Cloanto sues Hyperion
  • rob
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    rob
    Posts: 97 from 2008/7/22
    Quote:

    Andreas_Wolf wrote:
    > Cloanto are claiming that Hyperion committed a material breach of the
    > 2009 settlement agreement with the inclusion of the 1.3 because it
    > displays the word Amiga, which Hyperion do not have permission to use.

    That's just the trademark part of the argument.


    I realise that it's just part of the complaint. It does stick out because they are discussing a breach of the settlement agreement they were not party to. There obviously a reason they added it to there complaint but why and what do they expect to gain? I don't know if this has legs but it is the one part of the complaint that has the potential for wider consequences than just Hyperion having to pay damages to Cloanto.
  • »30.12.17 - 19:50
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  • rob
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    rob
    Posts: 97 from 2008/7/22
    Quote:

    amigadave wrote:
    All my friends who are primarily AmigaOS4.x users, and secondarily AmigaOS3.x, and/or MorphOS, and/or AROS, users, who I usually see each year at the AmiWest Shows, will probably dislike this comment, but . . . .

    I hope that Hyperion (Ben Hermans specifically), get slapped really good by Colanto, and Ben Hermans, or Hyperion are forced to pay Colanto tons of penalties and legal fees. It would not bother me much if Hyperion got hit so hard that they lose everything to do with "Amiga", including AmigaOS4.x, and they are forced to close down Hyperion Entertainment permanently, similar to how Hyperion put Amiga Inc. out of business (effectively, since taking AmigaOS4.x away from them pretty much killed any hope Bill McEwen had of saving that company).


    LOL. Bill and Fleecy sent Amiga Inc on downward spiral all on their own. Amiga Inc only started to care about Amiga OS4 when it became clear that it was the only bit of I.P. left that might have some kind of monetary value. It was obvious pretty early on the Amiga Inc didn't care about the OS and they were all about following Fleecy's vision. It may be worth your time reading Bolten Peck's story. It gives insight into how Amiga Inc and how they really viewed things.

    Quote:

    The arrogance of Hyperion is quite sickening, and the vindictive and abusive behavior toward Colanto has lowered my opinion of Hyperion even further, which amazes me, since I didn't think my opinion of them (him) could be any worse.


    I don't think either company is some kind of white knight in the episode, tempting as to may be to absolve Cloanto of any wrong doing simply due to a despisal of Ben Hermans. Taking the Amiga brand by stealth is pretty shady and (maybe I've missed something)it's not exactly clear how Cloanto ended up with everything else.

    Quote:

    The sad thing is, I would not put it past "him", to vindictively lock up and through away, everything Hyperion owns, with regards to AmigaOS4.x, rather than sell, or give (open source) it to anyone in the community, just out of spite, should Hyperion close its doors, and shut down.


    Hyperion don't have the right to open source the OS. It explicitly stated they don't in the settlement agreement. The rest I don't know. I couldn't make a prediction on what he'd likely do since I've obviously had far fewer personal interactions with him than you.


    Quote:

    Edit: Thinking about the above further, maybe it wouldn't be such a bad thing if AmigaOS4.x and Hyperion were to cease to exist. A-Eon would then be forced into supporting an alternative OS, like MorphOS, and if A-Eon had supported MorphOS with the same amount of enthusiasm and monetary investment, who knows where it would be today?


    Most of OS4 is independent works. They'd probably cut deals with the various developers and replace the parts they can't get to keep the OS on the market but we are moving into the realm of fantasy here since nobody knows how this will play out.

    [ Edited by rob 30.12.2017 - 20:28 ]
  • »30.12.17 - 20:26
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  • Yokemate of Keyboards
    Yokemate of Keyboards
    Andreas_Wolf
    Posts: 10062 from 2003/5/22
    From: Germany
    >> That's just the trademark part of the argument.

    > It does stick out because they are discussing a breach of the settlement agreement
    > they were not party to.

    They are also discussing a breach of the settlement agreement in the copyright part of the complaint:

    "16. The Settlement Agreement did not grant to Defendant any right in any AMIGA software created or distributed prior to 1994.
    [...]
    24. Upon information and belief, section 2 of the Settlement Agreement did not intend to expand the grant of rights to Defendant by allowing Defendant to market, license or sublicense Amiga OS 3.1. [...]
    [...]
    30. Defendant’s copying, distribution and sale of Plaintiff’s Kickstart 1.3 also constitutes a breach by Defendant of the Settlement Agreement.
    "
  • »30.12.17 - 20:47
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  • rob
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    rob
    Posts: 97 from 2008/7/22
    Quote:

    Andreas_Wolf wrote:
    >> That's just the trademark part of the argument.

    > It does stick out because they are discussing a breach of the settlement agreement
    > they were not party to.

    They are also discussing a breach of the settlement agreement in the copyright part of the complaint:

    "16. The Settlement Agreement did not grant to Defendant any right in any AMIGA software created or distributed prior to 1994.
    [...]
    24. Upon information and belief, section 2 of the Settlement Agreement did not intend to expand the grant of rights to Defendant by allowing Defendant to market, license or sublicense Amiga OS 3.1. [...]
    [...]
    30. Defendant’s copying, distribution and sale of Plaintiff’s Kickstart 1.3 also constitutes a breach by Defendant of the Settlement Agreement.
    "


    The question is what bearing does this have on the main argument. Did Cloanto add it to proceedings simply to strengthen their argument or is the intention to strip Hyperion of all rights granted to them in the 2009 settlement. I thought that the Amiga parties with have to get a court to rule on this but having read the termination clause again, it doesn't specify who has to obtain a ruling of a material breach.

    Are Cloanto actually going after financial compensation or is the real goal to get OS development rights and associated branding? As far as I can tell, they are the only things left on the list for Cloanto and I doubt Hyperion has any actual money they can hand over in the event of an outcome favourable for Cloanto.

    This is all speculation and we don't know where this will actually go. People thought the case between Amiga Inc and Hyperion was pretty much cut and dry. I wouldn't rule out the possibility of another settlement that maintains the status quo. It may even be remotely possible that Cloanto have just shot themselves in the foot.

    One thing that is certain is that the lawyers will get richer and there'll be plenty of fat for us to chew in the coming months, possibly years.
  • »30.12.17 - 22:15
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  • Yokemate of Keyboards
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    Andreas_Wolf
    Posts: 10062 from 2003/5/22
    From: Germany
    > he did change his nick on AW from hyperionmp to hyperionholding in June,
    > which did give a rather odd impression of intent to some.

    As he stopped being a company director in January I'd consider this step reasonable and overdue (he made 6 posts with the old nick after the fact). The Managing Partner title was a relict of the old Hyperion VOF days anyway. Admittedly, he simply could have got his account renamed instead of creating a new one. As was revealed by Evert Carton, Ben Hermans was the only one using the Hyperionmp account anyway and also kept posting under this account during his alleged hiatus between 2003 and 2009 when Evert Carton was the sole Hyperion VOF Managing Partner.
  • »30.12.17 - 22:47
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  • Yokemate of Keyboards
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    Andreas_Wolf
    Posts: 10062 from 2003/5/22
    From: Germany
    > is the intention to strip Hyperion of all rights granted to them in the 2009 settlement.

    Cloanto doesn't seem to have an issue with Hyperion using the "AmigaOS" and "AmigaOne" trademarks in connection with OS4, as long as Hyperion don't try to register them as distinct trademarks. And although Cloanto claims that what Hyperion has been doing with AmigaOS 3.1 isn't within the boundaries imposed by the settlement agreement, they appear not to really take issue with this (see the "prayer for relief" part of the complaint).

    > People thought the case between Amiga Inc and Hyperion was pretty much cut and dry.

    As I remember it, the (wording of the) settlement agreement left room for various interpretations :-)
  • »30.12.17 - 23:17
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  • Yokemate of Keyboards
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    takemehomegrandma
    Posts: 2531 from 2003/2/24
    Quote:

    Andreas_Wolf wrote:

    As he stopped being a company director in January


    He does that from time to time, but he never really disappear. He has definitely been ”directing” Hyperion’s war effort in the trademark area for the entire 2017. The formal job title ”director” on papers and public records is one thing, but the job description in practice is a bit more ambiguous in Hermans/Hyperions case.


    Quote:

    Andreas_Wolf wrote:

    Cloanto doesn't seem to have an issue with Hyperion using the "AmigaOS" and "AmigaOne" trademarks in connection with OS4, as long as Hyperion don't try to register them as distinct trademarks.


    I think they definitely do. The point of this whole case is about removing Hyperion’s opposition to Cloanto’s ”Amiga” trademark registration, that’s the end-goal. ”Amiga One” and ”Amiga OS” infringes on Cloanto’s Amiga mark, thus it needs to be dealt with, if not it will in time de-facto become Hyperion trademarks (registered or not). I think Cloanto will be more than willing to let Hyperion use marks containing ”Amiga” later on, after everything is settled, provided that the ownership situation is crystal clear in favor to Cloanto, undisputable.
    MorphOS is Amiga done right! :-)
    MorphOS NG will be AROS done right! :-)
  • »31.12.17 - 01:49
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  • Yokemate of Keyboards
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    takemehomegrandma
    Posts: 2531 from 2003/2/24
    Quote:

    rob wrote:

    I don't think either company is some kind of white knight in the episode, tempting as to may be to absolve Cloanto of any wrong doing simply due to a despisal of Ben Hermans. Taking the Amiga brand by stealth is pretty shady


    The trademark was set free, and Cloanto filed a registration for it. No reason to picture it as a ”shady stealth operation”, it was formally correct and happened right in the open. Besides, they are the owner of Amiga and the other Commodore copyrights, so it’s their moral right to own the trademark as well. They are the oldest Amiga company around, almost as old as Commodore Amiga itself. And they are doing great things. Couldn’t think of any more suitable, rightful owner of the brand.


    Quote:

    Hyperion don't have the right to open source the OS. It explicitly stated they don't in the settlement agreement.


    The settlement ”agreement” is with a company (Amiga Inc) who no longer owns or controls the Commodore Amiga copyrights that the agreement deals with, which makes ”the settlement” kind of worthless. A more correct description is that Hyperion can’t open source the OS without Cloanto’s permission (OS4, and the entire ”Boing Ball Branch”, builds on Cloanto owned copyrighted source code)


    [
    MorphOS is Amiga done right! :-)
    MorphOS NG will be AROS done right! :-)
  • »31.12.17 - 02:17
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  • Paladin of the Pegasos
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    redrumloa
    Posts: 1267 from 2003/4/13
    Quote:

    number6 wrote:
    Quote:

    Andreas_Wolf wrote:
    > Kickstart-34.4.rom is a 1.3 rom version. Included in AmigOS 4.1 Update 4,
    > released for download 22 December 2011 .

    Thanks. So if we are to follow Cloanto's pattern of argument further than Cloanto does, Hyperion must have been infringing on Cloanto's copyright (supposedly obtained from Amiga Inc. in 2011/2012) since exactly that time.


    Not that it matters, but the cinemaware deal was 2010, including Manomio's negotiations for required IP.

    Manomio CTO Stuart Carnie

    Quote:

    Manomio is legally licensing the required intellectual property

    Source of quote above & vid/demo showing 1.3 image

    I fully understand your putting more weight on the 1.3 ROM discussed above, but I feel it's also fair to ask "who licensed what to Manomio?" back in 2010 as well.

    #6


    Thumbs up.
  • »31.12.17 - 03:18
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  • Paladin of the Pegasos
    Paladin of the Pegasos
    redrumloa
    Posts: 1267 from 2003/4/13
    Quote:

    I don't think either company is some kind of white knight in the episode, tempting as to may be to absolve Cloanto of any wrong doing simply due to a despisal of Ben Hermans. Taking the Amiga brand by stealth is pretty shady and (maybe I've missed something)it's not exactly clear how Cloanto ended up with everything else.


    Not looking to get in any sort of flamewar here, but honestly I do not see a problem with Cloanto. If i were to rank questionable actions in the Amiga market, Cloanto would probably be in the bottom 2. I can only think of one instance that raised an eyebrow.

    I could give zero craps that McBill let the Amiga brand expire and Cloanto picked it up. As a matter of fact, I can think of few other entities I'd rather see hold it.

    [ Edited by redrumloa 30.12.2017 - 22:46 ]
  • »31.12.17 - 03:24
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  • Priest of the Order of the Butterfly
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    stephen_robinson
    Posts: 742 from 2007/4/22

    Hyperion Entertainment confirms exclusive rights to AmigaOS


    http://www.hyperion-entertainment.com/index.php/news/38-corporate/185-hyperion-entertainment-confirms-exclusive-rights-to-amigaos

    :dunno:
  • »31.12.17 - 11:03
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  • Yokemate of Keyboards
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    Andreas_Wolf
    Posts: 10062 from 2003/5/22
    From: Germany
    > He has definitely been ”directing” Hyperion’s war effort in the
    > trademark area for the entire 2017.

    Yes, no surprise there:
    "Ben Hermans [...] will continue representing its legal interests in the best possible way."

    I'd think that "representing legal interests" includes trademark matters.
  • »31.12.17 - 11:18
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    takemehomegrandma
    Posts: 2531 from 2003/2/24
    @stephen_robinson

    Nothing new there. He just continues to bark about his robbed “settlement”. Merely more of the same innuendo. Nothing new.

    Cloanto clearly has the upper hand; they sold Amiga operating systems using Amiga trademark two years before Hyperion even existed as a company, seven years before Hyperion managed to squeeze out their first OS product, and they have never stopped. Everything is easily documented to predate anything Hyperion can come up with, by many years. Since then they have become the *registered owners* of the copyrights to said operating systems (IP which Hyperion’s OS4 uses as a base), and they have also registered the Amiga trademark in US, EU and UK. The only thing remaining is the amiga.com domain (that is currently hanging in the air), which probably will land at Cloanto as well in the end.
    MorphOS is Amiga done right! :-)
    MorphOS NG will be AROS done right! :-)
  • »31.12.17 - 11:54
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  • Yokemate of Keyboards
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    Andreas_Wolf
    Posts: 10062 from 2003/5/22
    From: Germany
    > [...] which makes ”the settlement” kind of worthless.

    Apparently, Cloanto considers the settlement agreement so worthless that they use it to make their points in 19 of the total 72 paragraphs (i.e. more than a fourth) of the complaint ;-)
  • »31.12.17 - 12:01
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  • Paladin of the Pegasos
    Paladin of the Pegasos
    Intuition
    Posts: 1020 from 2013/5/24
    From: Englistan
    Quote:

    stephen_robinson wrote:

    Hyperion Entertainment confirms exclusive rights to AmigaOS


    http://www.hyperion-entertainment.com/index.php/news/38-corporate/185-hyperion-entertainment-confirms-exclusive-rights-to-amigaos

    :dunno:


    Oh watching that tosser Hermans get his comeuppance will be great :)
    1.67GHz 15" PowerBook G4, 1GB RAM, 128MB Radeon 9700M Pro, 64GB SSD, MorphOS 3.9

    2.7GHz DP G5, 4GB RAM, 512MB Radeon X1950 Pro, OSX 10.5.8, 500GB SSHD, MorphOS 3.9
  • »31.12.17 - 12:20
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  • Order of the Butterfly
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    KennyR
    Posts: 433 from 2003/3/4
    From: #AmigaZeux, Gu...
    "Whilst we deeply regret that once again substantial resources will need to be redirected away from development to litigation..."

    LOL

    Essence of Ben Hermans should be bottled and sold as a way to strip bones off corpses. It's certainly done a slap up job of dissolving anything worthwhile from OS4.
  • »31.12.17 - 13:39
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  • Order of the Butterfly
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    KennyR
    Posts: 433 from 2003/3/4
    From: #AmigaZeux, Gu...
    Quote:

    redrumloa wrote:
    Not looking to get in any sort of flamewar here, but honestly I do not see a problem with Cloanto. If i were to rank questionable actions in the Amiga market, Cloanto would probably be in the bottom 2. I can only think of one instance that raised an eyebrow.

    I could give zero craps that McBill let the Amiga brand expire and Cloanto picked it up. As a matter of fact, I can think of few other entities I'd rather see hold it.


    Well, exactly. It's not as if Cloanto has amassed a huge native reputation for aggressiveness and acting in poor faith like Hyperion have. Hyperion's reputation for unnecessary litigation and self-aggrandising nastiness far beyond the needs of a hobbyist scene is unprecedented, and has done enormous damage to the platform as a whole.

    Hyperion - and the centrepoint Ben Hermans - have been in and out of Amiga news since the late 90s. They sued Titan Computer because they didn't think they tried hard enough to market their games, and seem to have fallen out with Haage&Partner for a similar reason. They spent enormous time trying to convince people that Phase5/bPlan were putting logic bombs in their firmware and even longer spreading FUD about the legality of MorphOS... only to never sue it, because they knew it was a lie. They walked into the original agreement with Amiga Inc believing that that AInc would just go bankrupt and they'd walk with the Amiga name, only yo be held onto a settlement because Kouri died, and action that basically killed OS4. They have ex-partners who wouldn't piss on them if they were on fire. And current partners who would seriously consider not pissing on them if they were on fire.

    Hyperion are absolute cancer. If they came out and claimed the world was round, I'd be seriously reconsidering the flat-earther arguments.
  • »31.12.17 - 13:56
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  • Yokemate of Keyboards
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    takemehomegrandma
    Posts: 2531 from 2003/2/24
    @Andreas_Wolf

    I think it’s pretty obvious that Hyperions entire defense will build on that “settlement”, their response and argumentation will be full of references to it. Cloanto’s lawyers are of course aware of this and forestall this in their own initial text.

    But that doesn’t change the fact that the ”settlement” is between Hyperion and Amiga Inc, concerning IP that *none* of these companies own, be it the copyrights or trademarks.

    Cloanto owns it all. Amiga Inc owns nothing. Hyperion could as well have a ”settlement” with *me* regarding MS Windows.
    MorphOS is Amiga done right! :-)
    MorphOS NG will be AROS done right! :-)
  • »31.12.17 - 14:03
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  • Order of the Butterfly
    Order of the Butterfly
    number6
    Posts: 211 from 2008/8/10
    Quote:

    takemehomegrandma wrote:
    @Andreas_Wolf

    I think it’s pretty obvious that Hyperions entire defense will build on that “settlement”, their response and argumentation will be full of references to it.


    Not that it matters, but the wording from Ben has always been that a court (stipulated judgment) holds weight vs the settlement between parties.

    Stated here right after settlement

    slightly different wording in 2010

    #6
  • »31.12.17 - 14:36
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  • Yokemate of Keyboards
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    Andreas_Wolf
    Posts: 10062 from 2003/5/22
    From: Germany
    > Hyperion's reputation for unnecessary litigation [...] is unprecedented

    It was Amiga Inc. who sued Hyperion in April 2007. Hyperion merely countersued in June 2007 (as well as suing Amino in October 2007), before in turn being sued by Itec in July 2007 and even by the Frieden twins in July 2008. And it is Cloanto who is now suing Hyperion.

    > They sued Titan Computer

    Any more examples of Hyperion's "unnecessary litigation"?

    > and seem to have fallen out with Haage&Partner for a similar reason.

    Any details on that?

    > They spent enormous time trying to convince people that [...]
    > bPlan were putting logic bombs in their firmware

    Any details on that?

    > They walked into the original agreement with Amiga Inc believing that
    > that AInc would just go bankrupt and they'd walk with the Amiga name

    I'm not aware that the 2001 agreement would have given ownership of the "Amiga" name to Hyperion in case of Amiga Inc. bankruptcy, just (final) ownership of OS4.


    Edit: corrected date of the Frieden twins et al. v. Hyperion et al. lawsuit
    Edit2: added Hyperion v. Amino lawsuit

    [ Edited by Andreas_Wolf 02.01.2018 - 13:22 ]
  • »31.12.17 - 16:20
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  • Paladin of the Pegasos
    Paladin of the Pegasos
    redrumloa
    Posts: 1267 from 2003/4/13
    Quote:

    People thought the case between Amiga Inc and Hyperion was pretty much cut and dry.


    It would have been cut and dry if Amiga Inc had 2 pennies to rub together and an ounce of measurable ethics.

    What goes around comes around IMO.
  • »31.12.17 - 16:31
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  • Yokemate of Keyboards
    Yokemate of Keyboards
    Andreas_Wolf
    Posts: 10062 from 2003/5/22
    From: Germany
    > the ”settlement” is between Hyperion and Amiga Inc, concerning IP that *none*
    > of these companies own, be it the copyrights or trademarks. Cloanto owns it all.

    The settlement agreement is also concerning OS4, which Cloanto certainly does not own all of.
  • »31.12.17 - 17:54
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  • Order of the Butterfly
    Order of the Butterfly
    KennyR
    Posts: 433 from 2003/3/4
    From: #AmigaZeux, Gu...
    Quote:

    Andreas_Wolf wrote:
    > Hyperion's reputation for unnecessary litigation [...] is unprecedented

    It was Amiga Inc. who sued Hyperion in April 2007. Hyperion merely countersued in June 2007, before in turn being sued by Itec in July 2007 and even by the Frieden twins somewhat later that year. And it is Cloanto who is now suing Hyperion."


    Amiga Inc withdrew the licence in 2006 and asked Hyperion not to publish OS4 for Classic in December. They did, in direct defiance. AInc then sued them.

    Quote:

    > They sued Titan Computer

    Any more examples of Hyperion's "unnecessary litigation"?


    Apart from all the ones you just gave above? Titan, Amiga, Itec, the Friedens, possibly Epic, possibly H&P. Sounds a lot to me. Being litigious isn't just about suing people, it's also about giving people little choice but sue you.

    Quote:

    > and seem to have fallen out with Haage&Partner for a similar reason.

    Any details on that?


    See Steffen Hausser, ANN.lu.

    Quote:

    > They spent enormous time trying to convince people that [...]
    > bPlan were putting logic bombs in their firmware

    Any details on that?


    See ANN.lu, the ShopIP saga. It was common knowledge at the time that Ben was posting on AWN's hidden forums and the OS4 mailing list (AmigaZeux had a few people on it), forging a false narrative that the fanboys could all parrot.

    Quote:

    > They walked into the original agreement with Amiga Inc believing that
    > that AInc would just go bankrupt and they'd walk with the Amiga name

    I'm not aware that the 2001 agreement would have given ownership of the "Amiga" name to Hyperion in case of Amiga Inc. bankruptcy, just (final) ownership of OS4.


    Not ownership - just the ability to use it wherever they liked. Much like A-Eon does now.
  • »31.12.17 - 17:58
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