The Tivo vs Echostar (mostly speculation) Thread

Discussion in 'General DISH™ Discussion' started by Rob Glasser, Apr 11, 2008.

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  1. jacmyoung

    jacmyoung Hall Of Fame

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    Not going to happen. DISH in its forward-looking statement to its investors made very clear that they will mount a "rigorous defense" and at the same time warned the possibility that some of their DVRs may be turned off.

    One can call that a bluff or spin whatever one wants, I only see it at its face value, that DISH has so far kept its words on rigorous defense, no one can say they absolutely will never let any of their DVRs go dark.

    I will have no problem if my 625 loses some service, as long as they replace it with something newer.

    If DISH and Tivo settle, I am fine with it too, I have no ill feeling against anyone. Just don't believe Charlie is the kind of person that will try to keep some of his DVRs alive at all cost.

    And I also continue to believe, based on the facts laid out as well as my interpretation of that analyst, it was Tivo who wanted to settle more so than DISH and continues so.
     
  2. Greg Bimson

    Greg Bimson Hall Of Fame

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    I think I understand what you've been trying to say, but it is not what you think it is.

    The judge does not have to allow a stay on an injunction that is in full force and effect. An injunction is issued to force a party to comply with some remedy. And in a very large majority of the time, they are not changed once in full force and effect, unless a settlement occurs. So, when you write:
    Finding DISH in contempt simply means not following the court's order. In this case it would mean not following the order to shut down the DVR functions in certain receivers.

    Looking at the new software claim has nothing to do with the current injunction, per se. This is what DISH/SATS is trying to say they can "fix". However, this would be the time where TiVo states they need discovery. It took two years from the time the paperwork was filed by TiVo to sue Echostar until the time it went to court. So let's imagine it takes TiVo a year to look at the new code.

    During that year, do you honestly believe DISH/SATS gets the benefit of the doubt and receives a stay on the injunction, again, pending a review of the new software? Before a trial, the defendants are presumed innocent until proven guilty. This time, one is to take an argument from the guilty party that they are no longer guilty, and that the remedy to remove all DVR functionality should be delayed pending discovery on the new software?

    It is exactly like I said before, this will not happen, as an injunction will never have any teeth to force a guilty party to do anything. Remember this?

    We've changed our software so it no longer infringes.
    Stay the injunction until proven the software no longer infringes.
    The software still infringes, so the injunction is valid.

    We've changed our software again so it no longer infringes.
    Stay the injunction again until proven the software no longer infringes.
    The software still infringes, so the injunction is valid.

    We've changed our software for the third time so it no longer infringes.
    Stay the injunction for the third time until proven the software no longer infringes.
    The software still infringes, so the injunction is valid.

    If an active injunction is stayed, removing the full force and effect because a change in software must be inspected if it violates a patent, then the injunction will never be enforcable if the guilty defendant always claims they have a workaround.

    You've put too much stock on what can be done once an injunction is in full force and effect.
     
  3. jacmyoung

    jacmyoung Hall Of Fame

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    That is what I believe yes. The only meaningful threat DISH will be under would be if they loses all appeals on the contempt of court ruling.

    There have been ample examples where even if a judge refused to stay the injunction, the appeals court looked at the new evidence carefully before reaching a conclusion. In light of the fact as it stands, the hardware is not infringing, and only the old software did, DISH's new software claim is very crucial in such determination. It will be unreasonable to ignore DISH's evidence.

    It is not necessary to go through the two-year discovery in order to stay the injunction, the law says if the new device can demonstrate it is more than colorably different, then a contempt ruling may not be appropriate, that the judge must arrange a new hearing on the new software infringement issue, or what you call discovery.

    To determine colorable difference is a very short course, takes a few weeks max.
     
  4. Greg Bimson

    Greg Bimson Hall Of Fame

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    Agreed on the discovery, just pointing out that any delay in understanding if the new software infringes would be interpreted in TiVo's favor at this time, because DISH/SATS are the guilty parties.

    However, you are now caught up on the "colorably different" issue. The order states to shut down the 501, 508, 510, 625, 721, 921 and 942. Unless DISH/SATS can get that part of the injunction rewritten (which in and of itself is difficult), as of 20 May those must have their DVR functions shut down.

    Why is it both RIMM (Blackberry) and Vonage settled their cases before an injunction was issued? Because it gets much worse for the guilty parties if the injunction is in full force and effect.
    New "evidence"? This is usually examined prior to an injunction becoming in full force and effect.

    What you have been arguing is what most infringers do prior to an injunction becoming active. RIMM tried this with NTP by stating they had a workaround, but the judge in that case urged the sides to settle because the answer to the question of the workaround would have occured after the shutoff. It was expected that Blackberry would have had to shut down their service until the courts found that the workaround didn't infringe. Vonage said they had a workaround the Verizon patent, but then backpedaled and came to an agreement, saying they didn't have a workaround.

    This case is totally different, only because the injunction is already active. It is much harder to get the injunction changed now that it is in full force and effect. It is possible to be changed? Yes. Is it likely to be changed? We'll see, because I would believe one of the first orders to come out of the 30 May hearing, if TiVo asks for a contempt proceeding, will more than likely be finding Dish Network in contempt of court.

    Dish Network and Echostar can argue about new software all they want. If they don't comply with the injunction, and it will most likely be expected that they comply while seeing if their software no longer infringes, this will get truly ugly.
     
  5. jacmyoung

    jacmyoung Hall Of Fame

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    But during a contempt hearing, new evidence is the key for the judge to decide if he should find the offending party in contempt or not. Even in the cases where it was clear the new devices were merely colorably different, the judges still allowed experts from all parties to testify before they decide on contempt charges. In this case it is my opinion DISH can easily convince the judge their new device is more than colorably different.

    If you read the language of this injunction, you would agree if a new device is more than "only colorably different" it would satisfy the initial test of the injunction limitation.

    The judge should not find the party in contempt if he decides the new device is more than colorably different, even though the injunction is in full force. And when there is no contempt ruling in place the party suffers no consequences while operating the new devices.

    After the judge hears the infringement issues on the new device, and if the judge agrees with DISH the new software no longer infringes, again he will not issue a contempt ruling, additionally if DISH can convince the judge there will not be infringing devices in the future, the judge can even lift the injunction, but DISH does not even have to get that far.

    If after the infringement hearing on the new software the judge determines the new device is still infringing, he can then issue a contempt of court ruling, or do something else in similar effect to punish DISH, and if DISH fails on appeals, they can be in a lot more trouble.
     
  6. Curtis52

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    A contempt hearing is not a lets-change-what-the-injunction-says hearing. The evidence presented will only be whether the DVRs have been shut off or not.
     
  7. Greg Bimson

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    You wrapped yourself around the "TiVo may issue a temporary settlement" offer, because that is what one analyst says, but forgot that the same analyst said the listed DVR's will more than likely need their functionality shut off, because that is what the injunction states.

    The listed DVR's are supposed to be shut down until DISH/SATS can possibly win with the fact they are no longer infringing, because the injunction is in effect.

    The order says to shutdown the 501. A 501 with new software is not "colorably different", even with new software, until it is proven. Meanwhile, the 501 should still be shut down.
    And this is the one issue we go around. Since when is a 501 a new device? The "colorably different" language is to simply add newer devices (such as the 622 and 722, if they still infringe), not to reinterpret the existing devices which were to be shut down.
     
  8. jacmyoung

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    This is where we disagree. Due to the nature of this case one can argue a 501 with new software is indeed a new device because:

    1) The hardware issue was reversed, so the 501 hareware itself is not an offending device anymore;
    2) If a new softwware is installed in the said 501, and if the new software is more than colorably different than the old device--the old software, it then satisfies the injunction limitation.

    Therefore DISH will not be in contempt of court while keeping the 501s on, even though the injunction is still in full force. Now the analyst was saying the judge will likely to be conservative, and still find DISH in contempt with the new software in the 501s.

    What I am saying is in this case the analyst failed to recognize that DISH can appeal to such contempt ruling.

    Since the purpose of an injunction is to prevent future infringement, not the past offense, which will be covered by the damages, the appeals court must take into consideration of the facts that now the 501 hardware never infringed, and in addition, the new software may not infringe too. If so the goal of the injunction would be met.

    Any reasonable judges should not refuse to consider the above new facts. I am not saying judges always use common sense, but I have seem more often than not the judges were in favor of upholding the spirit of the law, over the language of the law.
     
  9. Curtis52

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    Judge Folsom probably didn't know that the software gets revised several times a year on DVRs. If he wanted the DVRs shut down he should have just listed the model numbers of the DVRs. Wait a second... that's what he did.
     
  10. jacmyoung

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    Tivo's submittal is due today, when will you be able to post a link to that?
     
  11. Greg Bimson

    Greg Bimson Hall Of Fame

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    I generally agree with this.

    However, realize that in order to accept "new facts", it is normally a mistake to cross the directive given by the court. Want the listed DVR's to be considered no longer infringing? Fine, as we said, because you had infringed, shut them down until we make that determination.

    That is the whole point of an injunction. Either fix the problem quickly, or settle with a license. And that was the entire problem with the injunction. In most cases the District Court judge stays the injunction pending appeal. This one did not.

    If Judge Folsom had stayed the injunction, this entire point of a shut down may be almost entirely moot, as the workaround would be introduced prior to an injunction issued in full force and effect. Even then, the judge may force the hand of the infringer, by telling the infringer that they are subject to the shut down until it is proven the work around doesn't infringe. That's exactly what happened in the Blackberry case.

    If Dish Network goes as far as disabling the couple mllion offending DVR's, then I'd believe DISH would be in more of a dire strait than TiVo. Besides the customer defections, DISH would probably be hounded by TiVo, most likely by going after the hardware claims, so that all the new DVR's are also covered by the injunction.

    There is a reason why most infringement suits never get this far. The injunction usually hurts from the teeth that are in it. Is this a special case where an injunction is supposed to be toothless?
     
  12. jacmyoung

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    Which is why I tend to agree Judge Folsom is likely to find DISH in contempt and will not stay the injunction while he looks at the new device claim, but the appeals court may do otherwise. They did not have to stay the injunction last time when Judge Folsom did not wish to do so, but stayed it anyway.
     
  13. Herdfan

    Herdfan Well-Known Member

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    Teays...
    Yes, I came here looking for that and there were all these new posts rehashing the same thing. I thought there was something new.
     
  14. Curtis52

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    See new thread.
     
  15. James Long

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

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