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TiVo vs Echostar ... Discussion leading to September 4th Hearing

Discussion in 'General DISH™ Discussion' started by Curtis52, May 17, 2008.

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  1. Jun 6, 2008 #1401 of 2549
    jacmyoung

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    As hard to believe as it may be, even if the hardware verdict was upheld, the software update would still be good enough because the hardware claims were actually dependent on the software claim. Tivo does not hold a patent on the hardware DISH DVRs are using.

    Most DVR hardware used by all companies at the time had the Broadcom design to accomodate Tivo's DVR software, but DISH was not violating Broadcom hardware design, only that when DISH infringed on Tivo's software, the same software also caused the hardware to infringe.

    Notice in DISH's filing they went into length to explain how the new software no longer uses the Broadcom chips and "switches"? That was to hammer away the idea that the hardware claims needed not to be brought back ever, because it became a foregone issue once the new software was downloaded.
     
  2. Jun 6, 2008 #1402 of 2549
    James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Club

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    Since Tivo pretty much ignored the hardware claims I've followed suit ... but the thought that Broadcom chips contain Tivo patented circuits/functions that are OK to use with Tivo licensed software but not OK to use with non-Tivo software crosses my mind.

    DISH not using the circuits/functions of the chip that would require Tivo's patent would be a hardware workaround. Just as effective as saying that DISH can continue using DVRs as receivers as long as the offending hardware in the receiver is not active.


    I am encouraged by the judge's order. There seems to be a window there. The pre-judgement that we have seen far too much of in this thread isn't coming from the court (or either party in this case). All possibilities are still open.
     
  3. Jun 6, 2008 #1403 of 2549
    nobody99

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    The main issue is that none of us can find any cases where existing products were ordered to be shut off. The "more than colorably" different standard seems to always have been used to allow a company to "try again" and not be punished too severely when trying to design around a patent.

    Read the injunction language again. It pretty clearly states the eight models (collectively the "Infringing Products") and other models not more than colorably different.

    Since there haven't been any cases that anyone can find where an injunction against existing, installed products, we're sort of in new territory. But anyone claiming that the "more than colorably different" standard applies to existing products is doing no more than the rest of us: speculating.
     
  4. Jun 6, 2008 #1404 of 2549
    jacmyoung

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    We have a few issues here.

    First one, Tivo wants the judge to clarify and rule on the "face of the injunction", meaning nothing like the uniformly agreed upon "colorable difference" test. Because the language of the injunction does land credibility to the "face of the injunction" argument. Tivo believes, like all Tivo fans, on such basis DISH is in contempt, but Tivo understands the judge must first offer his interpretation of his own injunction, so in the event the judge does not agree with the "face of the injunction" approach, Tivo asked to allow them to then seek limited discovery on the new software claims.

    DISH on the other hand obviously sticks to one thing only, the uniform "colorable difference" test applies to all contempt discussion. If the judge agrees with Tivo, he can (he has wide latitude) ignore the uniform "colorable difference" approach and find DISH in contempt merely based on the "face of the injunction". In that case, DISH will appeal, and during the appeal, DISH will be again sticking to the exact same approach, the "colorable difference" test, because it is the uniform standard in determining the contempt issue.

    At that time however, the appeals court will be on DISH's side, because as explained in the above text I quoted, while the district court's job is to "prohibit further infringement", the circuit court's job is to ensure uniformity during a contempt proceeding. Since the judge's contempt ruling would be unusual and not conforming to the uniform standard, the contempt ruling should be overturned.

    As far as DISH "ignoring" the injunction, if DISH did nothing, simply sat there and allowed the old software to continue, yes they would have had ignored the injunction. But they did do something, they did design a new software, BTW they spent over a year doing that, and downloaded it onto the DVRs, before the injunction went in full force. Therefore the argument can be made that DISH did not ignore the injunction.

    If the new software is again ruled to infringe at a later time, first off DISH will have to pay all the damages during the use of the new software, and be again faced with another injunction on the new software. DISH should still be able to try to workaround the Tivo patent. But notice that the justice will not be unserved, DISH will have to pay, damages plus interest, and at that time probably even Tivo's legal fees too, depending on the circumstances.
     
  5. Jun 6, 2008 #1405 of 2549
    jacmyoung

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    Since nobody99 has put me on his ignore list, he could not hear my newly discovered court procedural clarification. The mere fact to rule DISH in contempt on the face of the injunction, will be the first in the history (or something close to that), this ruling by definition moves away from uniformity, while the judge does not have to care for such uniformity, the appeals court must care, for it is the appeals court's job to ensure uniformity on contempt issues.

    The uniform approach on the contempt issue is the colorable difference test, because such test has been always used in ALL such contempt proceedings in the past.

    The natural deduction from it is the unprecedented contempt ruling will be overturned to maintain uniformity. I hope someone can quote me on this one so nobody99 can see it.
     
  6. Jun 6, 2008 #1406 of 2549
    phrelin

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    Hmmm. Well, I had to leave for a bit today. So 12 hours and 90+ posts have transpired since my last one on this thread.

    But my point is that while maybe some or all of the gains are ill-gotten and belong to TiVo, that is because the system/software/code "belonged" to TiVo. The boxes don't belong to TiVo and they don't inherently infringe. So why would anyone determine that "turning off the boxes" is the legally correct way to resolve the matter? Simply, the order should have been to remove the infringing code and send a check to TiVo. Since Dish says they replaced the infringing code, in that scenario the only decisions left to be made are (1) how much should the check be made out for and (2) does the replacement code infringe? Whether the boxes are on or off would be irrelevant.

    The problem with the current situation is that in the real world outside the courtroom, whether the boxes are on or off is irrelevant even if the current system/software/code is determined to be infringing. The infringing code can be removed and checks can be written.
     
  7. Jun 6, 2008 #1407 of 2549
    peak_reception

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    At first I was thinking that this order was simply a re-cap of the May 30th Status Meeting. It is, but there is some wording in there which could signal trouble for Echo. See in bold below:

    I doubt very much this (what I've highlighted in bold) is how Echo would like the issue framed. The language of the Permanent Injunction has nothing in it which encourages or allows Echo to comply with the spirit of the injunction by changing the software. In fact, the language is quite strict and explicit. There is nothing in there which says Echo can or should find a way to alter its infringing products so that they no longer infringe.

    Now, I know there are other good arguments made for why Echo should be allowed to do this. But the way Judge Folsom has framed things does not bode well for Echo. The language of the injunction works against Echo in every way possible. If that's the gold standard for this hearing then Echo is in serious trouble.
     
  8. Jun 6, 2008 #1408 of 2549
    kmill14

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    jacmyoung, you are ignoring the Judge's main reasoning for the injunction, which focused on the fact that monetary damages alone would not compensate TiVo. They lost significant revenue opportunities to E* because E* infringed on TiVo's own patent. They can't get those revenue opportunities back unless E* turns off all the products specified in the injunction.

    Why would the judge suddenly go against his own reasoning and allow for E* to repeatedly avoid this key issue?
     
  9. Jun 6, 2008 #1409 of 2549
    BobaBird

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    Read the order that came out of the 5/30 meeting, especially the part highlighted in post #1407. You will probably agree with peak_reception that that spells Trouble, but why would the judge entertain the possibility of complying with the spirit of his injunction if the full shut-down was the only remedy he would allow?

    The problem I see for Dish is that the injunction specifically said (paraphrasing) to shut down the reading/writing of TV data to the hard drive, period. Dish says they have shut down the infringing method, but the reading/writing otherwise continues same as before.

    It comes down to whether the judge intended to use the injunction to assess damages (which is already at least partly being handled separately) or to prevent further infringement. If the modified software truly is non-infringing, Dish has gone to a level of compliance maybe not seen before by altering existing product in the field.
     
  10. Jun 6, 2008 #1410 of 2549
    kmill14

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  11. Jun 6, 2008 #1411 of 2549
    TexasAg

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    That's interesting, I hadn't seen one like that. But it doesn't really help here. The lack of a "permissive design around" section in Tivo's injunction doesn't mean Echo can't implement a design around. If the court wanted to enjoin design-arounds, it would have specifically enjoined them, such as by specifically saying Echo couldn't download new software to the DVRs (and the court was aware of that possibility).

    As a general rule, whatever is not specifically enjoined can be done by Echo. The case jacmyoung posted earlier is a good example. An infringer couldn't be found in contempt for filing a patent application on a drug because the injunction never said they couldn't (even if the infringer acted in bad faith).

    When discussing whether to issue the injunction, the judge refers to the "availability of the infringing products" as harming Tivo. He refers to the "Defendants’ continued infringement" and says that Tivo "faces ongoing irreparable injury as Defendants’ infringement continues." He noted how "every day of Defendants’ infringement affects Plaintiff’s business." He noted how the public does not have a greater interest in allowing "Defendants’ customers to continue to use their infringing DVRs." He said "allowing the ongoing infringement is not within the public’s interest."

    Practically at every point in discussing the 4-point standard for injunctions, the judge says Tivo deserves the injunction because of continuing infringement by Echo.

    Something else for Echo to hang their hat on from the judge: "Defendants’ authorized retailers will still be able to sell and service Defendants’ non-infringing products."

    I'll also correct something I said yesterday - the court's order does not prevent them from applying the "more than colorably different" standard to Echo's new software. While the court referred to infringement, I'd expect Tivo to file its motion and Echo to respond and say the "more than colorably different" standard applies. The court is free at that point to say what the standard is. I had hoped that the court would do this before the 9/4 hearing, but it said it would do that at the 9/4 hearing. So basically, Tivo and Echo could either be looking at a quick resolution if the judge agrees with Tivo (likely followed by a lengthy appeal) or a lengthy resolution with discovery and a new mini-trial if the judge agrees with Echo (likely followed by a lengthy appeal) .

    Anyway, I have to go back to work today, so I'll have to check in less frequently.
    __________________
    My personal opinions are just that. Don't rely on them - I could be Charlie Ergen's pool boy.
     
  12. Jun 6, 2008 #1412 of 2549
    jacmyoung

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    Like TexasAg said, your interpretation of the judge's statement is incorrect, money alone will not be enough a remedy if the infringer is allowed to continue to infringe. Therefore there is a need for measure outside of monetary remedy to "prohibit further infringement."

    Which is also why the court has always allowed the infringer to modify the infringing products and continue as before, as long as the workaround is legitimate, the assumption is through legitimate workaround, continued infringement will stop, the goal of the injunction will have been achieved.
     
  13. Jun 6, 2008 #1413 of 2549
    jacmyoung

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    It all depends on how you want to look at it, as TexasAg said just because the injunction does not specify the design around is ok, which for the vast majority of the injunctions they do not anyway, does not mean it can not be done, in fact the law is clear, the infringer can not be prevented from doing something the injunction does not prohibit.

    But even if for argument sake you are correct, in this case the judge meant (even though he did not say so) not to allow design-around by DISH, it is clearly not conforming to the uniform standard that legitimate design-around is ok. And if you agree with the earlier paragraph I posted, that the appeals court's job is to ensure uniformity in contempt proceedings, the contempt ruling, if the judge should issue one, will have to be overturned, because it goes against the uniformed standard.

    Many of you believe the judge can make history, can go against uniformed trend, yes he can, nowhere in the law says he can not, because the judge is given wide latitude to ensure no further infringement may occur.

    But on appeal, the appeals court has a different job, its primary goal is to ensure uniformity, to ensure design-around is ok. Therefore a ruling that prohibits design-around should be overturned.
     
  14. Jun 6, 2008 #1414 of 2549
    Curtis52

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    It makes judges look bad if they don't listen to both sides before making a ruling.
     
  15. Jun 6, 2008 #1415 of 2549
    TBoneit

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    As an example, Many times In the computer field I've seen computer Motherboards that have the same model number. These same model numbers may require different bios upgrades. These same Motherboards with the same models have different hardware revisions. The different hardware revisions oftern determine what processor (CPU) can be used with them.

    I believe that echostar has used many different hardware configurations within the same model number DVR. There have been threads here in the past with regard to the VIP622 and different h/w revisions for example.
     
  16. Jun 6, 2008 #1416 of 2549
    TBoneit

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    If E* took apart the Tivo and had their software code as another message stated, Then they sure didn't use much of it did they. There is no resemblence between the User Interfaces or usage of other Tivo features such as the way they search, Guide, Suggestions and so on.
     
  17. Jun 6, 2008 #1417 of 2549
    clyde sauls

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    I am just wondering if Dish loses instead of turning off all the dvr function. Couldnt they reach agreement with tivo to download the tivo software into all the dish dvrs . Does anyone know whether that would work on not. Even tho replaytv doesnt manufacture hardware any longer. Couldnt DIsh reach agreement to download their software also. Would using replaytv software would it violate any tivo software?
     
  18. Jun 6, 2008 #1418 of 2549
    TBoneit

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    Does anyone except Tivo and maybe the Judge think a user would Buy a Tivo and pay for a lifetime sub or pay monthly fees as well as having to have two boxes to equal one DVR?

    Or to put it another way..... If E* hadn't had the Dishplayer 7x00 models and D* hadn't had a DVR also then a DVR desiring customer would have done as I did gotten a receiver and a Tivo. As soon as a DVR where it was all integrated into one box and had better quality became available I was all over it. if E* hadn't had its DVR then I'd have gotten a DVR from D* when they came available. I wouldn't have kept buying More Tivos and paying those fees. The next point is if I'd had to go to D* I would have gotten the MS DVR from them not a DirecTivo as I didn't and still don't like the Tivo interface when comparing it to the Dishplayer (1st gen Ultimate Tv) or the 5xx or 721 or VIP622 DVRs. When it was all I had I liked it, as soon as I saw better then ....

    First thing I did with the Tivo was turn off those annoying noises and suggestions.

    Biottom line Satellite users would have not bought Tivos once there was a better alternative. Better meaning the D* & E* boxes not needed to re-encode the video like a Tivo Stand Alone has to do.

    AFAIK it gets worse for Tivo with HD taking over. Their HD Tivos with the cable card are being rendered useless. They have no way to record the HD signal form a HD Box from E* or D* and thus will only appeal to OTA only users that can also afford the monthly fees. At which point if Cable goes past their door they may as well sub to basic and a DVR.

    Bottom line Tivo appears to me to be a company whose time has come and gone as far as Tivo hardware is concerned. They need to start thinking reasonable License fees to every provider since the main value is really the name Tivo that could be put on the box as brand recognition. The actual patents have been rendered, IMHO, Near valueless by the workarounds developed by other companies.

    Bottom Line the only Harm I see to Tivo is loss of licensing fees in the past. I do not see much harm in the future as they are being rendered irrelevent by the switch to HD.

    kmill14 said " They lost significant revenue opportunities to E* because E* infringed on TiVo's own patent. They can't get those revenue opportunities back unless E* turns off all the products specified in the injunction.

    Why would the judge suddenly go against his own reasoning and allow for E* to repeatedly avoid this key issue?"

    The revenue opportunities are not there as anyone could see. Between the D* DVRs, E*'s newer DVRs and the Cable companies DVRs, all of which will provide a better integrated DVR with no pain in the neck setup as needed by a Tivo to make it control somebody elses Box and a better quality picture their time is past except for the minmal worth of their IP. I say again minmal worth beyond the Tivo brand name recognition as there are workarounds that can and are being used.

    IMHO Tivo should have started with someone that would not defend to the end and built up some decisions in their favor before going after E*
     
  19. Jun 6, 2008 #1419 of 2549
    James Long

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    I'm not surprised you would have a negative interpretation ... but that quote actually SUPPORTS Echostar. The door is open for the court to rule that "the language of the Court’s Permanent Injunction allows EchoStar to comply with the spirit of the injunction by changing the software so that the products no longer infringe."

    Raising the question is the first step in getting the answer you want!

    BTW: Keep the text sizes down. It makes you look arrogant to make your text bigger than others.
     
  20. Jun 6, 2008 #1420 of 2549
    nobody99

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    Uh, you do know what a "cable card" is, right? You know what OTA is right?
     
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