Hyperion vs Cloanto

[Gulliver]

Cloanto may not have been able to develop 3.14 but they certainly would have been able to distribute it (with legal trademarks). On the hand, Hyperion's inability to distribute 3.14 (with legal trademarks) suggest a common sense collaboration between the two companies. But of course, this is not possible due to the greed and dishonesty of Hyperion's management.

As far as the 3.14 hosting for digital download issue, Hyperion blindly filed a lawsuit against the Amiga parties and without any serious consideration of the consequences of their actions. So to say Hyperion is in no way responsible, is not correct either.           

You just dont seem to get it:

Cloanto could have not been able to both distribute and/or develop 3.1.4 due to the content of the contributions, as Thomas mentioned.

There is no devil and no angel here: both companies have played their cards in order to try to accomplish the destruction of the other, instead of cooperating.

[Gulliver]

You just dont seem to get it:

Cloanto could have not been able to both distribute and/or develop 3.1.4 due to the content of the contributions, as Thomas mentioned.

There is no devil and no angel here: both companies have played their cards in order to try to accomplish the destruction of the other, instead of cooperating.

No, it's you who doesn't get it. I didn't say Cloanto had the developer rights but the only the distribution rights. Assuming, Hyperion has the developer rights (which include the 3.1.4 contributions) then cooperation would be possible.

BTW, Cloanto already has the rights to some of the OS3.5 and OS3.9 contributions (e.g. 3.X). Don't you think 3.1.4 users would like to have these contributions included as well?
   

You still dont get it: Cloanto has no rights to distribute 3.1.4, and I am not assuming this, I know this for a fact, as I have seen the 3.1.4 source code, and I know where the contributions come from, and so does Thomas.

In the end, we can discuss it all you want, but it does not matter what you or I think would be best for the Amiga community, because it is not for us to decide.

[Gulliver]

Those links are not rulings, just claims from a party (Cloanto).

And even more than that, I believe you are missunderstanding what Cloanto was trying to accomplish in the ammended complaint: They were trying to address the 3.x issue, and position themselves in a better way regarding it. Nothing more.

[Gulliver]

Those links are not rulings, just claims from a party (Cloanto).

And even more than that, I believe you are missunderstanding what Cloanto was trying to accomplish in the ammended complaint: They were trying to address the 3.x issue, and position themselves in a better way regarding it. Nothing more.

The Cloanto claims appear to be supported by circumstantial evidence. Cloanto has successfully registered their Amiga Forever trademark and Kickstart 1.3 copyrights with the USPTO. Also, Cloanto has distributed their 3.X update and enhancements for at least 10 years without any objections from the Amiga parties.     

Yes, indeed.

And that is one of the reasons the lawsuit is happening: Hyperion claims Amiga Inc. and/or its subsidiaries/shell companies did not defend their rights as they should have according to the settlement agreement.

But then despite Cloanto recognizes the agreement, they say it is no longer valid due to an alledged Hyperion´s breach.

And that is where things get really messy, and they both throw wild accusations upon each other to see what sticks.

A sad state of affairs for certain. 

They shouldnt have stepped into each others toes.

[Gulliver]

Of course a later contract cannot invalidate a contract made earlier with another party. Though, at this time, nobody knows which rights Cloanto actually did have before they bought 3.1. If, however, you look into the Settlement agreement, you find mentioned that it states "Sufficient rights for emulation purposes". This does not say much, but at least you can derive a direction into which these rights go. It would surprise me if you need for emulation purposes a development licence, but, indeed, I do not know.

If, however, Cloanto do have develoment rights, it would have been ideal to let me know when requesting the Shell and layers as this would have allowed to evaluate the request in a slightly different light. Neither Cloanto seems to make a claim in the direction of a development licence - instead, they attack the settlement agreement which prevents them from development. If Cloanto has, the best policy they could run would be openly publish this contract. Again, anybodies guess why, but for me it seems to indicate in the same direction.

At this point, I have nothing substantial from Cloanto that supports that they actually do have development rights - and it is anybodies guess of what precisely they have that predates the latest acquisition.

EDIT: After reading Cloanto's answer to complaint, apparently they are now claiming developer rights too:

The various rights granted to Cloanto IT srl, and later transferred or licensed to CLOANTO, can be summarized as follows:
(a) The right to market and sell software that allows modern hardware and operating systems to emulate AMIGA hardware (“Amiga Emulation”), and to run AMIGA operating systems 0.7 through 3.1, as well as updates, patches and enhancements by Cloanto IT srl and other various third party developers (“Enhancements”), and applications and games created for AMIGA operating systems by third parties and Cloanto IT srl, which has been a prominent AMIGA developer since the 1980s.
(b) Since 1997, the right to develop, market, and sell Amiga operating systems and Enhancements for use on AMIGA hardware   

Also, Cloanto has not attacked Hyperion's developer rights, only Hyperion's distribution of Kickstart 1.3 in violation of Cloanto's copyright and Hyperion's
abuse of Cloanto's trademark rights.     

You are wrong again. You should read the entire court case.

Cloanto is clearly attacking Hyperion saying that Hyperion has no rights at all since the settlement agreement according to their view, is now void due to breach of contract.

And not only that, they are the ones who are complaining about AmigaOS 3.1.4 with wild claims just to muddy waters even further.

Understand that Cloanto legally needs to clearly position themselves as holders of development rights to legitimate their 3.x product line, which is one of Hyperion´s complaints.

Again: there is no angel and no devil here, in both cases it is just the search for the destruction of the other "competitor" company.

Capitalism at its best. 

[Gulliver]

i dont really like to take sides here. i understand that you have placed your bets with one entity and therefore tend to side with them. but look: for many many years this entity has declared complete disinterest for a market share held by another entity. now, probably as result of independent developments in this area and in consequence of of your following initiatives (p96, 3.x update) this market share become increasingly attractive and the entity you allied with started to expand in this area. what have you expected to happen? i mean, you are actively intermediating in licensing of these codes for a while, or at least trying to, you must have been informed about the reality of the situation and the risk involved. this is essential for quality cooperation, id expect.

No one is taking sides in this case. You need to re-read the open letter to the Amiga Community by Thomas and Olaf to understand that.

Hyperion just happened to give green light to the 3.1.4 project and had sufficient rights to ensure a legal umbrella under which this project could be carried out.

[Gulliver]

it was a contribution to the community

That was the goal, and as Thomas said, it was achieved. 

[Gulliver]

You need to re-read the open letter to the Amiga Community by Thomas and Olaf to understand that.

but the community is simply not in charge, open letters wont change that.

Hyperion just happened to give green light to the 3.1.4 project

for a revenue. if you asked someone else to "give green light to the project" (for that revenue) and they granted you that, you might likely found yourself blocked off exactly the other way around.

and had sufficient rights to ensure a legal umbrella under which this project could be carried out.

apparently this remains to be proven.

3.1.4 is already out, and it cannot be un-released by any means (unless you have time travelling abilities).

The rest is just another unfortunate soap opera in the long Amiga saga.

Pick your favorite pop corn and watch them torn each other in season 2018-2019.

[Gulliver]

how I see it...

all companies involved understood that the 68k market is the only one you can still earn money (partly because of activities around apollo/vampire). For a long time Cloanto was involved in the 68k market (emulation)

And that is where the problem started in 2010, when Hyperion stepped into that acknowledged by all (except Hyperion) Cloanto emulation market, without consulting Cloanto.

#6

According to both parties (Hyperion and Cloanto), the problem started with the settlement agreement which was earlier than that.

They both state their own particular opposing views on the settlement agreement in the case documents.

[Gulliver]

And that is where the problem started in 2010, when Hyperion stepped into that acknowledged by all (except Hyperion) Cloanto emulation market, without consulting Cloanto.

But we have a free market here, don't we? This is what I mean by "competition". No problem doing so - if you have a better product than your competitor. I am not aware that there was any contract that enforced an exclusive licence for a particular market.

I'm merely attempting to correct a rather common misconception that issues only began to arise because of 3.1.4 or Vampire interest.
I'm not going to participate in the trying of the case in the forums.

#6

Correct a missconception by setting in another one? Not participating by participating?

[Gulliver]

Why those "two parties" can't simply understand that they could COLLABORATE? Really, why not?

I see this question or something quite similar posted over and over. You need to understand the timeline. Initially this was about Cloanto and Hyperion, true.
The moment the Amiga parties entered the fray that changed.

The recent cease & desist notices come from the 3 Amiga parties, not from Cloanto.
Source

#6

Cloanto simply got those parties involved to gain leverage, as they did not have enough rights on their own to challenge the copyright claims.

I am pretty sure it is just a mere coincidence that Cloanto and all other parties involved have agreed the same representation on the same court case despite they are sued for different things. 

And is funny how Amino all of a sudden got up from the grave.

This is not a sweet and innocent game.

No angels and no evils, just players.

[Gulliver]

You are wrong again. You should read the entire court case.

Cloanto is clearly attacking Hyperion saying that Hyperion has no rights at all since the settlement agreement according to their view, is now void due to breach of contract.

And not only that, they are the ones who are complaining about AmigaOS 3.1.4 with wild claims just to muddy waters even further.

Understand that Cloanto legally needs to clearly position themselves as holders of development rights to legitimate their 3.x product line, which is one of Hyperion´s complaints.

Again: there is no angel and no devil here, in both cases it is just the search for the destruction of the other "competitor" company.

Capitalism at its best. 

No, I am not wrong. Simply, because Cloanto says the settlement agreement is now void due to breach of contract does NOT mean the breach was due to Hyperion's abuse of it's developer rights. Hyperion, has already breached it several other ways. Specifically, distribution of software they have no rights to
(e.g. Kickstart 1.3) and trademark abuse (e.g. registering Cloanto's trademark in the EU and claiming rights to Cloanto's Amiga trademark).

The above are only few examples of the numerous Hyperion breach's, but they are certainly the most blatant of them. The possibly that the settlement agreement could be voided as a whole, which may affect Hyperion's developer rights does not mean Cloanto is specifically attacking Hyperion's developer rights. It is merely incidental.

BTW, even if the settlement agreement is voided, Hyperion can still continue with development and distribution under it's previous OS 4 licensing agreement.  Whether or not this restricts Hyperion in some ways is not exactly known. 
     

The settlement agreement is not incidental, it the core of the matter.

Whoever wins in this point will ruin its adversary.

If Cloanto gets the resolution that the the settlement agreement is void, Hyperion will loose absolutely all Amiga rigths (including OS4 rights). This is because the previous license agreement has been legally declared breached by Amiga Inc., and that is why they had to make a settlement agreement in the first place. So if there is no settlement agreement, there is nothing to support Hyperion.

If Hyperion gets the resolution that the settlement agreement is still valid without any modification, they will be awarded their claim of loss of revenue which will most likely end up edging Cloanto into a bankrupt situation due to discontinuation of  3.1.4 online sales, 3.x development line and 3.x physical roms between other things.

My take is that just by witnessing what each party has done up untill now, they are both confident they will crush their opponent in court.

Also keep in mind that many times court cases are not won or lost by the core arguments themselves. Many times they are resolved based on legal technicalities.

[Gulliver]

BTW, the Amino, Itec, and Cloanto answers all read similarly.

I would certainly like to be Gordon E. Troy and receive that triple paycheck. 

Maybe he does volume discount.