Hyperion vs Cloanto

[SpeedGeek]

I think Hyperion is winning

Why? The trial has not even started yet. Both Cloanto and Amino have demanded a jury trial. AFAIK jury selection has not even begun...   

[SpeedGeek]

UPDATE:

The 5 day trial is scheduled for 12/9/2019 so live long and prosper my curious friends! 

https://www.pacermonitor.com/public/case/23929642/Hyperion_Entertainment_CVBA_et_al_v_Itec,_LLC_et_al

[SpeedGeek]

The best thing that could ever happen to the Amiga community is for HYPErion to Go Away. That company (not the devs) have done so much harm to the amiga world its not even funny.

+1!

[SpeedGeek]

@magnetic:

I don't see how that is the case, one company has written OS4 and improved OS3.1, the other is a parasite company that sells a free emulator.

Hyperion seem to have a stronger legal case which is fortunate because if they lost it would be disastrous for the Amiga community, most likely the end of any further development of AmigaOS.

WTF? Stronger legal case? The legal dispute is not about OS4 (or even an improved 3.1). It's about Kickstart 1.3 distribution rights and the specific trademarks which both "Parasites" are entitled to use.   

Now, if both parasites had strictly followed their license agreements then there would be no legal dispute. But what happens when one parasite claims implied rights which infringe on the other parasite's rights?    

[SpeedGeek]

@SpeedGeek:

I know the case is not about OS4. But if Cloanto win all the damages they are seeking it would surely bankrupt Hyperion. And an extra year of uncertainty hanging over the situation doesn't help the Amiga market either.

Hyperion has been technically insolvent since the temporary bankruptcy situation in 2015. They probably avoided filing financial reports to the Belgium Central Bank for that specific reason, but have only recently filed them in support of their case: 

http://www.amiga-news.de/en/news/AN-2018-08-00011-EN.html

If Cloanto wins the damages they are claiming they are not likely to collect on them (e.g. you can't get blood from a turnip). IMO Cloanto's best outcome is to drive the last nail in Hyperion's coffin and possibly obtain a Court award for some of Hyperion's IP rights.     

[SpeedGeek]

Cloanto may not have been able to develop 3.1.4 but they certainly would have been able to distribute it (with legal trademarks). On the hand, Hyperion's inability to distribute 3.1.4 (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 3.1.4 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.             

[SpeedGeek]

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?
   

[SpeedGeek]

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.

From the Cloanto amended complaint:

Since 1997, under its AMIGA FOREVER trademark, Plaintiff has been the world leader in software that allows modern hardware and operating systems to emulate legacy AMIGA hardware and run AMIGA operating systems 0.7 through 3.1 (“Amiga OS’s”), as well as updates, patches and enhancements by various Amiga developers (“Enhancements”), AMIGA applications and games

Since 2000, also under its AMIGA FOREVER trademark, Plaintiff has offered and sold an Amiga OS “3.X,” which consists of Amiga OS 3.1 with further Enhancements. Cloanto released Amiga OS 3.X in order to address various needs, including those that might arise from “Y2K” and the rapid rate of growth in the size of hard drives. Unlike the Amiga OS’s0.7 through 3.1, Amiga OS 3.X did not initially run on original AMIGA hardware

[SpeedGeek]

Cloanto does not have rights on 3.9 or 3.5. They are entirely at H&P and at contributing parties, not at Cloanto. So while I certainly do not know how agreements with other parties were made back then, I hold rights on ViNCEd and BenchTrash all alike, also on the IOTools and probably a couple of other components I forgot. Me alone, and not Cloanto, and neither Hyperion, and neither H&P anymore, which just had a 2 years limited licence. I just decided that 3.1.4 was not the right place to include my contribution, so everybody is invited to get them from Aminet if found appropriate.

In fact, unless there is some hidden earlier agreement between Amiga Inc. and Cloanto that predates the settlement agreement beyond what I know, Cloanto could not have developped 3.X in first place (did they even develop anything?) without having development rights which were (negotiated) exclusively to be at Hyperion's side. As far as I know, Cloanto has sufficient rights "for emulation purposes", which does not state much. They can surely sell ROM images (1.2 up to 3.1 even), they may even have rights on the source code for 1.3, but none of that would have helped for 3.1.4 in any particular way.

3.1.4 with Cloanto would have been a much harder work, and it would have required to replicate a lot of work unnecessarily.

https://www.amigaforever.com/kb/15-107
 

[SpeedGeek]

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.       

[SpeedGeek]

And why does  a trademark or copyright registration for 1.3 cover anything for 3.1?

So, a couple of things: First of all, an UPSTO registration means nothing - it is rather optional. An UPSTO registration cannot invalidate an international contract. Second, if you search for the copyright registration for 3.1, you will find that it is *not* registered by Cloanto (yes, been there, done that). They cannot. If you look into the Settlement agreement, you'll see that Hyperion there received the right to register themselves if Amiga Inc. does not register them after 30 days - but they have not done either.

The obvious reason that neither Cloanto nor Hyperion have registered the copyright for OS 3.1 is because neither of them owns the copyright. What they do both own is a distribution license for OS 3.1. What I said about circumstantial evidence speaks for itself.

Cloanto has distributed OS3.X for at least 10 years. So if Cloanto was in "Breach of Contract" all of this time then why is there no lawsuit or "Cease and Desist" orders from the Amiga parties?

By comparison, Hyperion has only been distributing 3.1.4 for only a few weeks and they are subject to all of the above.   

[SpeedGeek]

Which proves nothing - these are just blant statements. I really wonder where they take the right from to distribute some V44 versions of libraries. Did they approach Heinz, for example? I do not know... They approached me for the Shell and layers, but all I could say is that these components were never mine, so it wasn't up to me to release them either. They went straight into the Os 4 pool, same as the scsi.device, by the way.

Just a funny side remark: Cloanto should really update their statement on MP3. MP3 patents run out last year. And, just another interesting remark: I *am* actually working for Fraunhofer Institute für Integrierte Schaltungen. Yes, the MP3 guys, execept that I'm not working on MP3.

Just because you were unwilling or unable to license your OS 3.9 contribution to Cloanto does not mean others did exactly the same. Heinz had already made NSDpatch freely available for the Amiga community so I doubt he would have a problem with Cloanto distributing it.

That fact that H&P contracted out OS 3.9 development to various developers certainly left the door open for Cloanto once those contracts expired.   

[SpeedGeek]

Could you please stop lying? ViNCEd, BenchTrash and IoTools are available for Cloanto and included. They asked for it, and I said that there is no problem including it for a free copy of AmigaForever. They did so, and I received my copy, so no problem. So I'm sorry to destroying your picture or me willing to stop Cloanto. I don't really care. I just don't like people wiggling around arrangements made in the past, and ignoring previous agreements because they no longer fit to their strategy. It is precisely that what happens now, on either side.

Just to state this again: The problem is really that I cannot give permission for things I do not own. It is really as simple as that.

Except that the problem is not NSDPatch, solely by Heinz (which is obsolete anyhow...). Heinz is the author of NSDPatch, so he can do with it whatever he likes, all provided he made a similar agreement with H&P compared to what I did. So thnigs are easy.

The problem is, just to note one component, that Heinz is not the only author of the scsi.device. So the question is whether Heinz did give permission for inclusion (I do not know) and whether Heinz was even in the position to do so (I do not know either, I can only state that I'm not for the shell and layers). And whether by including it in 3.x, Cloanto violated the exclusivity of the development licence Hyperion holds.

The situation is not *that* easy. It is easy in case the corresponding component had a single author. Heinz, for NSDPatch, or me for BenchTrash, ViNCEd and IOTools. Here, it depends on the type of contract between the author and H&P, which may or may not have been expired after 2 years, depending on negotiations.

The situation is incredibly more complicated for components that had been derived otherwise and had multiple authors. I do not know precisely which arrangements Heinz made there with H&P and/or Hyperion (as for Os 4 development), but I can only state that, for his contributions, Hyperion does have a license. Whether that allowed him to provide another license to Cloanto I do not know, and hence my question mark. It looks at least strange to me, but that's just between Hyperion, Cloanto and him.

I can only tell you that I cannot give out licenses for the shell or layers. These components are not mine, and have never been mine, and I am not in the position to provide licenses to things I do not own. All I have is a permission to distribute updates on Aminet, which is less than providing licences to another party.

So, no, the world isn't black and white. It is just an incredibly complicated legal mess we're sitting at, and I am certainly not willing of getting intertwined by all this mess by easily passing out software that is not entirely my own.

The word "Contribution" means singular (one English, eins Deutsch, 1 numerical). Obviously, I was referring to the "One" contribution you did mention, not the other contribution(s) which you did NOT mention. So please do not accuse me of lying based on comments which were never made!

As far as Hyperion's rather dubious "Exclusive" rights to OS 3.1 you seem to have forgotten these rights are "Without prejudice to the rights of existing licensee's" which include Cloanto. So your claim that Cloanto has violated Hyperion's exclusive rights is just as bogus as your lying claim about me. 

BTW, the fact that Cloanto is listed in the infamous Hyperion settlement agreement is also circumstantial evidence which support Cloanto's distribution rights claims. 
               

[SpeedGeek]

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.       

[SpeedGeek]

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.