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TiVo vs. Echostar Court Case: Post Hearing Discussion

Discussion in 'Legislative and Regulatory Issues' started by Tom Robertson, Feb 17, 2009.

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  1. Mar 1, 2009 #721 of 1468
    James Long

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    Three opinions (one stated twice) and one fact. :D

    The court would not have spent the better part of the last year (since May) dealing with the issue if there was not a question that those two statements regarding E* might have changed.
     
  2. Mar 1, 2009 #722 of 1468
    Sterling

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    Funny...

    Regardless, If the courts actually devoted more than a few hours when it got around to it then this case it would have been over long ago. Sad actually.
     
  3. Mar 1, 2009 #723 of 1468
    jacmyoung

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    Not to mention that wasn't the answer to my question at all.

    How about I answer that question first and others can feel free to disagree.

    The reason TiVo had devoted some time to try to point out E* might not have clear record to prove exactly when their DVRs had stopped using the old software, between 10/06 and 05/07, is that there is a good possibility that the judge would agree with E* that the new design might no longer infringe.

    In such case, TiVo would want to point out that most of those DVRs were probably updated close to 05/07, rather 10/06, therefore had continued to use the old software for longer time than E* would like to claim, and therefore had continued to infringe longer than E* would like to claim.

    And as such TiVo can get most damages out of E* for that period of time when most of the DVRs still used the old software, and therefore continued to infringe.
     
  4. Mar 1, 2009 #724 of 1468
    jacmyoung

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    So it is sad the court had basically screwed it up? If so can we really be sure the court will not screw it up again?:)
     
  5. Mar 1, 2009 #725 of 1468
    scooper

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    I'm sure if Tivo feels the wrong decision was reached for the wrong reasons, that they will file an appeal. They may file one anyway if they feel it was the wrong decision.
     
  6. Mar 2, 2009 #726 of 1468
    nobody99

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    Jacmyoung, I offer you this information strictly as my opinion, and I'm really not going to debate things again for the millionth time. I am just expressing my viewpoint.

    I have no idea if they still infringe, and I personally think it is preposterous for us to even try to figure that out.

    So in a best-case scenario for DISH (they don't infringe, I say it's 50-50% chance), I'm interested in the outcome for TiVo's financial future. I completely agree with the idea that KSM would mean TiVo needs to bring a new suit against DISH if they are more than colorably different.

    So that leaves us with the four million DVRs that were expressly adjudicated. Here's a case where KSM certainly does not apply:

    In my view, DISH has missed numerous opportunities to have the injunction modified to specifically allow a workaround to be downloaded to the already-adjudicated receivers. Failing that, they should have gone to the court and told the court that a workaround had been downloaded and it no longer infringed. But it did neither of these things. In my view DISH acted, frankly, recklessly.

    So let's assume that in a second best-case scenario for DISH, Judge Folsom says that he won't hold them in contempt (an outcome I feel is highly unlikely...I give this a 10% chance). Even in this case, DISH will be liable for infringement through the date on which the new software was installed.

    Again, DISH should have had a bullet-proof method of capturing this information. It should be able to go into court with a minute-by-minute accounting of when each upgrade occurred. Not because they have some legal obligation to do so, but because it would have been a prudent thing to do. Combine it with the fact that they referenced messages boards (redacted), it sounds like it's just amateur-hour operation.

    When Judge Folsom calculates damages, how does he determine when infringement ended? James Long has suggested "add a month or two" but then you are talking an extra $20 - 50 million. Would you be so cavalier with your company's money that $20 million was not worth trying to save?

    There has also been speculation that DISH knows full well that it still infringes, and it's just going to wait this out until the bitter end. If you know you infringe, why bother capturing all this information. If you are saving $5 million a month in DVR licensing fees, and you settle five minutes before the decision, you've now saved $120 million over two years as this has dragged on.

    Folsom's chamber meeting with each side's legal team, Ergen, and Rogers sure made it sound like he wants the two sides to settle, but it also sounds like DISH will be hurt more by a decision than TiVo.
     
  7. Mar 2, 2009 #727 of 1468
    Sterling

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    Absolutely correct...

    This is not rocket science. Store a date/time stamp. (File create date for example) Retrieve the date/time stamp. If E* has the power to turn off customers when they don't pay then they have the power to retrieve the information. Even if the retrieval has to become something as non-technical as calling the customer by phone or making the customer call in to an 800 number.


    Instead of Agreeing with Nobody99's quote above this is offered as a rebutal.


    That not an effective argument. Just spreading FUD.
     
  8. Mar 2, 2009 #728 of 1468
    nobody99

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    [Moderator note: responses to a deleted post were redacted.]

    Do you know the terms under which TiVo's attorney was willing to settle? $3 a box maybe? I'd be anxious in settling too on those terms.
     
  9. Mar 2, 2009 #729 of 1468
    jacmyoung

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    I offered my answer to the question above, and asked if others may try to disagree.

    You responded in disagreement, but in my view only the above quote had some to do with your disagreement with my answer, the rest are not related to the answer to my question.

    Let me respond to your above quote then:

    If Charlie is willing to risk paying $20M more, what are you going to do about it? It's his money. He risked paying $104M in the past, did he settle?
     
  10. Mar 2, 2009 #730 of 1468
    jacmyoung

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    Again, if Charlie is not anxious to settle under any condition, only wants to clear his name first, can you blame him?

    He has been called an infringer, a thief, a lier, that his engineers were clueless, only knew how to copy, his so called new design was not possible, no way and no how. And his lawyers were useless, only knew how to lose his case, oh really?

    And this much was at least implied by TiVo in the very public eye.

    But he has so far managed to do at least three things that may clear his name:

    1) His new design may no longer infringe, therefore he is not in violation.
    2) TiVo's very patent may be invalidated due to obviousness by prior art.
    3) He had filed a suit in the DE court to ask the court to find his new design non-infringing. That case is still pending, presumably to wait for the outcome of this case.

    There is a long way to go even from here on.

    What would you do in such situation, do you not want to clear your name too, especially if you have more than enough resources to do so?
     
  11. Mar 2, 2009 #731 of 1468
    Herdfan

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    Teays...
    Is there any way that E* can be found in contempt (because they did not follow the court order as written) and also be found to no longer infringe?

    If so, what remedies would the judge have to deal with this?
     
  12. Mar 2, 2009 #732 of 1468
    scooper

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    No infringement = no contempt

     
  13. Mar 2, 2009 #733 of 1468
    jacmyoung

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    And let me go a little further to say that IMHO, it shows Charlie's personality.

    He seems a person not only have faith in himself, but have faith in his men/women, especially after those men had initially "screwed it up" for him.

    After the initial loss to TiVo, he continued to use the same lawyers to win the next Forgent case. Now his engineers had developed their own new DVR technology, the same engineers that might have copied TiVo's work before.

    Now his men/women also get a chance to clear their names for themselves, all because Charlie is willing to stick with them.

    Is anyone not able to see at least the slightest positive light in this?
     
  14. Mar 2, 2009 #734 of 1468
    nobody99

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    Oh, I would guess that there are probably tens of thousands of shareholders who would disagree that it's "his money."
     
  15. Mar 2, 2009 #735 of 1468
    jacmyoung

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    He and his partner own what 80%+ stake in the companies? Yes it is his money to win and lose.
     
  16. Mar 2, 2009 #736 of 1468
    nobody99

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    Actually, he's a proven infringer.

    An infringer is a thief, so yes, he's a proven thief.

    Not sure where that comes from. Has he been called a liar on message boards? Sure. But I hope you are not suggesting that he took this suit all the way to the end (risking a lot of the company's money) because a handful of people called him a liar on a few message boards.

    I don't remember anyone ever once alleging that his engineers were "clueless." Working for a conceited boss, yes. Clueless, probably not.

    Not sure where you saw that either.

    So you are saying that TiVo intentionally implied that DISH's engineers were clueless and its lawyers useless? Wow, that's an amazin stretch of the imagination.


    I will remind you again that the goal is not to clear his name. He has a fiduciary responsibility to his shareholders, not to his name.

    Clearing my name wouldn't have even entered the equation. My responsibility to shareholders and customers would have been my first and only concerns.
     
  17. Mar 2, 2009 #737 of 1468
    jacmyoung

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    (redacted)

    If he was not trying to clear his name, why do you think he would file a lawsuit in the DE court to ask the court to declare his new design not infringing? A main reason as the filing stated why it was filed was because TiVo continued to claim in the public that the new design was still an infringement, without TiVo even had a chance to review the source code.

    [Moderator example] Dose that not appear [strike]to you[/strike] that he wanted to clear his name?

    So what if he believes clearing his name and the names of his people is more important than making some money for his shareholders? [Moderator note: redacted]
     
  18. Mar 2, 2009 #738 of 1468
    nobody99

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    Your last post:

    An earlier post

    [Moderator example] Surely [strike]you can see[/strike] the difference is clear.
     
  19. Mar 2, 2009 #739 of 1468
    Tom Robertson

    Tom Robertson Lifetime Achiever DBSTalk Club

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    [Moderator Note]
    This thread is closed for maintenance for a day. Please come back tomorrow with a refreshed point of view, sunnier outlook, and we'll have cleaned the pond for you.

    I am very serious about the use of "You" and other implied commentary about others.

    If you have any questions, please PM me. I'm happy to explain what I can.

    Thank you for understanding,
    Tom

    One other note
    If an offending post stays for more than a few minutes does not give one leave to respond. While we are watching this thread closely, we don't read every post the moment it hits. As a volunteer staff, we too have lives and other threads to enjoy. So do not respond in public.
     
  20. Mar 3, 2009 #740 of 1468
    Tom Robertson

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    Good morning! Welcome back.

    Big news yesterday with the TiVo conference call, did the case get covered?

    Cheers,
    Tom
     
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