What's the status of the Cloanto / Hyperion lawsuit?

[Gorf]

Originally Posted by Thomas Richter

Thus, what Cloanto bought wasn't probably not worth much - they cannot do a lot with what they accquired.

Well - that is what the (now still pending) main law suite is about, isn't it?
So this remains to be seen ...

[jbenam]

Originally Posted by Thomas Richter

Things are not quite that simple. They might have paid for something, but the development rights were handed over to Hyperion before, and that agreement continues, regardless of who owns the brand. That's as if you buy an appartment the previous owner has rented out to somebody else. The contract for the rent remains untouched, despite the change of the owner - or at least this is how it works in Germany. You cannot get the renter "out" just by passing the ownership to another party. Thus, if you buy such an appartment, you still cannot move in. You can collect the rent, yes, but that's as far as it goes.

And that is fine and dandy. But what if your renter stops paying the rent? You’re then allowed to throw him out (after VERY long legal proceedings ).

That’s what happened here - Hyperion has times and times again (more info in my previous post) breached the agreement they had with the previous owners.

While it’s true that Cloanto has to upheld that agreement even when becoming the new owner, he can now also sue them for breach of contract in case they don’t respect their part of the deal - and this is what happened here.

[grond]

Originally Posted by Thomas Richter

Things are not quite that simple. They might have paid for something, but the development rights were handed over to Hyperion before, and that agreement continues, regardless of who owns the brand. That's as if you buy an appartment the previous owner has rented out to somebody else. The contract for the rent remains untouched, despite the change of the owner

Yes, but Cloanto's position is that the tenant (Hyperion) breached the tenancy contract and thus the landlord (now Cloanto) is free to terminate the tenancy contract and eject the tenant. And nothing has been decided on this in the current judgement.

[Korodny]

Originally Posted by Thomas Richter

But you did get the point that Cloanto is the plaintiff, right?

Cloanto sued Hyperion after the latter started meddling with Cloanto's trademark rights - by trying to register their own US marks and starting to register regional marks in the EU (to invalidate or at least weaken the existing EU mark). They actually managed to invalidate the EU mark with their meddling. Hyperion also had no business using "AmigaOS" or the BoingBall for 3.x related products - their license explicitly limits the use of the licensed marks to anything related to AmigaOS 4.

In response, Hyperion then sued four companies in total - for no other reason than to make this as complicated and expensive as possible.

But yeah, "Cloanto sued first, they must be the bad guys".

As I said before, maybe Cloanto is the owner, but that doesn't help them as the exclusive development rights have been passed over

The guy who actually signed the settlement agreement for Hyperion - Evert Carton - disagrees with you on this.

They cannot develop

Well, they could do what Ben Hermans did and just lie to their developers.

As said before, if you read carefully what the AmigaOs "About" box says is that it was "developped under license of Hyperion", not that they own it.

Yes, Ben changed it again, after he got a C&D. Here's a screenshot of what it used to say and another one from after the C&D.

"Earned" by exactly what? By bringing this nonsense to court? I do not have a problem with Cloanto selling their AmigaForever, really, but I do not really see anything that "earns" them AmigaOs.

Did you already apologize to Jörg Strohmeyer, for being involved with 3.1.4 which contained his code without a license? Or maybe you could share Ben Hermans' explanation for that mishap with us?

I'm glad that you don't have a problem with this "nonsense", but maybe you should sometimes try out other sources than just Ben?

[OlafSch]

Originally Posted by Thomas Richter

Things are not quite that simple. They might have paid for something, but the development rights were handed over to Hyperion before, and that agreement continues, regardless of who owns the brand. That's as if you buy an appartment the previous owner has rented out to somebody else. The contract for the rent remains untouched, despite the change of the owner - or at least this is how it works in Germany. You cannot get the renter "out" just by passing the ownership to another party. Thus, if you buy such an appartment, you still cannot move in. You can collect the rent, yes, but that's as far as it goes.



Thus, what Cloanto bought wasn't probably not worth much - they cannot do a lot with what they accquired.

nobody doubts that they (Hyperion) had the right to develop and use the sources for 4.X development. The lawsuit is about the question if they can do with whatever they want including developing and selling new versions of amigaos 3.X and sell license for roms. And this is still not finally answered as I understand it.

[Gorf]

Originally Posted by OlafSch

nobody doubts that they (Hyperion) had the right to develop and use the sources for 4.X development. The lawsuit is about the question if they can do with whatever they want including developing and selling new versions of amigaos 3.X and sell license for roms. And this is still not finally answered as I understand it.

AFAIK they pretty much can - at least how I remember the contracts and later agreements ... at least they can develop the OS and they can include OS 3.x in 4.x for compatibility and the rest is pretty much semantics:

Forcing them to only sell it as a bundle would not be effective, since then they simple could sell 3.x together with a minimal (and useless) version of 4.x in digital form...
Making the download 1MB bigger and nothing more

So I guess Mike's Amiga will try to argue Hyperion overstepped the last agreement by claiming copyright and registering trademarks and therefor lost all granted rights completely - the court will then usually tell both parties to work on a new compromise ....

[Thomas Richter]

Originally Posted by Korodny

Cloanto sued Hyperion after the latter started meddling with Cloanto's trademark rights - by trying to register their own US marks and starting to register regional marks in the EU (to invalidate or at least weaken the existing EU mark).

Err. Please be so kind and read the settlement agreement. It gives Hyperion the right to register trademarks.

Originally Posted by Korodny

They actually managed to invalidate the EU mark with their meddling. Hyperion also had no business using "AmigaOS" or the BoingBall for 3.x related products - their license explicitly limits the use of the licensed marks to anything related to AmigaOS 4.

Err. Have you read the settlement agreement? AmigaOs 4 is defined as "The Operating System developed by Hyperion". So, yes, 3.2 is "AmigaOs 4" in the sense of this agreement.

Originally Posted by Korodny

Did you already apologize to Jörg Strohmeyer, for being involved with 3.1.4 which contained his code without a license?

I surely talked to him, of course, and it was a nice and friendly chat. May I, however, point you to what the actual source code says:

/* Project AmigaOS4 CDFileSystem
**
** AudioCD FS and CDXA (VideoCD) functions.
**
** Written 2002-2007 by Jörg Strohmayer <j_s@gmx.de> for Hyperion Entertainment.
** (c) 2002-2007 Hyperion Entertainment.
*/

If you would read that header, what would you conclude who has the copyright? I'm sorry, but for me that sounded a perfectly valid statement that this is Hyperion source.

Originally Posted by Korodny

I'm glad that you don't have a problem with this "nonsense", but maybe you should sometimes try out other sources than just Ben?

The only source I'm trying is the Settlement Agreement.

[saimon69]

A note aside, Herr Hermans favorable judgement make me fear for AROS that he often disliked, and is not news that hyp in the past wanted to be the only game in town; while the API problem is partially voided by the oracle vs google outcome, still i keep an eye open

[DisasterIncarna]

Originally Posted by klx300r

IF the lawsuits are FINALLY over then it’s about time both parties start working together for the sake of the community and move forward with rather than wasting time and money on lawyers

before all us 40-50 year olds start dying off with interest.

[Gorf]

Originally Posted by Thomas Richter

Err. Have you read the settlement agreement? AmigaOs 4 is defined as "The Operating System developed by Hyperion". So, yes, 3.2 is "AmigaOs 4" in the sense of this agreement.

This interpretation is probably falling short:
3.1.x and 3.2 (and so on) are of course not originally developed by Hyperion, but in significant (or overwhelming) portions it contains code from Commodore.
The wording "The Operating System developed by Hyperion" is clearly used as a description for OS4, with the purpose to differentiate it from OS3 - I would think this intend will be be quite obvious to the judge.

Your interpretation of this wording is clearly far too literal and neglects the context. Especially since such an interpretation would be equivalent of forfeiting any rights to AmigaOS - but if that would be the intent, the whole agreement would make no sense. Ergo this was not the intent of the agreement.

In addition: at the point in time this agreement was made, Hyperion had NOT yet done any development on OS3.x.
Therefor it is very clear, what system exactly is meant by that particular wording: OS4.

Something like that will probably brought forward by Mike's legal team, if Hyperion really would try to pin its presumed rights on this paragraph of the agreement.

[Gorf]

Originally Posted by saimon69

A note aside, Herr Hermans victory

There is no "victory".

[Thomas Richter]

The problem is that even Os 4 code is pretty much CBM code, or in many parts derived from it, so it is not quite so obvious where to draw the line what "developed" actually means. Os 4 was by no means a "clean room" approach. Given its history, it was neither intended to be one.

[saimon69]

Originally Posted by Gorf

There is no "victory".

changed -_-

[malko]

Even if not over, I am glad the Amiga is still going forward
[ Show youtube player ]

[Gorf]

Originally Posted by Thomas Richter

The problem is that even Os 4 code is pretty much CBM code, or in many parts derived from it, so it is not quite so obvious where to draw the line what "developed" actually means. Os 4 was by no means a "clean room" approach. Given its history, it was neither intended to be one.

Derived ... sure. Equal? No.

Taking one step back and looking at it from a distance: yes it is very messy.
But I think it is pretty clear, what was intended by Amiga Inc. - and also pretty obvious, that Hyperion was planting legal traps ...

But like Bush Jr. famously said:
“There's an old saying in Tennessee — I know it's in Texas, probably in Tennessee — that says, fool me once, shame on — shame on you. Fool me — you can't get fooled again.”


Clearly Amiga Inc. back then was not led by intelligent people. And not even represented by intelligent layers. Ben Hermans had a pretty easy game here...

Nevertheless, that of course does not make Hyperion or Hermans & Co. the good guys! Not by a long shot!
(And sorry: I still can not unterstand, why someone would agree to work for them - with all the information out there... let alone working for free )

All in all:
The contract was a big mistake from the very beginning, IMHO.
And IF one would make such a contract, every sensible entity would retain the copyright for the result of the contracted work ...

(I managed to do something similar on a smaller scale ... but who knowns what the scales really are... keeping my copyright on a peace of software, that is now used by my hometown more and more extensively ... and will probably allow me to retire a couple of years earlier....
But again: that is not the way things are usually done!)

[number6]

Originally Posted by jbenam

Hyperion has changed every copyright notice in AmigaOS and Kickstarts to say "(c) Hyperion Entertainment CVBA. Developed under license" and NOT "(c) Amiga Corp. Developed by Hyperion Entertainment CVBA under license". Law is very specific when it comes to wording and such a simple "omission" like that completely changes what it means in a court of law.

They are unlawfully trying to pass something as theirs when it isn't.

Note this is Steven Solie speaking, so he kinda *cough* knows what he's talking about here.

Apparently my text got replaced by show utube player and also the timestamp is lost, so I'll try again.
Hyperion is known to change copyright names and dates to suit their current situation. Period.
Use time 24:12 for a laugh.

[ Show youtube player ]

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[jbenam]

I have wasted ten minutes of my life reading that accursed Settlement agreement just to get facts straight before answering.

Originally Posted by Thomas Richter

Err. Please be so kind and read the settlement agreement. It gives Hyperion the right to register trademarks.

No, it doesn’t. Nowhere it says they can register the marks in their name. They have a perpetual right to it, sure - but it’s explicitly written that the owners are the “Amiga Parties” and not Hyperion.

Originally Posted by Thomas Richter

Err. Have you read the settlement agreement? AmigaOs 4 is defined as "The Operating System developed by Hyperion". So, yes, 3.2 is "AmigaOs 4" in the sense of this agreement.

It only specifically refers to AmigaOS4 and subsequent iterations, like “AmigaOS 5”. Pretty sure they have written themselves in a corner with this. AmigaOS 3.1 was never included, nor its subsequent iterations.

Originally Posted by Thomas Richter

If you would read that header, what would you conclude who has the copyright? I'm sorry, but for me that sounded a perfectly valid statement that this is Hyperion source.

While I don’t know the details of AOS4’s devs contracts, it seems believable that work done by an individual while under a contracts is fully owned by the company paying for such work.

Originally Posted by Thomas Richter

The only source I'm trying is the Settlement Agreement.

Which in many points exclusively refers to AmigaOS4. Trying to make it refer to AmigaOS3.x is a very big stretch that probably won’t fly in a court of law.

[Gorf]

Originally Posted by malko

[ Show youtube player ]

nice!

[Korodny]

Originally Posted by jbenam

While I don’t know the details of AOS4’s devs contracts, it seems believable that work done by an individual while under a contracts is fully owned by the company paying for such work.

Most OS4 developers initially gave Hyperion a PPC specific license for their code. Many revoked said license later on, due to not getting paid.

Jörg Strohmeyer is claiming publicly that (a) Hyperion's license to his code was PPC only and (b) he deleted his code from the OS4 source code repository after not getting paid. He was still posting on amigans.net yesterday or the day before that about how he's going to sue Olaf Barthel (the maintainer of the OS4 repository) - presumably for undeleting his code.

Ben Hermans started to push developers to assign copyright to their code to Hyperion years later, amongst other things by forcing them to sign a newer NDA that allegedly contained a copyright assignment clause - or at least something that Ben Hermans considered a copyright assignment clause.

I wouldn't put much weight on what Thomas found in a Hyperion controlled source code repository a decade after Jörg ran away screaming.

Trying to make it refer to AmigaOS3.x is a very big stretch that probably won’t fly in a court of law.

Not to mention that the guy who signed the agreement on behalf of Hyperion is on record about how Hyperion never intended to target m68k based Amigas and/or update 3.1 - so that could not be the intention of the wording in the contract.

[number6]

Originally Posted by Korodny

Not to mention that the guy who signed the agreement on behalf of Hyperion is on record about how Hyperion never intended to target m68k based Amigas and/or update 3.1 - so that could not be the intention of the wording in the contract.

Since there might be people who don't understand all of your reference:
Evert Carton was managing partner by title.
He was also majority shareholder. Be aware others claimed to be "major" shareholder, which does not mean the same thing at all.
Lastly he has already been deposed and there is yet to be any ruling made in regard to this deposition.

Source deposition
Somewhat pertinent:

Mr. Carton executed the Settlement Agreement on behalf of Hyperion.

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