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Tivo vs EchoStar ... September 4th Hearing (w/transcript)

Discussion in 'General DISH™ Discussion' started by James Long, Sep 4, 2008.

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  1. Sep 18, 2008 #901 of 1182
    nobody99

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    Curtis52 refuses to accept reality. He is wrong. These devices are already adjudicated, and they simply can't have DVR functions. He opines that they can, but that opinion is simply wrong. Don't confuse Curtis constant repetition as fact :)
     
  2. Sep 18, 2008 #902 of 1182
    Curtis52

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    I was talking about returning the original software but more generally, if there is only a colorable difference it might as well be no difference at all. Dish would be in contempt.
     
  3. Sep 18, 2008 #903 of 1182
    nobody99

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    Or, if it is writing television data to the hard disk, regardless of colorable difference, it should be held in contempt.
     
  4. Sep 18, 2008 #904 of 1182
    CuriousMark

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    General business climate and constant feature additions to any competing product pretty much guarantee that any new software would not be the original one. Since determination of colorable differences is always after the fact of the change, there appears to be very little reason for an infringer to not avoid infringement. As long as the infringer is willing to continue litigating, it appears they can go as long as they want. It is still looking a lot like a Monopoly get out of jail free card to me.

    It sounds like this general issue is not going to get solved by the courts. I think that the laws need to be either clarified or strengthened to prevent this kind of behavior in the first place.
     
  5. Sep 18, 2008 #905 of 1182
    CuriousMark

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    Oh I am not. I am approaching this from the policy viewpoint, not the lower level details of this one case. He may be wrong, but his opinion highlights a general issue of IP that I think needs fixing. Of course the courts cannot do that fixing. It will have to come from congress.
     
  6. Sep 18, 2008 #906 of 1182
    nobody99

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    I think that this could be easily handled by a Supreme or Appeals court decision that simply says that an adjudicated device remains subject to the injunction regardless of any change to avoid infringement. That way, it will be up to the original court to write the injunction in such a way that if the judge intends a get-out-of-jail card, he can write it into the injunction. That would (properly) allow the injured party to make its case for what metrics are used to judge infringement or non-infringement and what changes are allowed. They can argue it where it should be argued - the original court that hears the case.

    In this case, if Judge Folsom had actually intended to allow DISH to download new software and be off the hook, he should have written it into the injunction. It's already there for new products in the "sham" test :)
     
  7. Sep 18, 2008 #907 of 1182
    nobody99

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    Let me add something to my last post that illustrates why I think this is important.

    There are some documents that say something along the lines of "DISH concedes that it can, with a software download, disable the DVR functionality of the devices."

    The Judge allowed this, rather than recalling the product, so it wouldn't leave people without a receiver. But TiVo had every right to expect that the DVR functions would be effectively recalled and "destroyed."

    If no contempt is found, what DISH did was the equivalent of breaking into the warehouse were the "recalled" DVRs were stored, steal them, and return them to customers -- and then having the judge say, "oh, sounds good."

    TiVo, in retrospect, should have pushed for a physical recall.
     
  8. Sep 18, 2008 #908 of 1182
    CuriousMark

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    I agree with you there and with most of the above, I am just not sure the courts are up to it without legislative direction.
     
  9. Sep 18, 2008 #909 of 1182
    Greg Bimson

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    Which will finally bring me back to this...
    This is irrelevant. The reality is that I still have my computer, but I've updated it. And if there were an injunction on my computer changing the software does not change the fact that it is my computer.

    The reality is that millions still have active receivers found infringing, but they've been updated. And since there is an injunction, to disable active receivers found infringing, changing the software does not change the fact that those are active receivers found infringing.
    And Joe Blow's four year old 501 was found infringing but did not vanish, and certainly has DVR functionality.

    The reality is that there is not "one case law" that is similar to this; there are many pieces of case law that are applicable.

    And it all starts from the fact that when DISH/SATS appealed the case from Judge Folsom's court, the injunction was framed with infringement found on the entire device. Because some of the claims were reversed and remanded does not negate that two claims were upheld. That means the injunction stands as-is, since DISH/SATS did not challenge it.
     
  10. Sep 18, 2008 #910 of 1182
    jacmyoung

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    Actually this is allowed, except that they did not have to break into the warehouse, the warehouse will be their own to have received those recalled DVRs. I can cite you a few cases just that, after the recall, the infringer modified the products in the warehosue and then sent them back to the customers, just fine, as long as the modified products no longer infringed.

    TiVo did try that and was denied by the judge due to objection by DISH.

    As far as the discovery between DISH and TiVo, the point was not if TiVo initially thought the discovery was sufficient or not, they were not satisfied with that limited discovery, but the discovery did exist.

    The problem is in TiVo's final filing before the 9/4 hearing, they finally fully accepted the evidence, and made a conclusion of mere colorable difference based on the evidence. DISH used the exact same evidence to make an opposite conclusion, that the design around is more than colorable, in fact DISH insists based on the same evidence the design around no longer infringes.

    Again once both parties accept the evidence, and are able to make their own conclusions based on such evidence, there is no need for additional discovery.

    Can the judge say hey TiVo, why did you accept the evidence in your last filing? I was going to allow you another discovery remember? So please TiVo get yourself together and request another discovery so I can grant it for you.

    Can he do that? Of course he can, but DISH can appeal to that decision because it is clearly unfair.

    Regardless, even if DISH does not appeal, as long as the design around is true as DISH is claiming, DISH has nothing to fear, another discovery will just delay the thing another 3 months.
     
  11. Sep 18, 2008 #911 of 1182
    James Long

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    Tivo did not accept the evidence as complete. All they said was that based on what LIMITED evidence DISH volunteered it appeared that DISH continued to infringe. If Judge Folsom decides that the evidence is not enough to demonstrate infringement Tivo can still seek the full discovery. That is why they defended their "next step" in the hearing. Just in case Judge Folsom decides to work ahead Tivo made it clear that (in their opinion) there wasn't enough evidence so far to find DISH to be non-infringing.
     
  12. Sep 18, 2008 #912 of 1182
    nobody99

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    That's an awfully circular argument. Both TiVo and Judge Folsom had a reasonable expectation that DISH would shut down the DVR functions. The Judge didn't order a physical recall precisely because he expected his order to be followed.

    If he knew his order would be ignored, he would have orderd a physical recall.
     
  13. Sep 18, 2008 #913 of 1182
    Curtis52

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    The judge could have ordered that each DVR be run over by an Abrams tank. The outcome would have been the same. There would have been a stay and the DVRs would have been modified and no longer infringing and no longer subject to the injunction. Simple.
     
  14. Sep 18, 2008 #914 of 1182
    nobody99

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    And yet again he repeats himself, again without any basis in fact. :rolleyes:
     
  15. Sep 18, 2008 #915 of 1182
    Ergan's Toupe

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  16. Sep 18, 2008 #916 of 1182
    nobody99

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    There you go again with your mistruths. There was no "discovery."

    What would going to be more revealin? A court ordered disclosure of information (a.k.a., "discovery") or a voluntary pile of steaming doggy doo doo? DISH undoubtedly made the "voluntary" information about as difficult and meaningless as possible.

    So don't try to spin this into something it's not. DISH gave TiVo crap, and everyone knows it.
     
  17. Sep 18, 2008 #917 of 1182
    Greg Bimson

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    And TiVo analyzed the "crap" and figures they still infringe.
     
  18. Sep 18, 2008 #918 of 1182
    James Long

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    True, although a judge ordering that specific method of destruction probably would raise a few eyebrows. Thanks to the stay DISH had time to make a change. I have no expectation that DISH would have done a recall/exchange program unless they didn't get a stay.
     
  19. Sep 18, 2008 #919 of 1182
    Greg Bimson

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    Yet there has never been a ruling where an adjudicated device installed in customer homes was modified and no longer subject to an injunction.
     
  20. Sep 18, 2008 #920 of 1182
    Curtis52

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    Interesting trivia but not very useful. I doubt whether anyone cares.
     
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