (itself an upgrade of OS 3.1). Amiga considers this agreement terminated, but Haage & Partner may not."

(This even has a mention of AmigaOS 3.5 and 3.9.)

#3: "ITEC LLC assigns its full interest under the identified financing statement to the software known as Amiga OS 3.1, which is the Operating System (including without limitation its Software Architecture as described in the Documentation) originally developed, owned and marketed by Commodore Business Machines (CBM) for their Amiga line of computers in 1994."

See comment #811 for a quote of the mention of "AmigaOS 5".

> AmigaOS 4 Classic [...] precipitated the lawsuit

AmigaOS 4.0 Classic was released 7 months after the begin of the lawsuit.

Quote:


The Classic version would have also been within the remit of the 2001 contract and I think the non-delivery of it may have even formed part of Amiga Inc's complaint or amended complaint. I remember that when OS4 Classic was released or was close to release, Ben H, I think, said that it had received a priority bump. There was certainly speculation at the time that it only got released to show that they were meeting one of their contractual obligations.

I think what really irked Bill M was that a third part had initiated and was funding a port to Mac Mini with no prior discussion and agreement between between Hyperion and Amiga Inc. Maybe that's what Kenny was thinking of. All our memories get a bit hazy 10+ years after the fact.

Quote:

You have a good memory. You are correct on both accounts. One slight correction...

it was HJF who made the statement
The document detailing the conversation between Nicola Morocutti (for Acube) and Bill is part of the Amiga Documents documentation section.
Source

#6

Quote:

Good quote Andreas,
I was fairly sure that that was the the definition of "the software".

> The Classic version would have also been within the remit of the 2001
> contract and I think the non-delivery of it may have even formed part
> of Amiga Inc's complaint or amended complaint. [...] There was certainly
> speculation at the time that it only got released to show that they were
> meeting one of their contractual obligations.

Thanks for your input. I didn't object to this particular statement of KennyR ("AmigaOS 4 Classic (which Amiga Inc said was illegal)") because I took it to refer to the fact that AmigaOS 4.0 Classic was released after Amiga Inc. had terminated Hyperion's license in December 2006, so it'd make sense that Amiga Inc. deemed every OS4 release since then illegal. After this termination, it took Amiga Inc. 4 months to start the actual lawsuit.

Addendum:

>> Trevor probably has no financial stake in any Hyperion shares

> This is what Trevor wrote in August 2017: [...]
> Whether or not Trevor attending a Hyperion shareholder meeting in June 2017
> would indicate him being a Hyperion shareholder in 2017 I don't know.

"Although I am a very minor shareholder, I can't talk for Hyperion Entertainment [...]. [...] I am a small shareholder in Hyperion"
https://www.exec.pl/article.jsp?nid=189&Amiga_present_and_future:_interview_with_Trevor_Dickinson

@thread

ORDER denying Plaintiffs'67 Motion for Partial Reconsideration.

Basically C-A Acquisitions Corporation still refused to be enjoined as party to the lawsuit.
Plus some mentions about delays in scheduling.

Quote:
Also interesting to note this comment which obviously refers to the Kouri estate:
Quote:
And this acknowledgement about Amiga websites:
Quote:
#6

@thread

Way back in March before Stephen had his accident (slipped disk) and shortly thereafter getting a bad case of the flu, an interview with Cloanto was mentioned. This is now available.

Mike Battilana Interview 2019

Conveniently listed are all the questions and a time stamp, in case you wish to limit your listening.
Otherwise, in full, the interview runs over 2 hours.

#6

-deleted-
Somehow missed the post right above this.

[ Edited by redrumloa 02.05.2019 - 20:00 ]

I've been through parts of the MikeB interview several times now and I'm afraid I've got nothing beyond what we already know.