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Hyperion vs Cloanto, the longest running lawsuit in the history of computing?

February 15, 2019 24 comments

Delphi and C++ builder developers will probably not have much interest in this, but as far as general IT news goes, this one is attracting interest far and wide due to the sheer absurdity involved. To be honest I also think that the case itself serves as a warning to companies and developers in general, because this truly is the best example of how bad things can go if you don’t manage your patents and rights properly.

So while I’m loving Delphi’s 24th birthday festivities, I find the ongoing lawsuits so amazing that I have to write a few words.

[Edit]: To make the case even remotely understandable for people that have never read about it before, I have left out a ton of details. The whole Amiga Inc scandal (which I believe ordered production of OS4 to begin with?), Eyetech, H&P, the loss of the Amiga OS 3.9 source code. The gist of the post here is not to dig into the details (also known as “the rabbit hole” in the community), but to give a short recount of the highlights leading up to the present situation – and to underline that people who still care for the system, the Amiga community, is beyond fed-up with this. I hope all parties get their act together and find a way to co-exist.  For those that want to dig into the gory details spanning three decades, there is always the Amiga documentation project.

Some context

Long story short, back in the early 90s Commodore, a company that for close to two decades ranked as a giant of computing, collapsed. Years of mismanagement, poor leadership, if not outright shameful, had taken its toll on the once fierce giant; And as the saying goes: the bigger they are, the harder they fall. And boy did Commodore fall.

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Commodore ranked side-by side with the biggest names in the industry

What people often forget is that tech-companies have two types of currencies. The first is what consumers consider valuable; things like the products they make, how much money is in the bank, the state of their inventory, good partners and retailers — all points of importance when running a business.

Major players though couldn’t care less about these factors, not unless they align with their own needs. So from a PC company’s perspective, getting rid of the Amiga and butchering Commodore for patents was a spectacular win. Because, and here we get into the nasty parts: for an already established competitor, a dead tech company has one asset and one asset only: namely their patent-portfolio.

So all that buying and selling we saw in the 90s, with Amiga changing hands left and right, had nothing to do with saving the Amiga. The Commodore legacy was reduced to a piece of meat and thrownto the wolves, each ripping into its patents left and right. So while graphic, the piece of meat in this analogy held an estimated value of a billion dollars.

Patents are valuable because they represent repeated income and a level of financial security unline ordinary currency. Large companies use patent portfolios in combination with their insurance. IBM is more or less the archetypical example of this. They remain one of the richest companies in the world, but spend their time tinkering with super-computers and science experiments. “Big Blue” haven’t “worked” in the true sense of the word since they started licensing out PC as a platform. They own the patents for pretty much everything we know as a PC today, and don’t need to compete. They make a fortune just sitting there.

Climbing up the rabbit hole

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Gateway and Escom both tried to save themselves using the Amiga patents, but they failed

When Commodore fell, the vultures moved in quickly. People have focused so much on the Amiga computer and branding aspect of Commodore, that we often neglect that the true value of such a giant was never the end-product, but the intrinsic values of their patents and technological inventions.

Very few knew the identity of the party now in possession of the Commodore patent portfolio until quite recently. It caused quite a stir online when I published the name of the owner last year (both on this blog and Amiga Disrupt on Facebook).

Just to underline: this information have never been secret or anything of the sorts. It’s just a type of information ordinary people wouldn’t know where to find (myself included). You have to know where to look and what to look for. And while I have some experience with copyright cases and intellectual property – I would never have found it without a heart to heart with Trevor Dickinson. The major shareholder in Aeon, which produces the Next Generation Amiga system (x5000 and the upcoming A1222). He kindly helped me through the avalanche of older court documents and pointed me to an article series in AF Magazine that I had no idea even existed.

I should also stress that I have no special friendship with Trevor. I have talked to him on various occasions and we share a passion for the Amiga system. He has always been very kind, but I don’t know him personally. Nothing I write here is done in his favour or out of some form of loyalty. I simply find that A-EON and Hyperion’s plans and products makes the most sense in 2019.

When the mysterious owner of Commodore and Amiga turned out to be Acer my jaw dropped. They had been sitting on the patents for all these years without making a sound. From Acer’s point of view the Amiga computer is worthless and they wouldn’t give a cup of coffee for the Amiga name or its legacy. So the Amiga name and legacy code was sold off long ago. Acer handles technological patents that commodore deviced, from PET to 3A no doubt. Amiga as a platform is uninteresting to them.

How Acer got a hold of the portfolio can only be speculated on, but I would imagine they snapped them up when Escom went under. How much of the original portfolio remains intact is anyone’s guess. The classical Amiga OS source-code was, as we know, acquired by Hyperion from Amiga Inc years ago. That was the 3.1 version. Interestingly the 3.9 version was bought by H&P (a german company) and was sadly lost when they existed the Amiga market permanently.

Workbench and hipsters

For those that haven’t read or followed up on the “Commodore case”, the license holders mentioned above (A-EON, Hyperion, Cloanto), have been at each other’s throats since the brits annexed India. Which is why this case has become interesting for others as well.

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Nobody under 33 years of age would associate this with Commodore or Amiga.

To give you some examples of the epic battles at hand: they have argued in court over the right to use a checkered bathing ball, you know those you can buy almost anywhere and that resemble a french table-cloth? Oh yes I kid ye not.

They have gone to court over the misuse of said bathing apparatus, the misrepresentation of the ball, who owns the ball, it’s buoyancy – and let us not forget trademarking the word “Workbench” (the name of the desktop system the Amiga uses). A word today only used by hipsters in meth-labs and tool-time-tim wannabe’s on YouTube. The absurdities are so dense you could bottle them.

If we look at the many struggles since Commodore went under from a bird’s eye perspective, we are essentially seeing the same lawsuit on infinite repeat (with a few variations here and there). I got married, I had kids and 15 years later I got divorced. And when I got back they were still at it! Good god guys, what a complete and utter waste of time, resources and talent (The lawsuits not my marriage. Well maybe both), not to mention counter productive! If anything these frequent lawsuits are destroying what both parties are trying to protect. Although I question if one of them indeed are.

If I was to go back to school and re-invent myself, I would become an author. All I had to do to was take the Commodore story and place it in middle-earth, give the people involved pointy ears, brutal weaponry and silly names and voila! A tale that would make Tolkien himself weep; because great as his imagination was, never could he have concocted such a story. Not even Keith Richards if we let him loose in a pharmacy on “take all the drugs you can carry day” – could make up a timeline as insane as the Commodore aftermath.

Lawsuits 1-0-1: Que bono?

To catch you up with the present events, let’s just go through the basics first.

It can be difficult to distinguish between Hyperion and Aeon, so lets start with a few words about that. Hyperion is ultimately a software company. They started (if I recall correctly) as software house porting PC games to the Amiga platform.

I previously wrote that Trevor was the major shareholder in both companies, that was actually wrong, he holds a very small role in Hyperion. But who owns what here is ultimately pointless. The relationship between Hyperion and A-EON is that Hyperion represents the software branch, and A-EON is the hardware branch. And combined they make out the owners and producers of what is commonly called “Next Generation” Amiga machines.

A-EON and Hyperion hold the rights to develop Amiga OS, covering both the classical 68k version and the NG models which are PPC based. Cloanto have only sales rights, which are limited to the legacy 68k ROM kernel files, and workbench. That is ultimately what separates these two groups. So even though there are 3 companies involved, it’s easier to regard them as two separate entities.

And yes we could argue that OS4 was instigated by Amiga Inc earlier, but i’m trying to keep this readable for people that haven’t read anything about this silliness before, so i’m skipping all of that.

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Amiga OS is loved by many, but to be frank it’s reached the point that fighting over it has long since passed. A teenager today knows PSX, XBox and completely different brands

Until recently Aeon and Hyperion have focused completely on their Next Generation system. Aeon creates the hardware and Hyperion does the software. Hyperion also offers the older legacy roms and Workbench in their webshop. But until recently they have been more interested in selling next-generation software and machines.

Cloanto have been exclusively about legacy. They have no license that involves software development, and are for all means an purposes a retro retailer (or undertaker if you will). They sell old Commodore stuff, and that’s it. So while they have argued like cats and dogs over absolutely everything, like that worthless boing ball and the name “workbench”, they at least managed to co-exist somehow.

That was, until Hyperion listened to the Amiga Community and released an update for the 68k platform. Which is perfectly within their rights to do. They have a license that covers both 68k and PPC. Acer has set a clause (from what I can tell) that they are not allowed to touch x86, but as far as 68k and PPC is concerned — Hyperion is well within their rights to issue an update. After all they own the source-code for Amiga OS 3.1 which I mentioned above, Cloanto does not.

The response from the community was quite frankly outstanding. Finally a proper update for both Workbench and the kernel! Everyone was ecstatic and the whole scene was filled with positive hopes that things were finally moving forward. This was after all the first real update since Napoleon was in office!

Cloanto however, not so much. Because even though they share the sales license with Aeon, they have no rights to the new software created. They don’t make a penny on the new 68k kernel (rom files) or the new Workbench. They can continue to sell the older variations of Amiga OS, but they have no legal right to software written and issued in 2018. Cloanto responded like they always have, by issuing a lawsuit.

So the reason Cloanto took Hyperion to court for the 13th thousand time, has nothing to with open-source (a rumour that was planted before Xmas). It is motivated purely by greed and the fear that the Amiga might actually spring back to life.

And this is where we get to the nasty parts

Legacy software undertakers

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Legacy software is not unlike the undertaking business

First of all, and I want to make this crystal clear: Cloanto’s entire business model rests on the Amiga remaining dead. In a bizarre twist of irony, the self-proclaimed caretakers of Amiga actually face financial ruin if the Amiga ever became popular or rose from the grave. Stop and think about that for a moment: They make money on the Amiga remaining a dead system.

The only product Cloanto have actually produced, is a pixel paint program called PPaint, which was awesome back in the previous century.

The state of affairs for the past 18 years, is that Cloanto depends completely an emulator, UAE, short for “The Unix Amiga Emulator”, when it comes to the Amiga . Which ironically is not Cloanto’s work at all, but an emulator created by Bernd Schmidt, Toni Wilen and Mathias Ortmann; neither have received a penny despite Cloanto profiting on their work for close to two decades (!)

The selling of legacy Commodore software I have no problem with at all. But what bakes my noodle is forking UAE and selling it for profit without giving something back to its original authors? I have yet to see the source-code for Amiga Forever on Github for example? The laws of GPL are pretty straight forward. I’m not saying that the source code does not exist, i’m simply saying that Cloanto has gone out of their way to keep it hidden.

Sure it may be legal but I find it somewhat tasteless. profiting on UAE for all those years, and not even a symbolic sum for the guys that keep UAE going? I mean, had they actively participated and contributed to the UAE codebase I would have applauded them for it. Sadly Cloanto presents itself as a blatant opportunist more than a preserver. They say one thing, but their actions speak of something else entirely.

And don’t get me wrong, Hyperion and Aeon have more than enough mistakes on file. But when comparing Hyperion’s mistakes against Cloanto, remembering that these two have an obligation to represent the Amiga legacy to the best of their ability — you cannot help notice that they are worlds apart. Hyperion is producing new software, Aeon new hardware, and they have even given the much loved 68k systems a do-over.

This where I get a bit worked up – because Cloanto have nothing to do with software or hardware development. It is quite frankly none of their business (in the true sense of the word). They have licensed the old kernel and Workbench; they have also bought the C64 roms – and that is where their role ends. Yet they spend more time trying to obstruct Hyperion (and by consequence, Aeon) at every step of the way.

While I have no idea who sits on the c64 rights these days, the c64-mini has sold in good numbers around the world. Since Cloanto is the only company with c64 rights I presume they have cashed in on that? Like always it’s hard to tell, because there are more than one company that claim to sit on pieces of the true Commodore legacy.

So to sum up: we have one side producing new hardware, new software and doing updates which is their obligation and right. And we have another party who has created nothing, including the heart of their business, demanding a cut of something they shouldn’t even be involved in (!)

Greed, the mother of invention

Cloanto’s motives should be pretty obvious by now, but let’s hash through it.

With a new Workbench and kernel out in the wild, Cloanto find themselves in a difficult position. Who would want to buy an older kernel or Workbench when there is a newer, 2018 version available? Well, I would like all of them to be honest, but yes I obviously want to use the new versions as much as possible.

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The A1222 was due out Q1 2018. It remains on hold until the lawsuits are finished. Keeping Hyperion and Aeon in court is a matter of survival for Cloanto at this point

But that alone is not enough to explain Cloanto’s panic-stricken behavior. They could welcome the new update and simply license it, like they should because they have no right to another companies work.

Instead they run out and buys the remnants of that company I mentioned earlier, Amiga Inc, which is a straw company that has a terrible reputation involving fraud and investor scams. A company that for some magical reason had the right to the name “Amiga” (like that holds any value in 2018, good lord what are you people doing) and sat on the source-code for the OS. This is the same source-code that Hyperion ended up buying, which is no doubt the foundation for the update before xmas.

Why would they go to such lengths as to secure a superficial paper-tiger like Amiga Inc? Trying to reverse the process? Looking to hijack the Amiga names? What gives? It’s almost like Cloanto is looking for something to fight over, desperate to keep Hyperion in court for as long as possible.

And why would they refuse to sell 2000 roms to myself and Gunnar to make ready-to-use Amiga “mini” machines? If I didnt know better, they are brewing on something. The market is just ripe for retro, and their behavior towards us hints that they are not very happy about Amibian’s existence.

It makes even more sense when you factor in the long-awaited A1222. A whole new Amiga that Aeon and Hyperion is 100% invested in bringing to market.

The Amiga A1222 is a Next Generation PPC Amiga that should retail at around USD 450. This product was supposed to reach the market in Q1 2018, but with the lawsuit(s) and drain on funds, getting the product out the door has been impossible. So much so that Cloanto is now damaging Hyperion (and Aeon) by proxy.

Around Xmas 2018 Cloanto began spreading the rumor that they were fighting to “open source Amiga OS”. That is a blatant lie and I was tempted to write a piece there and then, but I have been busy with work. I also thought Amiga users wouldn’t fall for such an evident lie, but some people actually cheer Cloanto on — believing that Cloanto can somehow “help” the Amiga platform. For Christ sake, Cloanto doesn’t even have the source-code – much less the right to open source Hyperion and Acer’s intellectual property. Buying the remnants of Amiga Inc might be an attempt to buy credibility, but its 20 years too late.

The present legalities are, to be blunt, nothing more than a diversion designed to keep the A1222 out of the marketplace. The question is: why and will they try to replace it with something?

Although the motives are now painfully visible, so much so that it might as well be lit up in neon – I think Amiga fans should be very careful where they place their trust. I am sorry but I would not trust Cloanto with a stick of gum, much less the computing legacy of a giant like Commodore. And they are brewing on something, either directly or indirectly, mark my words.

Normally I don’t take sides, but I seriously hope Cloanto wakes up and realize that they are right now, and have been for some time, the spearhead that is keeping the platform in limbo. I have nothing against them personally, but we have now passed the point of no return. You are now risking the codebase of a system that thousands of people care for.

I think I speak for quite a few when I say: Enough! Put that energy, time and money into making something – because whatever you guys started arguing over, is long gone.

There is a whole generation that has grown up without any knowledge of Amiga. Who have no clue what Commodore was and represented. So while you guys have been fighting about who gets to sit where, the boat has left and you missed it.

Final words

You know why I find the most annoying about the situation Cloanto have created? Hear me out here.

Sun Microsystems spent a fortune drumming up support for Java, selling people on a lofty dream where a whole operating-system would be written as bytecodes. And that in special hardware would be made so that bytecodes could run anywhere. Because said bytecodes would be portable between platforms even, and solve the problem with platform bound software once and for all. Companies pumped billions into that dream, yet for all their wealth and power, they failed.

Meanwhile Cloanto, and by extension Hyperion, have had access to UAE since the 90s. A system that embody all the traits that Sun Microsystems attempted to create, and all they have done is to add a menu to it. They have wasted close to two decades without realizing that UAE is that holy grail that Sun Microsystems failed to deliver.

68k machine-code is bytecodes if you execute it on another system. And the distinctions between “virtual machine” and “emulator” are ultimately conceptual – not factual. UAE could have been adjusted as a virtual machine. There you have the compilers, the ecosystem and all the pieces you would need to deliver a portable, blistering fast software deployment system that is truly platform independent.

So, Cloanto, you have been sitting on a gold mine. And you didn’t recognize it because you were too busy arguing over balls, chicken-lip logos, old roms and god knows what else.

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You have had solid gold for ages, but you were too busy arguing over names to see it

I sincerely hope Acer takes an active role in their licensing, because as far as I can see, Cloanto is not acting in Acer’s financially best interest (nor Hyperion’s for that matter, which last time I checked can withhold all and any changes to their OS, leaving Cloanto with the dry bones from the past) – and they have become, unless they perform a complete makeover before their next lawsuit, unfit to manage the intellectual property and licenses they have acquired.

You don’t have a developer license, so stick to the legacy stuff and stop getting in the way of those that do.

And for christ sake give the guys who make UAE a percentage, it is tasteless and ugly to watch this level of greed. Seriously.