Amiga Documents 3.2

Introduction

Borrowing from the "So the world may know" quote [1] that was the official title of the amiga.com home page between May 2000 and March 2005, this site aims to expose and preserve events and relationships involving a multitude of companies that held or touched the Amiga torch over the years, including the recurrent legal trolls and snake oil salesmen.

Citing hundreds of documents, this site contains mostly facts, but also a little bit of opinion. Most importantly, it tries to introduce the reader who may not be familiar with "Amiga" into a perspective of things that would otherwise be difficult to grasp by just reading what various self-serving entities tried to convey, or with a momentary glimpse at some forum discussions (whereby the same forums are sometimes owned by more or less aggressive players). The latter is made especially difficult because a small yet loud-voiced community of Amiga users, with its almost religious fervor, has become an unsuspecting accomplice in the dissemination of "fake news".

The original lodestar of Amiga Documents was to expose the rift that was running between the high hopes of the Amiga community and an unfortunate combination of leadership and ownership that started in 1999, and which ended only 20 years later, when Amiga Corporation, run by longtime Amiga developer Mr. Mike Battilana purchased the remaining Amiga assets [277][292]. We intend to continue to watch and document this new chapter that started in 2019, especially as a litigious lawyer-controlled Hyperion Entertainment remains a peril to the dynamics that might otherwise drive the Amiga world and its technical and economic development.

We trust that you will be able to recognize connections and inconsistencies as they are exposed. Kindly report errors and omissions (an email address appears at the end of the text). Also on Twitter @amigadocuments.

Please note: facts were referenced wherever possible. Everything else is personal opinion only!

1982-1987: From Hi-Toro to Commodore-Amiga

A multiplicity of corporate entities had already been in place well before the Amiga launch in 1985. Four "Amiga" companies, sharing in part addresses and officers, had been incorporated in California between 1982 and 1984:

• • Commodore-Amiga, Inc. (incorporated in 1984 as CBM Transitory Company, Inc., later renamed CBM Merger Inc. and then Commodore-Amiga, Inc.) [290]

  • Amiga Computer, Inc. (founded in 1983, was the main operating company until it merged into CBM Merger Inc. in 1984) [251]

  • Amiga International (founded in 1983, merged into CBM Merger Inc. in 1984) [250]

  • Hi-Toro, Inc. (holding entity founded in 1982, then renamed Amiga Corporation and dissolved in 1987) [247]

In 1984, the original Amiga creators, whose signatures were imprinted inside the case of the first Amiga model, sold the company to Commodore (West Chester, PA), the company known for successful 8-bit computers like the C-64. The transaction made Dave Morse, Jay Miner, RJ Mical and other Amiga team members millionaires [248]. As hopes that the West Coast and the East Coast groups could coexist did not materialize, Commodore took over all development. This led to the original Amiga team celebrating an "Amiga Wake" party on April 4, 1987 [249].

1994-1998: From Commodore-Amiga to ESCOM to Gateway

On April 27, 1994, the core group of companies behind the once glorious Commodore and Amiga computers filed for voluntary liquidation.

The liquidation of multiple Commodore-Amiga companies was jointly administered by different bankruptcy courts in a way that set international precedents [215]. On April 20, 1995, after a number of iterations, and bidding in agreement and with the backing of some Asian companies, ESCOM AG (Germany) placed the winning bid for the assets of the Commodore-Amiga companies. Said assets specifically included [231] "all the right, title and interest of the Commodore Entities to substantially all of their intellectual property, including technology, trademarks (including Commodore's logo and the names "Amiga" and "Commodore"), patents, copyrights, and know-how..." The same Asian companies who had backed ESCOM in return received certain non-exclusive rights (including that to publish the Amiga operating system) over certain Asian territories [7].

ESCOM itself initiated bankruptcy proceedings in 1996. Between March and September 1997 ESCOM sold to Gateway 2000, Inc. (which later changed name to Gateway, Inc.) all Commodore-Amiga assets (patents, copyrights, trademarks, domain names, etc.) except for the "C= Commodore" trademarks, which were first licensed [226] to former Commodore distributor [228] RULAG Werner Hirschmann KG and then sold to IBM-compatible PC maker Tulip Computers NV (Netherlands, formerly Compudata).

In July 1997, intersecting Gateway's acquisition of the assets from ESCOM, a German appeals court (Oberlandesgericht Celle, judgment 13 U 97/97) had to decide whether to grant a preliminary injunction to immediately stop sales by Amiga OS 3.1 vendor Village Tronic Marketing GmbH. After a review that included some contracts between the "Commodore-Amiga Group" and ESCOM AG covering the transfer of intellectual property [199] between Commodore-Amiga and ESCOM, the court noted [72][73][14] that no evidence had been provided about a transfer of the Amiga OS 3.1 copyrights to ESCOM. Gateway officers later stated that, in the transition from ESCOM, Gateway did not have the time to prepare for the court case and file supportive evidence. Overall, the case revolved around a payment dispute between ESCOM and Village Tronic, who ultimately lost the case and stopped selling Amiga OS 3.1.

The US Copyright Office recordation [203] was completed in 1998, five months after the assignment of the trademarks [222]. ESCOM's trustee Mr. Bernhard Hembach signed three contracts [205][206][207] that first assigned all the copyrights of Commodore Business Machines, Inc. (Delaware) [208] and Commodore-Amiga, Inc. (California) [204] to ESCOM, and then transferred the same to Amiga Development LLC, a company owned by Gateway 2000, Inc. As is common practice in copyright assignments, separate short contracts and small monetary amounts were used in order to maintain the more complex agreements and figures private (whereas the copyright records become public). Fitting with this pattern, the Commodore-Amiga copyrights changed hands for the total amount of three US dollars.

1998-1999: From Gateway to Amiga, Inc.

In 1998 Mr. Bill McEwen (full legal name William Wallace McEwen XVI) [6] was hired as an independent subcontractor by "Amiga, Inc." (South Dakota) [221][2], a company owned by Gateway 2000, Inc.

Those were the days when there was a lot of excitement around the Internet, and the dot-com bubble was about to reach its peak. While the Amiga was already considered dead by many of its former insiders and technology leaders, it still had a loyal community of fans. These Amiga users were becoming increasingly vocal as they were desperate for new hardware and software announcements, also sensing the pressure of isolation from mainstream IT trends. In many ways, Amiga fans were "believers" like Mac fans, except that Amiga fans, sitting in front of their aging computers, also had good reasons to feel abandoned, betrayed, and perhaps a bit confused and alienated in a computing world that was changing without them.

Many of these Amiga enthusiasts attended the Computer '98 show in Cologne, Germany (one of Amiga's largest markets), in November 1998, where Gateway would represent the final hope of a new beginning. Mr. Bill McEwen attended too, and was impressed: he neither expected to find so many people at an Amiga gathering, nor did he imagine that they would treat anyone associated with Gateway like a demigod.

By 1999, as Gateway believed that there was little value [15] beyond the Commodore patents that it had acquired, an again jobless Mr. Bill McEwen found some investors to help acquire certain rights from Gateway. As part of this transaction, Gateway retained (but licensed to Mr. Bill McEwen's company) the patents, and assigned (transferred) the Amiga trademark registrations, the Commodore-Amiga copyrights and the amiga.com domain to the newly formed company, which was again called "Amiga, Inc." (Washington) [3]. The two initial funding sources [6] were Mr. Pentti Kouri's [8] Invisible Hand LLC and Mr. Ruud Veltenaar's Net Ventures BV in the Netherlands. The two were also joint investors in other companies, for example Digital Ink, Inc. [9].

Gateway 2000, Inc. formally became Gateway, Inc. in 1999. The last of the Commodore-Amiga patents (EP0316325B1 for "Cursor controlled user interface system", based on US887053) expired on July 14, 2007. In October 2007, after it no longer owned any Amiga assets, Gateway, Inc. was sold to Acer Inc. (Taiwan).

1999-2018: A Chapter Worth Forgetting?

The 2019 acquisition of the Amiga assets by Amiga Corporation [277][292] sought to bring to an end the dark chapter that started at the height of the dot-com bubble and ended with little more than hype and lawsuits. The related saga is featured in Amiga: The Dot-Com Years.

2019-2020: From Amiga, Inc. to Amiga Corporation

On February 1, 2019, Amiga Corporation completed the purchase of the Amiga assets [277][292]. The company was originally incorporated as C-A Acquisition Corp., and its CEO is Mr. Mike Battilana, who also serves as CEO of Cloanto.

While stating [292] that the new Amiga entity would keep a "low profile" until the resolution of the outstanding legal cases, Mr. Battilana also commented [293] about the different roles of Cloanto and Amiga: "After the demise of Commodore/Amiga, Cloanto still wanted to celebrate and support Amiga. This was done by the book, working with Amiga and not wanting to replace it. Amiga as a company would have a different role at that."

More details to be added as the situation evolves.

Profile: Cloanto

This section was originally expanded when it appeared that Cloanto would be the acquirer of the Amiga assets in 2019. Since then, it was made clear in public [293] and in personal email exchanges that all Amiga assets, including ones previously owned by Cloanto, would be assigned to the new Amiga Corporation once the legal cases were resolved. Given the "low profile" that Amiga has chosen to keep [292], and since the past activities and statements of both Cloanto and its CEO Mr. Mike Battilana (who then became CEO of Amiga) are a major source of information and hints about the potential future steps of Amiga, this part is nevertheless being retained for the time being.

Having its roots in Commodore 8-bit systems, Cloanto was one of the original software developers for the Classic Amiga platform, for which it had been creating productivity applications like Personal Paint and Personal Write "since the 1980s" (per web and social media pages).

In 1997 Cloanto published, with the blessing of Gateway, the first version of Amiga Forever, a legal and official Amiga emulation package. While releasing new versions of Amiga Forever, Cloanto also continued to work with both Amiga Washington [32] and Amiga Delaware [115].

The Amiga Forever documentation [245] states "The Amiga Forever package is published by Cloanto IT srl ('Cloanto IT'), including items under license from Cloanto Corporation and other licensors." Cloanto IT srl is an Italian corporation, which according to public records [246] was founded in 1987 and is owned 90% by Mr. Mike Battilana, who is also the CEO. Cloanto Corporation is a Nevada, USA, corporation. Ownership details of the latter do not appear to be public record.

In sharp contrast to the public battles between the Amiga companies and Hyperion Entertainment, it became known only in 2011 that behind the scenes Amiga Delaware and Cloanto had been engaged in negotiations over some trademark matters since 2007 [216][217]. According to documents published by the USPTO [218][219], Amiga Delaware and Cloanto reached an agreement in early 2011. Unlike the settlement agreement between the Amiga companies and Hyperion Entertainment, which was published by the court [138], the agreement between Amiga Delaware and Cloanto appears to have remained private. Possibly as part of this agreement, according to documents published by the US Copyright Office [220][225] Amiga Delaware assigned to Cloanto the Commodore-Amiga copyrights it had registered in its name (except for newer works such as AmigaDE and AmigaAnywhere). US trademarks like "Amiga Forever" and "Workbench" also became registered in Cloanto's name [7].

In 2012, while announcing a license that would allow Amiga to publish games for Research in Motion (Blackberry) devices, Cloanto CEO Mr. Mike Battilana appeared to take a rare public stance [312] against the actors that had supported the lawsuits against Amiga: "These have been challenging years for Amiga. While others were staging or funding attacks against Amiga, we are grateful for having been able to always work by the side of all Commodore/Amiga companies since the 1980s. We will continue to celebrate and support Amiga."

At the Saku 2014 event in Finland Mr. Mike Battilana described [229] how the 1997 agreements opened the door and "allowed to build on that license and later slowly acquire some things". When former Commodore and Amiga manager Mr. Petro Tyschtschenko asked what he thought about a Linux-like open source model for the Amiga OS, Mr. Mike Battilana cited the legal work that Cloanto had already been doing to make such an option possible, adding that more work needed to be done.

At the end of December 2015, Austrian self-proclaimed "hacktivist" Mr. Bernhard R. Fischer gave a speech titled "The Ultimate Amiga 500 Talk" [236] at the 32th Chaos Communication Congress in Hamburg, Germany. At about the same time as the speech, during which Mr. Bernhard R. Fischer cited his own past as a "cracker" and "spreader", the proprietary source code of Amiga OS 3.1 was leaked to that same event's file sharing network, and immediately became public [237]. Analysis of this leaked source code revealed how Cloanto had contributed to the Amiga operating system as far back as 1993 [230], leading to some speculation on whether it could use this status in relation to the complex legal proceedings between Hyperion Entertainment and the Amiga parties, and in the context of an open source scenario.

Between 2016 and 2017, Cloanto added some details about "possible futures involving open source, a nonprofit and/or foundation, and other long-term preservation scenarios" to its cloanto.org page [238]. In what seemed like a response to this, Hyperion Entertainment director Mr. Timothy De Groote stated that "We cannot legally support this. Once it is open source, this is an irreversible decision that is beyond the scope of our license under the Amiga Inc. Settlement Agreement." [240].

Hyperion Entertainment and the "Robbery of the AmigaOS"

Belgian company Hyperion Entertainment CVBA (formerly Hyperion Entertainment VOF), was founded by "Intellectual Property litigator" [303] Mr. Ben Hermans, who was also the managing partner and later a director, and engineer Mr. Evert Carton in 1999. Mr. Evert Carton would later distance himself from the company. Current ownership details do not appear to be public record, but multiple sources indicated that as of June 2019 Mr. Ben Hermans was the almost sole proprietor, with a 96.88% stake [285]. Other shareholders include Mr. Timothy De Groote and Mr. Robert Trevor Dickinson [295].

Between 2003 and 2019, Mr. Ben Hermans was also an associate partner at Brussels firm Monard Law [252]. After allegations of incompatibility between the legal profession and the director role in Hyperion Entertainment were raised, the CEO title was handed over to Mr. Timothy De Groote at the end of 2016 [255]. In June 2019, following further allegations of incompatibility and even fraudulent actions [281], it became known that Mr. Ben Hermans was "fired from Monard Law" [284].

Mr. Timothy De Groote is employed as a slaughterhouse cleaner and warehouse worker [254], and is also a local board member [253] of Vlaams Belang, a right-wing populist and Flemish nationalist political party [256].

Between November and December 2019, Mr. Ben Hermans filed a lawsuit against Mr. Timothy De Groote [295]. In March 2021, Mr. Ben Hermans became the sole director of Hyperion Entertainment [300][303].

While Hyperion Entertainment never employed any software developers (or ever had any employees whatsoever), the legal competencies at its core allowed it to conclude licensing agreements to port existing games to different platforms (e.g. from Windows to Amiga), and to outsource such porting work. Hyperion Entertainment was, thus, a "contract house".

Between October [131] and November [132] 2001, Hyperion Entertainment entered into an agreement with Amiga Washington to port the "Classic" Amiga OS 3.1 (or 3.9, according to a possibility laid out in the original plan) from the 68K CPU (as in the original 1985 Amiga) to the increasingly popular PowerPC CPU, which was already used in some newer Amiga expansion boards and in computers by Apple. This was to become Amiga OS 4.0. Mr. Ben Hermans and Mr. Evert Carton both had other full-time jobs (Mr. Ben Hermans as an attorney), and would subcontract the work to external programmers, most notably the Frieden brothers in Germany.

According to the contract [132], the conversion was expected to be fairly simple both in terms of budget ($25,000), specification ("Essentially, OS 3.9 running on the AmigaOne and CyberStorm PPC without using the 68k CPU") and timing ("ready for release in a matter of months"). Mr. Ben Hermans himself illustrated how simple the port was expected to be in a "change some flags and recompile" comment [271]. Everything non-essential was grouped into a different section titled Future Work: "It is clear that the primary concern should be to get OS 4 up and running on both the AmigaOne as well as the CyberStorm PPC cards as soon as possible. After the basic work is done, further updates and goodies may be made available as boing bag upgrades on the road to OS 4.2."

During the development of OS 4, Amiga, Inc. directly attended trade shows and gave demonstrations of its new operating system [291]. OS 4 was, thus, conveyed and perceived as an Amiga (rather than as a Hyperion Entertainment) product.

Once it had received the $25,000, Hyperion Entertainment was supposed to "transfer all Source Code, interest and title in OS 4.0 to Amiga [Washington]" [132], while continuing to pay Amiga Washington royalties for any sales of OS 4.0. Similar terms were confirmed less than two years later with Amiga Delaware [134].

Hyperion Entertainment would later claim to only have received $24,750, i.e. $250 less than the agreed amount, whereas Amiga Washington had claimed to have paid "far more than the prescribed $25,000 payment for that transfer" [243]. In other words, "Some five years after that due date had passed, and despite the fact that it has been paid 150% of the amount stipulated in its agreement with Amiga Washington relating to OS 4.0, Hyperion has not delivered the operating system to anyone – not to Amiga Washington and not to Amiga [Delaware], which by 2004 had acquired all right, title and interest in OS 4.0." [243]

In a series of aggressive escalations, what had started as a clerical $250 error even according to Hyperion Entertainment, evolved into a complex lawsuit coordinated by Mr. Ben Hermans acting as an attorney for his own company against his former clients [135], and funded [239] by British oil millionaire [232] Mr. Robert Trevor Dickinson (who would later also become a shareholder of Hyperion Entertainment).

After the death of Mr. Pentti Kouri (main investor and chairman of the board of Amiga, Inc.) in 2009, the Amiga parties, represented by law firm Reed Smith, preferred to settle the matter [138]. This left Hyperion Entertainment with both the payment for the porting job and a royalty-free de facto ownership of AmigaOS 4 (the OS kernel and other components are owned by third parties close to Hyperion Entertainment), rather than a mere license.

Mr. Robert Trevor Dickinson's A-EON Technology Ltd., among others, was rewarded with a "worldwide, perpetual, royalty free licence to use the AmigaOne, AmigaOS and Boing Ball trademarks and trade names granted under sub-license from Hyperion" [244]. As British Amiga developer Mr. Stephen Jones wrote in a congratulatory message [315] to Hyperion Entertainment's Mr. Ben Hermans: "Trevor tells me you are good people to have owning the ship now." The "robbery of the AmigaOS" [239] was complete.

In 2009, Hyperion Entertainment VOF was converted into a Limited Liability Cooperative Company (CVBA) in spite of having accumulated debts amounting to more than 300,000 euro, and thus not meeting the minimum capital requirements to set up a CVBA.

In 2015, Hyperion Entertainment was declared bankrupt [233] upon request of the tax collection agency. After it eventually filed its accounts for fiscal years 2015, it emerged that its debt had risen to more than half a million euro [257][261].

The rights granted to Hyperion Entertainment under the 2009 settlement agreement covered AmigaOS 4 and the Amiga trademarks "Solely for the purposes of marketing, distributing and making available AmigaOS 4 and any hardware required or desired to operate with AmigaOS 4". While originally embracing this wording also in its 2009 press release, Hyperion later started to engage in a "rights creep".

Between December 2016 and May 2017, Mr. Ben Hermans, representing his law firm Monard Law on behalf of his company Hyperion Entertainment CVBA, filed to register its competitor Cloanto's "Amiga Forever" mark [274] as its own with the European Union Intellectual Property Office [258][259].

Probably driven by the desolate state of its accounts, and with free legal services as Hyperion Entertainment's only notable asset, this move was seen by some in the Amiga community as overly aggressive [239], as it was increasingly meeting the definitions of conflict of interest and bad faith trademark filing, if not altogether legal abuse. The same discussion threads [239] also mentioned a tale of forgeries, blackmail, secret contracts and large cash payments, also backed by audio recordings [268] which were later confirmed in an article in the Amiga Future publication [278].

Comments and details that emerged in the discussion threads [239][268][295], and which were later confirmed from other sources, include:

• • "Inventing an enemy to distract from internal problems is a timeless tactic used by hype-politicians everywhere! So Hype-rion and its owners are unable to repay their debt, and are positioning Cloanto as the new threat (Why? What changed?), as if Hype-rion wasn't its own worst enemy. For Hype-rion to register the 'Amiga Forever' trademark, only to annoy Cloanto who has been working on Amiga Forever since 1996, sets new standards for 'playing dirty' in the Amiga community. Shame on Hype-rion and/or it's lawyer-owner (formerly a director, still acting as one... maybe somebody should report him to the Brussels Bar for this violation, for the conflict of interest, and for his legal abuse tactics?)"

  • "Hyperion's attorney-owner Ben Hermans constructed an aggression that previously didn't exist and that nobody else wanted, but which can only be resolved by legal means. In doing so, he wants not only Amiga Inc. and Cloanto, but his own developer-'partners', to bleed through the nose. They may have ousted him as a director in December, yet now more than ever Hyperion is a company controlled by lawyers... I feel very sorry for them!"

  • "Ben Hermans appropriates funds intended for A-EON to purchase CPUs. Then he sends Trevor forged bank statements, showing that the money is still there. Then Trevor and Tony (his other partner) become suspicious and go to the bank, tell the director they are A-EON shareholders, and the director lets them read the computer screen showing all the transactions where Ben took the money out of the account (contrary to the forged statements). That is when they make Ben sign the document with the 'transfer to A-EON UK (without Ben)' and 'free everything' clauses (as admitted by Trevor in the interview to Generation Amiga [244]), threatening Ben's job as a lawyer. A variation of the story involves Ben driving Trevor to the bank, but intentionally getting lost in the woods in order to arrive after closing hours. Yet another one involves Ben drunk in a taxi, unable to get out."

  • "For years, lawyer-owned contract house Hyperion Entertainment tricked Amiga developers into signing promises [e.g.'NDAs'] that were all but customary, limiting their future options. It registered the trademarks of its competitors, and appears to be in breach of the settlement agreement with the Amiga companies. Trying to get away with it once again (like the previous time, when it had been paid for the OS4 work, did not deliver, and sued the Amiga companies while their owner was dying of cancer), Hyperion sued all its competitors, probably hoping for another convenient settlement. Once again, these Amiga abuses are being funded by Trevor Dickinson's oil money (for Hyperion would otherwise be untenable as a company), and we are turning a blind eye to this too, because we so badly want to believe that there might be some good parts in all of this."

  • "That's a true story. Simon Archer had just lent Ben Hermans 10,000 UK Pounds in cash. Hermans & partners (A-EON Belgium) then spent the evening celebrating with Champagne after signing the AmigaOne X1000 agreement. After they took a cab ride home, Hermans was so intoxicated that he fainted. He had to be dragged out by Dickinson and the others. Hermans even left the hard-earned cash in the cab. Lots of studies on alcohol and sociopaths. Fits quite a pattern. This is the person we are allowing to set friend against friend, leaving bitterness and debt as the only things that increase with the years."

  • "It's finally time for Hyperion to self destruct. That would have happened a lot sooner, had Trevor Dickinsons not thrown so much of his 'PetroDollars' money at them to finance Ben Hermans' frivolous lawsuits against Amiga, while taking advantage of Pentti Kouri's death, which forced Amiga to settle. Dickinson and Hyperion fueled years of anger and hate in our community and destroyed the lives, livelihoods and families of Amiga shareholders like Bill McEwen and Vince Pfeifer (who fell ill in 2009 and ultimately died of this). By promising and never delivering low end PowerPC, Dickinson killed the hardware market. By taking OS4 first away from Amiga and then away from Hyperion, Dickinson killed the software market. Now he is writing a book about Amiga vampires? If only mirrors worked for vampires..."

  • "There are probably no fools anymore who want to be controlled by Ben, while he doing dirty games with everyone. Things will move faster and better forward only when Ben leaves us. At the moment and Timoty, and Costel, and Benny, all stop working and helping him. And while Ben doesn't want to sell Hyperion to someone else, he will try to find other fools/slaves who will do work for him for free, while he will sue and lie to everyone. I do not know when he will realize it is time to sold it out all. Probably he can sit on those copyrights forever for no reassons. Damn, how some of us love that amigaos4 crap, that we are even ok with persons without decent morale to control the things and helping such ppls for free."

On October 12, 2017, Hyperion Entertainment had its business license revoked [241] for failing to file accounts for three or more consecutive years (2009-2016), and was radiated [242][263][264] from the Belgian business registry.

While it is in this "radiated" status, it is a criminal offense for a Belgian company to engage in a trade business, and the entity is further not allowed to file any lawsuits [263].

When it already was in this status, Hyperion Entertainment met with Cloanto at the Amiga32 event in Neuss (Germany), and reportedly threatened various legal actions [266].

In 2018, in spite of not being duly registered in the Belgian Corporate Register [265][263] and thus not meeting the criteria to file a lawsuit, Hyperion Entertainment started a new series of lawsuits against various Amiga parties (Amiga Delaware, Amino aka Amiga Washington, ITEC, Cloanto).

Although Hyperion Entertainment later filed its accounts for fiscal years 2015, 2016 and 2017 [257][261][279], as of this writing (March 2019) it has yet to file accounts for 2009-2014. The 2015-2017 filings further revealed how the debt kept increasing by more than 40,000 euro per year. According to the Belgian Companies Code, which sets a minimum requirement of 6,200 euro for the net assets of a CVBA, Hyperion Entertainment CVBA remains an entity that should not have been formed in the first place, and which could be judicially dissolved at any time by a public prosecutor or by an interested party.

On May 25, 2018, Cloanto filed a response [260] which includes an interesting analysis of several aspects of the 2009 Amiga-Hyperion Entertainment settlement agreement. Additional responses were filed by Cloanto on July 23, 2018 [262][265] and August 21, 2018 [270], by Amiga Washington on August 21, 2018 [269], by Amiga Delaware on October 26, 2018 [274], by ITEC on November 7, 2018 [275] and again by all four Amiga parties on July 2, 2019 [287].

On June 12, 2019, the Amiga parties filed an expert report [283] by Paul C. Clements, the author of the definition of "software architecture" used in the 2009 Amiga-Hyperion Entertainment settlement agreement.

An insider source described the situation as "From what we can see, one can only conclude [that Hyperion Entertainment is going] for no-less than total control of the Amiga-ecosystem. At all cost... Given their failure to deliver, that's the only option they have left to remain somewhat relevant, but I think, and I think we agree, they're basically destroying whatever is left, even if they win all these expensive litigations."

On May 8, 2019, following the acquisition of the Amiga assets, C-A Acquisition Corp. joined the legal case [281]. In doing so, it renewed the stance of the Amiga parties: "Rather than accept the reasonable limitations imposed on it by the Settlement Agreement, and deeply in debt, Hyperion embarked on an unlawful and tortious course of action to claim for itself the right to do anything it wanted with Amiga, Inc.'s intellectual property... unlicensed use of AMIGA-related marks... and filing applications and obtaining registrations of Amiga, Inc.'s trademarks. In further acts of bad faith, Belgian lawyer Benjamin 'Ben' Hermans, the primary owner of Hyperion, used his law office, Monard Law, to obtain for his company fraudulent registrations for Cloanto's AMIGA FOREVER trademark. Hyperion has never used that mark." It was later claimed [284] that this contributed to Mr. Ben Hermans and Monard Law parting ways a few weeks later.

As part of the new proceedings, former Amiga, Inc. president Mr. Bill McEwen testified [282] about the intent of the parties who settled in 2009: "The genesis of the relationship between Hyperion's predecessor and Amiga, Inc. was for the sole purpose of developing the Amiga operating system for the Power PC platform, which was believed at the time to be the next generation of computers. Throughout the strained relationship between Hyperion's predecessor and Amiga, Inc., and Hyperion's consistent failure to deliver the operating system for which it was contracted to build (i.e., AmigaOS 4.0), and up to and including the 2009 Settlement Agreement, it was always understood by the parties that Hyperion's use of the Amiga copyrights and trademarks was limited to the Power PC platform."

Hyperion Entertainment's own 2009 press release defining the settlement in terms of OS4 was brought up [296] as further evidence of the original intent of the parties: "As part of the settlement agreement, the Amiga Parties acknowledge that Hyperion is the sole owner of AmigaOS 4 without prejudice to any third party rights. Within the framework of the settlement agreement Hyperion is granted an exclusive, perpetual, worldwide right to AmigaOS 3.1 in order to use, develop, modify, commercialize, distribute and market AmigaOS 4.x (and subsequent versions of AmigaOS including without limitation AmigaOS 5)..."

As a Hyperion Entertainment insider commented in a forum [288], "The core business of Hyperion today (their only business, judging by the financial books) is actually battling legal lawsuits against Amiga... Ben Hermans has ALWAYS been Hyperion regardless of all the legal smokescreens thrown up over the past few years... I called the bluff the last time [Ben Hermans] 'resigned' as a director (in practice he never stopped making director decisions, including initiating the legal conflict against Cloanto)."

More details to be added.

Observations on the Hyperion Entertainment-Amiga Case

At the contractually agreed [132] specifications and costs, the project for the porting of the Amiga operating system to the PowerPC architecture was a credible stopgap effort do deliver a moderately newer operating system to a modest community of Amiga users that was anxious to use something new, while Amiga Washington kept working on Amiga DE (based on the much newer Tao Elate/Intent operating system architecture).

The initial cost estimate (and the amount of the buyback clause) appears to truthfully reflect the higher end of amounts that were common in the Amiga market. To better understand actual sales volumes (as per a variety of 2007-2009 forum posts), once AmigaOS 4 was complete, it was produced in quantities of a few 100 units at a time (probably batches of 500), whereas the unofficial AmigaOne PowerPC-based successor named "Sam" by ACube Systems srl was produced in lots of 50 units at a time. Years later, it seemed hard for some to believe that an operating system could be written or sold for $25,000, but we believe that for the simple port (not a new operating system) that this was meant to be, it was a generous amount that made all parties happy. For other operating systems, for example Linux, ports from one CPU to another (including 68K and PowerPC Amiga systems) were customarily done as a community effort at no charge.

Things became more complex when Hyperion Entertainment was unable to obtain the full 3.9 source code that it was hoping to base some of its work on, and had to limit itself to the version 3.1 code. However, this was not unexpected, as the original porting agreement itself stated that "Changes made after as 3.1... There might be license issues involved with this" [132].

The first 4.0 release was originally planned as a port from one CPU to another, without adding new features (Mr. Fleecy Moss deposition: "The goal of this development was to move the Amiga as from the more antiquated 68k processor and custom chipset to a state of the art, PowerPC ('PPC')-based processor" [133]). Instead, during development, a number of new features were added by Hyperion Entertainment, which delayed the initial release.

On the legal side, during the AmigaOS 4 project, Amiga Washington found itself in need of transferring rights for the "Classic" Amiga OS (which Hyperion Entertainment was basing its work on) to the new Amiga Delaware entity, apparently for the prime reason of protecting this asset from the Thendic/Genesi vs. Amiga [21] litigation, but possibly also in a shift of control between shareholders. Thendic/Genesi were supporting a competing Amiga-inspired operating system, named MorphOS.

The original Amiga-Hyperion Entertainment contract [132] for AmigaOS 4 was from 2001, whereas on March 12, 2004 Amiga Washington stated [22] that on April 24, 2003, it had transferred the Amiga OS to Amiga Delaware (via ITEC LLC). This sequence of events was not considered credible by the inquisitive Amiga community, because it meant that for almost one year the "Amiga" company kept silent, or otherwise pretending to do business as usual, including negotiations and references concerning AmigaOS 4 [32] up to early 2004. On the other hand, Hyperion Entertainment itself had claimed to have entered a new contract with ITEC LLC [134] on the same date of April 24, 2003, thus accepting and endorsing the Amiga Washington-ITEC agreements.

Mr. Ben Hermans not only was Hyperion Entertainment's founder, managing partner, majority shareholder and juggling attorney and director roles, but as part of a proceeding against Thendic/Genesi to "quash MorphOS" he had also provided legal services to the very clients his own company would later sue, i.e. KMOS aka Amiga Delaware, Amino aka Amiga Washington and ITEC [135]. On March 12, 2004, his partner Mr. Evert Carton also testified in support of Amiga Washington [136].

The Amiga companies terminated the AmigaOS porting agreement with Hyperion Entertainment on November 21, 2006 [118].

As Amiga Delaware turned against Hyperion Entertainment [104], Hyperion Entertainment appeared to express surprise [137] at the sequence of events it had previously accepted [134]: "Subsequent developments in this case have only strengthened the evidence supporting the claim that ITEC engaged in the fraudulent conveyance of Amiga Washington's assets, first from Amiga Washington to ITEC, and then from ITEC to KMOS/Amiga Delaware, and that those acts damaged both Hyperion Entertainment and other creditors here in Washington, where Amiga Washington's assets were located."

In the eyes of the public, Amiga Delaware (the successor of Amiga Washington) further repositioned the AmigaOS 4 project, which had gained importance after it was found out [62] that Amiga Delaware had no rights over Amiga DE, yet the company had been valued $87 million for technology that in its documented description [60] could originally only match Amiga DE. Unsubstantiated claims whereby phones powered by "AmigaOS 4" were expected to sell more devices than iPhones [78] may be better understood from this perspective, and were not part of the initial plan [132].

At the same time, the Amiga community observed with passion how Hyperion Entertainment's lawyer-owners aggressively exploited the move from Washington to Delaware (which Hyperion Entertainment had previously accepted), using it to further attack the Amiga companies, as if the claim of the missing $250 payment was not sufficient to win or settle the case to Hyperion Entertainment's advantage.

Third-Party Opinions

Assorted opinions and recollections:

• • 2001-06-04 Mr. Bill McEwen Interview (PLANETamiga) [192]

  • 2003-05-01 Recap by Mr. Bolton Peck (ann.lu, post 32) [103]

  • 2003-08-07 Deposition (partial) by Mr. Bill McEwen (Thendic vs. Amiga) [61]

  • 2003-11-21 Reply by Thendic, Emails by Mr. Bill McEwen (Thendic vs. Amiga) [168]

  • 2004-03-16 Amiga, Inc. without Amiga OS (Heise.de, German) [34]

  • 2006-05-20 Analysis by Mr. Olaf Barthel [169]

  • 2006-10-18 Amiga vs. Hare Recap (ann.lu, Mr. Bolton Peck aka Tronman) [20]

  • 2007-04-17 Recap by Mr. Bolton Peck (amiga.org) [10]

  • 2007-05-01 AmigaWorld.net thread ("frustration and ego") [170]

  • 2007-05-20 Timeline of Events (merlancia.us) [171]

  • 2007-05-21 Memorandum by Hyperion Entertainment (Amiga vs. Hyperion Entertainment) [212]

  • 2007-05-31 Motion by Amiga (Amiga vs. Hyperion Entertainment) [172]

  • 2007-06-11 Recap and Order by Judge Ricardo Martinez (Amiga vs. Hyperion Entertainment) [173]

  • 2007-06-13 Answer by Hyperion Entertainment (Amiga vs. Hyperion Entertainment) [174]

  • 2007-11-26 Memorandum by Hyperion Entertainment (Amiga vs. Hyperion Entertainment) [137]

  • 2007-12-07 Opposition by Hyperion Entertainment (USPTO) [139]

  • 2007-12-18 Memorandum by Hyperion Entertainment (Amiga vs. Hyperion Entertainment) [175]

  • 2008-01-08 Memorandum by Hyperion Entertainment (Amiga vs. Hyperion Entertainment) [176]

  • 2008-01-17 Order by Judge Ricardo Martinez ("[troubling inter-relationships]") [177]

  • 2008-02-19 Declaration by Hyperion Entertainment (Amiga vs. Hyperion Entertainment) [211]

  • 2008-06-17 Answer by Hyperion Entertainment (Amiga vs. Hyperion Entertainment) [178]

  • 2008-07-21 Memorandum by Hyperion Entertainment (Amiga vs. Hyperion Entertainment) [179]

  • 2009-12-11 Amiga Delaware and Hyperion Entertainment Settlement [138]

  • 2019-06-12 Paul C. Clements Expert Report [283]

About This Research

Thank you to all who submitted materials. To our knowledge, all documents were obtained from public sources. We also received some more private files, but many of these have not (yet) been published.

There might be other inconsistencies in the documents contained here that have so far passed unnoticed.

Another thing that might be interesting is to create social graphs of the main Amiga community sites, analyzing the numbers and trends of its active users. For years, Amiga "trade shows" like AmiWest have been attended by fewer than 50 visitors over the course of two days. "The last time I visited, it was a room that felt empty and had more exhibitors than attendees", reported a source. Our estimate is that there are 50-200 people worldwide who are extremely interested in Amiga and contribute to a majority of posts, checking in every day on one or more sites. For them, Amiga is between a hobby and an obsession. These members are obviously technically skilled, knowing the Amiga history and its internals quite well, leading to a constant evolution of posts. However, can a few dozen users making noise justify millions of dollars in investments and expenses?

Note: Amiga OS, Amiga DE and Amiga Anywhere can also be found spelled as AmigaOS, AmigaDE and AmigaAnywhere (no spaces). Generally, the older 1.x, 2.x and 3.x versions were referred to as "Amiga OS" with a space (Cloanto however uses the name "Workbench"), and the newer 4.x as "AmigaOS" without the space.

If you would like to help: sotheworldmayknow@gmail.com (we get a lot of spam, so please include "Amiga" in the message). On Twitter: @amigadocuments.