Quote:

If you are referring to the Paul C. Clements testimony about "the Agreement's" use of the term "Software Architecture" (found in the stipulated judgement under "Definition o.") in order to specify exactly what copyrighted materials is being granted for Hyperion to use for development and put to market (in "Definition n. 'Software'", "Definition d. "AmigaOS 4", "Grant (b)", and various pages of "EXHIBIT A") then you might be out of arguments.

Nowhere in the settlement agreement is there a list or in any other way a specification of exactly what copyrighted materials are being granted for Hyperion to use under the license. For example, browse the USPTO for Amiga copyrights, and you will see a comprehensive (yet not complete, which it does not have to be in USPTO contexts) list of various copyrighted parts of Amiga OS, all copyrights now owned by Cloanto. This resembles what a proper license should have looked like (but a license would of course need to be exact and cover 100% of the licensed objects), but "the Settlement Agreement" lists no Source Code, no Object Code, and no other files in any shape or form. It's like granting a license to "meatballs" without covering a specified list of ingredients. Instead the settlement agreement relies *solely* on Amiga "Software Architecture" in the definitions of "the Software" etc ("including without limitation its Software Architecture as described in the Documentation"), and most notably in the "Grant (b)" for the "[...] Object Code and Source Code license to the Software".

And this is what makes the settlement worthless for Hyperion, as testified by Paul C. Clements.

Version numbers isn't the main thing here. The most significant way in which Paul C. Clements use version numbers in his testimony, is when he establish the fact that "The Documentation", which consist of the list of five books in Exhibit 4 of "The Agreement" (like the RKRM's), only covers versions up to 2.04 and not 3.1. Not that it matters, since "only a minimal amount of information about the software architecture of the Amiga operating systems up to version 2.04 can be gleaned from the Documentation". So almost nothing about 2.04 and *NOTHING* about 3.1. Again: "The Documentation" does not at all document a full "Software Architecture" of *any* version of the OS, not 1.3, not 2.04, not 3.1.

Regarding specifically what you claimed in your post, about "rights to previous versions", (which, again, is *not* the key point in his document), Paul C. Clements writes: "If a party were to believe that the term 'Software', because its definition says 'including without limitation its Software Architecture as described in the Documentation', gave that party the right to source code from an earlier version of that program or any other program, that party would be categorically mistaken. This would be as absurd as a person commissioning an architect to design a house, then commissioning builders to build the house, then conveying rights to the architecture to a second person, with the result that the second person asserts ownership of the first person’s house. Just as the architecture of the house is not the house itself, so 'Software Architecture' is not the software in which it is instantiated."

But the main point is obviously not about version numbers at all, but: "'Software Architecture' exists apart from, and does not include, object code or source code, and there is no such thing as an 'Object Code and Source Code license' to a software architecture", "The Documentation does not contain any source code of any Amiga operating system (3.1 or prior)", and "While there is obviously such a thing as an 'Object Code and Source Code license' to an operating system, there is no such thing as an 'Object Code and Source Code license' to a Software Architecture, since Software Architecture contains neither object code nor source code. The very concept is nonsensical because a program's software architecture is not its instantiation, but an abstraction that exists independent of any instantiation."

Hyperion may have thought about apples, but what they wrote in the contract was about oranges. And they even misunderstood that orange part, since they managed to describe it erroneously. But that's their problem, it's all on them.

To summarize:

"The Settlement Agreement" does not specify exactly what copyrighted 3.1 materials are to be licensed to Hyperion (no list of specific files, no specific sources) but relies entirely on the Documentation about the Amiga System Architecture for the description of this. Problem for Hyperion is that this documentation does not cover 3.1, in fact it doesn't describe the System Architecture of *any* version, it does not provide the source code of *any* OS version, and more important, it *DOES NOT* describe the Amiga System Architecture, and even if it did, Software Architecture contains neither Source Code nor Object Code.

And this is actually the whole foundation the entire agreement relies on.

Hmm, since there is no list specifying what files, objects and other materials that the license should cover, maybe Amiga/Cloanto should provide to the court a list of files that specifically *were not* covered by the license?