Welcome, Guest. Please login or register.
Amiga Kit Amiga Store Hollywood MAL AMIStore App Store

AuthorTopic: Hyperion vs Cloanto  (Read 4970 times)

0 Members and 1 Guest are viewing this topic.

Offline SpeedGeek

Re: Hyperion vs Cloanto
« Reply #90 on: November 15, 2018, 06:52:33 PM »
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.     
« Last Edit: November 15, 2018, 06:55:23 PM by SpeedGeek »
 

Offline cgutjahr

Re: Hyperion vs Cloanto
« Reply #91 on: November 15, 2018, 11:15:47 PM »
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.
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...
 

Offline Thomas Richter

Re: Hyperion vs Cloanto
« Reply #92 on: November 16, 2018, 06:20:18 AM »
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).
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.

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.
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.
 

Offline cgutjahr

Re: Hyperion vs Cloanto
« Reply #93 on: November 16, 2018, 01:21:01 PM »
You are likely correct as far as 1.3 is concerned, but how can registering an unregistered trademark be a breach of a contract?
They're still bound by the settlement, which limits their use of the Amiga marks to certain marks in certain contexts, trying to register another Amiga mark wouldn't be any different than distributing 1.3 - i.e. trying to use IP not covered by the settlement.

Btw., "this mark is no longer registered by Amiga" is not neccessarily the same as "this mark is no longer owned by Amiga" (it probably is, in this case - just saying "registering" and "owning" a mark is not the same.
 

Offline Thomas Richter

Re: Hyperion vs Cloanto
« Reply #94 on: November 16, 2018, 01:49:43 PM »
..
« Last Edit: November 16, 2018, 02:17:20 PM by Thomas Richter »
 

Offline SpeedGeek

Re: Hyperion vs Cloanto
« Reply #95 on: November 16, 2018, 02:04:08 PM »
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.
« Last Edit: November 16, 2018, 02:28:11 PM by SpeedGeek »
 

Offline SpeedGeek

Re: Hyperion vs Cloanto
« Reply #96 on: November 16, 2018, 02:21:27 PM »

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?   
   
« Last Edit: November 16, 2018, 02:26:21 PM by SpeedGeek »
 

Offline Thomas Richter

Re: Hyperion vs Cloanto
« Reply #97 on: November 16, 2018, 02:28:33 PM »
Lastly, please explain how Hyperion managed to develop and test Beta versions of OS 4 without any license rights to OS 3.1?   
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.

« Last Edit: November 16, 2018, 02:30:57 PM by Thomas Richter »
 

Offline SpeedGeek

Re: Hyperion vs Cloanto
« Reply #98 on: November 16, 2018, 03:20:12 PM »

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 
« Last Edit: November 16, 2018, 05:10:51 PM by SpeedGeek »
 

Offline cha05e90

Re: Hyperion vs Cloanto
« Reply #99 on: November 16, 2018, 03:32:39 PM »
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? 

Ever heard of something like "salvatory clause"?  ;)
X1000|II/G4|440ep|2000/060|2000/040|1000
 

Offline cgutjahr

Re: Hyperion vs Cloanto
« Reply #100 on: November 16, 2018, 03:43:40 PM »
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?
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.
« Last Edit: November 16, 2018, 03:45:53 PM by cgutjahr »
 

Offline cgutjahr

Re: Hyperion vs Cloanto
« Reply #101 on: November 16, 2018, 03:51:27 PM »
The problem arose as Amiga Inc. wanted to collect license fees from Hyperion from using the Os sources
No. As was well documented during the AInc-Hyperion trial, Amiga Inc. wanted to buy back OS4 using the appropriate clause in the original agreement. There were different interpretations about what the buy-back clause actually covered and how much money Hyperion was owed for OS4 and some AmigaDE work they had done - hence the lawsuit.

Quote
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.
Yeah, and they actually made some very good points - just to forget about it all the second the were offered a settlement ;)
 

Offline SpeedGeek

Re: Hyperion vs Cloanto
« Reply #102 on: November 16, 2018, 03:56:40 PM »
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.
 

Offline Gulliver

Re: Hyperion vs Cloanto
« Reply #103 on: November 16, 2018, 04:13:58 PM »
BTW, the Amino, Itec, and Cloanto answers all read similarly.

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

Maybe he does volume discount.  :D
 

Offline NinjaCyborg

Re: Hyperion vs Cloanto
« Reply #104 on: November 16, 2018, 05:37:27 PM »
My question is, why are you all so ****** unpleasant to one another? It's not as if there's many of you left. It's like an endangered species of animals who are all so resigned to being the last of your species, that you can't possibly be pleased for anything good to happen to someone else in the group, because you're so full of spite that you can't bear to work together even if that might actually save you.
« Last Edit: November 16, 2018, 06:15:31 PM by amigakit »