Hyperion vs Cloanto

[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. 
     

[SpeedGeek]

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.

No, No and No! The settlement agreement ended a previous breach of contract dispute between the Amiga parties and Hyperion in regards to the original Hyperion OS 4 licensing agreement. So, even if the the Amiga parties and Cloanto succeed in having the settlement agreement voided it does NOT void Hyperion's previous OS 4 licensing agreement. However, it would effectively reopen the original case and another trial could then decide whether there is cause to void the original OS 4 licensing agreement.

The settlement agreement may not be viewed as incidental to Hyperion, in particular if it affords them greater rights than the original OS 4 licensing agreement. But I never said it was in that regard, I simple said it was in regards to Cloanto's efforts to stop Hyperion's copyright and trademark infringement activities.     

[SpeedGeek]

Are you sure? This is what the settlement says:

"This agreement substitutes for, supersedes, and replaces all previous understandings and agreements between the parties [...]. No party is relying on a representation not set forth herein."

Doesn't sound like things would just switch back to the way the were before...

Yes, don't you realize that if the settlement agreement is voided as a whole, then all of the above is voided along with it?

But obviously, some things have changed and will not switch back exactly as they were before, but the original OS 4 Hyperion licensing agreement would no longer be superseded or replaced.

[SpeedGeek]

You are likely correct as far as 1.3 is concerned, but how can registering an unregistered trademark be a breach of a contract? The settlement agreement only specifies which tradmarks Hyperion is allowed to use, but not which trademarks they are NOT allowed to register.

That would be a rather "strange coincidence" indeed.

BTW, even if the settlement agreement is voided, Hyperion can still continue with development and distribution under it's previous OS 4 licensing agreement.

Hardly, because it prevents them access to the operating system and the 3.1 sources upon which the PPC port is built.

Registering a trademark comes under the broad definition of using the trademark. So, how do you think it's possible to register a trademark without using it?

Also, how do you propose Cloanto attack Hyperion's distribution and trademark rights separately from Hyperion's developer rights when they are all part of the same agreement?

Lastly, please explain how Hyperion managed to develop and test Beta versions of OS 4 (existing at the time of the settlement agreement) without any license rights to OS 3.1?   
   

[SpeedGeek]

This did not come out of nowhere. In fact, there was a previous agreement on the matter, as the development moved over from H&P to Hyperion, so it was certainly not out of the dark, and certainly not by just stealing the sources (as you may seem to suggest).

The problem arose as Amiga Inc. wanted to collect license fees from Hyperion from using the Os sources, and Hyperion claimed that Amiga Inc. would not have had the license in first place as it remained open in how far rights have been transfered from CBM (via Escom and Gateway) to Amiga Inc in first place.

Actually, you are the one who suggested the stealing of sources, not me.  In any case the original Hyperion OS 4 licensing agreement contradicts those claims:

Amiga hereby grants the AmigaOne partners a right and license to use the Software and an exclusive right to market and distribute OS 4... Hyperion shall develop OS 4 for the Target-Hardware...

The AmigaOne partners mean Eyetech and Hyperion collectively

The Software means the source code of Amiga OS 3.1 and the upgrades of OS 3.1 including but not limited to, OS 3.5 and OS 3.9 and associated Boing Bags 

[SpeedGeek]

Nobody is arguing the settlement agreement should be voided, AFAICT. The Amiga parties are argueing to have it terminated, due to Hyperion's alleged breaches.

In other words: the agreement would still have been in place from 2009 to 2019, and it would have terminated any older agreements for good.

Really? From the Amiga Inc. answer to complaint:

THIRD AFFIRMATIVE DEFENSE
(No Meeting of the Minds)
Consequently, the Settlement Agreement is unenforceable and void from inception.

FOURTH AFFIRMATIVE DEFENSE
(Mutual Mistake)
If both Hyperion and the Amiga Parties were each mistaken as to the meaning of the grant language in paragraphs 1(b) and 1(c), then the Settlement Agreement is voidable for mutual mistake.

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

[SpeedGeek]

Ever heard of something like "salvatory clause"? 

Yes, it's probably more often written as a "Severability" clause. However, there is a notable absence of such clause's in the settlement agreement... And for this particular agreement, if the Court finds there has been a material breach then the agreement terminates as whole (see below). So, voided or terminated have essentially the same results:

Termination. This Agreement and the rights and obligations contained therein, shall enter into force as of the Effective Date and remain in force until such time as a court of competent jurisdiction has issued a final and non-appealable ruling on the existence of a material breach justifying termination of this Agreement. 

[SpeedGeek]

@madgrizzle It makes little sense for those reasons. Frankly Amiga Inc needs to bugger off. They're nothing but a bunch of conmen.

If some party filed an unexpected lawsuit against you, in regards to a matter you believed was "Settled" many years ago, I wonder if you would be willing to just "Bugger Off"?

Regarding Conmen... there is no honor among thieves, it takes one to know one, etc.

[SpeedGeek]

WOW! The Amiga parties have just filed a motion for preliminary injunction, including a sh*t-load of supporting exhibits (e.g. Declaration of Bill McEwen). I wondered when they would get tired of cat and mouse games with "Cease and Desist"  :

MOTION for Preliminary Injunction , filed by Counter Claimants Amiga, Inc, Itec, LLC, Defendants Amiga, Inc, Amino Development Corporation, Cloanto Corporation, Itec, LLC, Consol Plaintiff Cloanto Corporation. Noting Date 1/18/2019, (Troy, Gordon)
      Att: 1 Exhibit 1 - Declaration of Michele Console Battilana,
      Att: 2 Exhibit MB-1 - Hyperion 20091017 Announcement,
      Att: 3 Exhibit MB-2 - Boot Screens 3.1 (Original & 2016 Hyperion),
      Att: 4 Exhibit MB-3 - Boot Screen 3.1.4,
      Att: 5 Exhibit MB-4 - Boot Screen 3.1.4 (update),
      Att: 6 Exhibit MB-5 - Hyperion on Facebook,
      Att: 7 Exhibit MB-6 - Amiga OS discs,
      Att: 8 Exhibit MB-7 - Hyperion website statement 2017-12-31,
      Att: 9 Exhibit 2 - Declaration of Bill McEwen,
      Att: 10 Exhibit WM-1 - 2001 OEM License,
      Att: 11 Exhibit WM-2 - 2008-12-19 Hyperion Draft (Redline),
      Att: 12 Exhibit WM-3 - 2008-12-29 Amiga Draft (Redline),
      Att: 13 Exhibit WM-4 - 2009-03-30 Amiga Draft (Redline),
      Att: 14 Exhibit WM-5 - 2009-02-06 Hyperion Draft,
      Att: 15 Exhibit WM-6 - 2009-02-16 (Exhibit 1 List),
      Att: 16 Exhibit WM-7 - AmigaOS 3.1.4 floppy discs,
      Att: 17 Exhibit WM-8 - Boot-UP Screen Amiga OS 3.1.4,
      Att: 18 Proposed Order
   

[SpeedGeek]

** NEWS UPDATE **

It looks like the snake will be permitted to live a little longer:

Wednesday, April 03, 2019 - ORDER denying Plaintiffs'45 Motion for Preliminary Injunction. Signed by Judge Ricardo S. Martinez. (PM)

[SpeedGeek]

It's a little late for April fools but LOL anyway! 

https://ia903101.us.archive.org/23/items/gov.uscourts.wawd.256770/gov.uscourts.wawd.256770.141.0.pdf

5 years later and the lawyers are laughing all the way to the bank!