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Discussion in 'General DISH™ Discussion' started by dfd, May 14, 2010.
Currently, there is no requirement to evaluate a work around.
If so, then only when the requirement kicks in should E* begin to accumulate liability, but since this is not true, therefore your answer is not correct. Infringement must stop at any time regardless if there is injunction or not, else damages will accumulate, even possible sactions. The problem is, E* cannot implement anything this time unless the court approves it. You can't blame E* for not stopping any alleged infringement when the court refuses to let E* do so.
Now we have this analyst telling the investors TiVo is looking good for one reason, the PTO again affirmed its patent. Supposedly the CAFC judges will take a look at the PTO documents and highly regard the affirmation in TiVo's favor.
Hello? It has been E* who tried to have the judges review the PTO proceedings as evidence in E*'s support, and TiVo has been trying to keep the PTO evidence out of the court, arguing that it is irrelevant to the court proceedings.
Sometimes I wonder how analysts keep their jobs.
Again, there is no requirement to evaluate a workaround. There will be if Judge Folsom's injunction is in full force and effect. Because the injunction is not in effect, Dish Network most certainly can implement anything they want.
Yep, even so, there would be those that claim Dish acted in bad faith and was "sneaky". Deja Vu.
They don't have to make sense or be backed up with precedent, they just have to appear to be reasoned. Clients pay for news and they expect to get it whether or not anything has materially happened.
Not only that but in contempt Except Greg does not want to face the issue of E* cannot do anything unless the court first approves it this time. TiVo cannot now say but the order is stayed E* can do whatever during the stay, if so, E* can say hey then we should not be held responsible during the last stay you know.
So can we start all over and be consistent this time?
How do you appear reasonable but make no sense at the same time?
Let's make this simplistic as possible:
Dish Network cannot be held in contempt of an injunction that is not in full force and effect. Therefore, Dish Network can infringe, sell infringing devices, keep devices with their functionality enabled, and employ any workaround they see fit.
So I am completely facing "the issue of E* cannot do anything unless the court first approves it this time." Contempt cannot be found against an order that isn't active. However, if infringement is still present, TiVo can ask for more damages because the infringement is still present.
Contempt was found because Dish Network was still infringing and was still enabling DVR functionality on the receivers ordered disabled once the injunction became active.
Technically, Dish Network can do whatever they like. If they don't employ a workaround during this stay, and the DVR's are still infringements after the appeals expire, Dish Network will be on the hook for more money while infringing during the stay period. But they cannot be found in contempt during the stay period, as there is no active order.
The problem with the argument is that there is tying of the injunction to ongoing damages for infringement. They are separate issues. Contempt is simply a violation of the order. Damages are awarded because of ongoing infringement, which has nothing to do with contempt. That is why TiVo was awarded damages during the stay period (even though Dish Network argued that their workaround limited the damages), yet contempt was only found because once the order was active, Dish Network was found in violation of two different provisions.
Ongoing infringement and following the orders of an inactive injunction are two different items. It's legalese. No one is expected to remember it all.
You seem to making argument only you are making. Why don't you read what E* said, what TiVo said, and what the judge said?
E* asked the judge to review the new work around, did TiVo object? No, TiVo never said but it was not necessary because the order was stayed and E* could just implement the work around as they wished, TiVo said let's have a full discovery.
The judge never said oh don't worry E*, you do whatever because my order is stayed. In fact Judge Folsom pointed out the serious need to timely clarify the issue for both E* and TiVo on the issue of the new work around, only that at that time he did not have time to do so for them.
So please try to stay with the arguments made by the parties involved in this case.
What motion is currently in front of Judge Folsom's court?
I'll be happy to follow the guideline, with a caveat:
Complaining that Dish Network has "informed" the court of their workaround attempt because that is what the injunction says to do, yet the injunction also says to disable the DVR functionality of the DVR's found infringing and they aren't disabled yet. The argument that "Dish Network is simply following the injunction" was made by neither party, but is continually being addressed here.
So I'll be happy to stay within the arguments made by the parties as long as everyone else does the same.
Considering how you just distorted those arguments, I don't think you have any room to lecture someone else about them.
You're missing the point.
There is NO injunction in effect. DISH can do whatever they like as long as there is no injunction in effect. They could revert to 2005 code and reenable everything they disabled as long as there is no injunction in effect. (That would not be recommended as restoring infringing code would add more months and infringing units to eventually pay court ordered royalties for. It would be better to have non-infringing code in place and, when it comes to that, be able to prove it.)
Politicians do it all the time.
The motion for Judge Folsom to review the new work arounds by E*, had been sitting on his desk since I think March.
Did you get to see the new codes in the new work around? TiVo did, TiVo never said to Judge Folsom, look E*'s new work around still had DVR functions, TiVo just said yes let's do a discovery to figure it out. E* wanted the judge to figure it out for them too, even the judge said he understood the need to help both parties to figure it out, only that he did not have time to do so.
Neither TiVo, nor Judge Folsom ever even implied that E* could just implement all it wanted just because the order was stayed. So yes please stick to the arguments they made.
TiVo clearly believed that there was no need for E* to worry due to the stay.
After all of this time, ALL of your posts, have you not learned what a stay does and means?
Stay = No injunction = E* can do whatever they want
Of course once the injunction is reinstated, E* is at risk of being found to be still infringing under the injunction.
I see in the discourse of one of the other threads that the injunction was stayed by Judge Folsom until June, 2010. I see it is an "emergency motion for resolution".
What I don't see is any schedule to get this ball rolling. Remember all of the meetings and schedules issued by docket during the contempt charge? Nothing is here, yet. It may be because I haven't been able to read any of them, but I did see that they were docket numbers in the 1020's to docket number 1040.
Of course, TiVo is entitled to discovery, and I'm not sure that was ever granted.
When the injunction became active the first time, it was clear that EchoStar didn't bother informing the court of the possible workaround when the requirement was to disable DVR functionality.
This go around is exactly what should have happened last time, and once again, there is no mention that Dish Network may have actually downloaded workaround #2 already without anyone noticing. EchoStar can certainly do that and it wouldn't have to be brought up to the court.
I'm making the argument because it wasn't addressed by anyone at all. The issue on the docket is to determine if the workaround is still infringing; it doesn't address that the workaround may have already been deployed, could be deployed or hasn't even been deployed, as it is irrelevant to the motion itself. That is why you don't see anyone addressing it.
Only in terms of not having to rush into implementing anything, i.e. not even having to disable the DVR functions. Hopefully such statement can later be used by E* to its benefit, if TiVo wins en banc
But TiVo did not say E* could implement all E* wanted because of the stay, TiVo in fact wanted to have a full discovery into the new work around.
It does not matter what I have learned, it matters what E* had said, what TiVo had said, and what Judge Folsom had said. Because based on what I have learned E* has been in compliance since 07, but not according to TiVo or Judge Folsom, so I say stick to what they have to say
It was not deployed by E* because E* told Judge Folsom E* needed him to approve it so E* could implement it. Judge Folsom never gave a final answer. He did not say hey go ahead do it since my order was stayed, he only said I had no time to review it.
Would you go ahead implement it anyway without the judge's blessing this time, giving that he made it very clear he did not like you do so without his approval, regardless whether the order is stayed or not?
As long as the judge did not explicitly say "don't deploy it" - I would. If nothing else - it's "less infringing" than the original, and there's a good chance that it isn't infringing.