Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 1 of 24 Amiga Inc v. Hyperion VOF Doc. 26 I 2 a J 4 5 6 8 LINITEDSTATES DISTRICT COURT WESTERNDISTRICT OF WASHINGTONAT SEATTLE 9 l0 AMIGA, INC., a Delawarecorporation, No.07-0631-RSM ll DECLARATIONOF EVERT CARTON 12 V. IN OPPOSITIONTO AMIGA DELAWARE'SMOTION FOR l3 HYPERIONVOF, a Belgiancorporation, PRELIMINARY INJUNCTION 14 Defendant. l5 t6 Evert Carton,under penalty of perjury, declaresand statesas follows: t7 1. I am ManagingPartner of Hyperion VOF, a softwarecompany located in 18 Belgium.I currentlyreside in Belgium.I am Belgianand US citizen.l am overthe ageof 18, t9 and I am competentto testify. 20 2. I arn36 yearsof age,born 24. October.1970. in Durham.NC. I grew up in 2l Belgium. 22 3 I graduatedas a MechanicalEngineer. I haveworked in variousIT positionsin z) the pharmaceutical(clinical trial setupand instrumentinterfaces) and retail sector 24 (programmingcustom IDMS databaseapplications in PLll on Amdahl mainframecomputers). 25 I have worked as an independentIT-consultant through Hyperion, in the steel(business 26 Lew OrprcESoF - DECLARATION OF EVERT CARTON I Wrr,rmrraA. KrNseL,PLLC MARKET PLACE TOWF-R 2015 First Avenue. Suite,140 SEATTLE,WASHINGTON 98I ]I | 206)706-8 I 48 Dockets.Justia.com Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 2 of 24 I intelligence)and telecom-industry (business intelligence and Web-technologies). Hyperion has 2 currently secureda position for me as an independentcontractor working as a system/software a J architectat the largestBelgian mobile telecommunicationsoperator. 4 4. My skillsrange from basicknowledge to proficientlevel in several 5 programminglanguages (C, g++, Java.Python, Perl, SAS ...). I workedon differentoperating 6 environments,ranging from (mainly)Unix systems(HP-UX. Solaris/SunOS,Linux) to 7 mainframesystems. 8 5. I foundedHyperion VOF, betterknown as Hyperion Entertainment.in February 9 1999with Mr. Ben Hermans,whom I met duringmy collegeyears. Mr. Hemranslater opted to l0 pursuea legal career. I am to this dateManaging Partner at Hyperion.The company ll specializesin 3D graphicsand 3D driverdevelopment, firmware development for embedded l2 systems.IT consultingand the conversionof high quality entertainmentsoftware from 13 Windowsto nicheplatforms including Amiga, Linux (x86,PPC)and MacOS. I4 6. Basedon my generaleducational background, my experiencein the industry, t5 and rny specificknowledge of eventsrelated to Amiga, I havepersonal knowledge of the 16 mattersstated herein. t7 7. The "Amiga" line of computerswas launchedon the 23rd of July 1985 and 18 subsequentlyacquired and marketed by CommodoreBusiness Machines (CBM or Commodore 19 who had previouslydeveloped and marketedone of the most usefulcomputers of all time, the 20 Commodore64). 21 8. Prior to this computerswere aimed at a relativelylimited audience - theymight 22 be seriousbusiness machines with simpletext displays,or they might be gamesmachines with ZJ 24 crudegraphics, a few colors.basic sound and limited ability to do much beyondplaying games. 25 The Amiga wasan entirelydifferent machine with a far wider rangeof capabilities.Combining 26 the power of a businessmachine with market-leadingvideo and audio capability,the Amiga Lew OrnrcESoF - DECLARATION OF EVERT CARTON 2 WrllnuA. KrNssr-,PLLC MARKET PLACE TOWER 2025 First Alenue- Suite440 SEATTLE. WAST.IINGTON98 I 2 I (206)706-81,18 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 3 of 24 I was a hugely capableand flexible machineand introducedthe world to the conceptof 2 "multimedia". a J 9. The hardwareof the Amiga was basedon proprietarychipsets covered by 4 numerouspatents which handledgraphics and sound. Generalpulpose computing power was 5 deliveredby a Motorola68000 series (6SK) processor (CpU). 6 10. The Amiga operatingsystem or AmigaOS was designedfrom its inceptionas a 7 true multi-tasking,multi-media operating system. This combinationof tightly coupled 8 proprietaryhardware and software(AmigaOS) produced a very fast.powerful and easyto use 9 computingplatform. l0 l1 1l. In 1994Commodore Business Machines filed for bankruptcy. The then current t2 Amiga modelswere the low-endAmigal200 andthe high-endAmiga 4000T. Both machines 13 were still equippedwith proprietarychipsets developed in-house by Commodoreand powered 14 by Motorola68000 series CPU's runningat up to only 25 MHz (comparableto Intel's486 t5 cPU's). Thesemachines were bundled with Amiga os 3.0 or Amiga os 3.l. t6 12. Following the 1994bankruptcy the companyand its assetschanged from hand 17 to handwith subsequentacquisitions of the subsidiary"Amiga Technologies"by the German l8 companyEscom AG (1995-1996)and in 1997by the U.S. computermanufacturer Gateway l9 (2000) (NYSE:GTW). Neither Escomnor Gatewaymarketed any new Amiga hardwarealbeit 20 Escomsucceeded in restartingproduction of the existingmodels using left-over parts 21 manufacturedfor Commodore.During the Gatewayera only existingstock of unmodified 22 Amiga 1200'sand Amiga 4000produced by Escomwere sold. ZJ 24 13. In I 998 Amiga Inc. (at thattime a fully ownedsubsidiary of Gateway)entered 25 into an agreementwith the Germancompany Haage & PartnerGmbH (www.haage- 26 Lew OnErcESoF DECLARATION OF EVERT - CARTON 3 Wrllrelr A. KrNsel, pLLc MARKET PLACE TOWER 2025 FrrstAvenue. Suite440 SEATTLE. WASHINGTON 98 I 2 I c06)706-81,18 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 4 of 24 I partner'com)for the developmentof Amiga oS 3.5, the first updateof the Amigaos sincethe 2 demiseof Commodorein 1994. J 14. Under the agreementbetween Amiga Inc. and Haage& partner,Amiga was 4 requiredto pay an undisclosedbut sizeable upfront amountto Haage& partner. In 5 return, Haage& Partneracted as leaclcontractor for the developmentof 6 Amiga oS 3.5 and contracted with dozensof independent subcontractorsin order to produce the Amiga os 3.5 update. An example of one of thosecontracts with the independent 8 subcontractorsis attachedhereto as Exhibit1. 9 15' l0 Under the agreementwith Amiga Inc., partner Haage& was entitledto market and distributethe resulting ll Amiga os 3.5 softwareitself, partner with Haage& collectingall revenues l2 and with Amiga receivingonly a per unit royalty. pursuantto the agreements concluded l3 betweenHaage & Partnerand its subcontractors.said subcontractorssimilarly 14 received a per unit royalty from Haage& Partner usually with a minimum royalty guarantee. l5 Amiga os 3'5 wasreleased in octoberof 1998. There wasno directcontractual link between l6 the subcontractorsand Amisa. t7 16' In Decemberof 1999Gateway soldits Amiga subsidiariesto l8 a groupof venture capitalistsi'e' N'Y' basedInvisible Hand and Netventures (based 19 in Holland)for 4.5 million usD' Following the acquisition,the new management 20 of the company(with william McEwen as cEo and Barry Jon Moss as cro) immediatelyrefocused 21 the company,sstrategy and resourceson the softwaretechnology 22 frorn the u.K. basedcompany TAo (www.tao_ sroup'com)which was ZJ entirelyunrelated and incompatible with Amigaos andwhich to this 24 datestill servesas a deliveryplatform for Amiga'scontent for mobiledevices (largely games): 25 theAmigaDE and AmigaAnywhere products. 26 DECLARATION OF EVERTCARTON - 4 Lew OrnrcESoF WrrlmvA. Krrusnl, pLLc MARKETPLACE TOWER 2025Frrst Avenue, Suite :1.10 SEATTLE,WASHINGTON 98 I 2I (206)706_8148 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 5 of 24 1 17' In late 1999 andalready under the new management,Amiga enteredinto 2 anotheragreement with Haage & Partnerin order to developAmiga OS 3.9, anotherupdate of J the old Amigaos' The terms of the 1999agreement between Amiga aresimilar to thoseof the 4 1998agreement' As with Amiga oS 3.5.Amiga oS 3.9'snew functionalitylargely consisted 5 of materialslicensed from third party developers.once again.IJaage & partnerwas entitledto 6 marketand distribute Amiga - oS 3.9 itselfand collect all revenuesfrom saleswith a per unit royalty paymentto Amiga and Haage& Partner'sthird party suppliers 8 who had no direct contractuallink with Amiga. 9 l8' In orderto "appease 10 the loyal Amiga enthusiasts"(Moss. Declaration in support of the plaintiff, pat.7) in 2000 l1 Amiga decidedto contractdevelopment of Amiga oS 4.0 out to an outsideparty. Amiga OS 4.0 t2 would heraldthe switch away from the outdated6gK seriesof l3 MotorolacPU's which were limitedto 50-66MHz to the muchmore modern powerpc cpu,s t4 developedand marketed by IBM and Motorola/Freescaleand which until very recentlywere l5 alsoused by Apple in its line of computers.The PowerPCCpU's areRISC CpU,s (reduced I6 instructionset) which are entirelyincompatible with the Motorola68K seriesof CISC CpU,s t7 (complexinstruction set). l8 l9' Amiga OS 4'0 was initially intendedto run on third-partyadd-on hardware for t9 the Amiga 1200 andAmiga 3000/4000equipped with PowerpCCpU's which produced 20 was during the Gatewayera by the Germanhardware manufbcturer phase 21 5 (now defunct). Moreover,the British company 22 EyetechGroup Ltd. had,in the secondhalf of 2001,contracted with the Germancompany Escena z) GmbH to developand producenew powerpC equippedadd- on hardwarefor the Amiga n0a/4000, 24 subsequentlyreferred to as "the Amigaone A1200 and the AmigaOne44000" 25 respectively.AmigaOS 4.0 wasalso intended to run on this powerpC 26 hardwarewhich in effect could not be marketedwithout Amiga OS 4.0 as earlierversions of Lew OrrlcES oF DECLARATION OF EVERT CARTON - 5 WrllnruA. KrNsnr,,rLLC MARKET PLACE TOWER 2025 First Avenue, Suite.140 SEATTLE,WASHINGTON 98I2I (206)706_8