Tivo vs. Dish: Petition for rehearing en banc granted

Discussion in 'General DISH™ Discussion' started by dfd, May 14, 2010.

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  1. Mar 8, 2011 #1081 of 1139
    phrelin

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    Nonsense has been forced on plaintiffs and defendants over the years. Should be interesting to see what the court will do.

    When, again, might the court do something? Seems like it's been forever.
     
  2. Mar 8, 2011 #1082 of 1139
    jacmyoung

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    Greg if you really believe the en banc panel is fed up and will likely establish new standards to help TiVo, all I can say is don't hold your breath because if there is a need to have a new standard, it necessarily proves there was a lack of some standard, or the existing standard is not clear.

    E* cannot violate a standard or a rule that did not exist or was not clear. Be careful what you wish for.
     
  3. Mar 8, 2011 #1083 of 1139
    Greg Bimson

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    New standard? The standard on any recall or destroy order has been absolute. The standard for "disable" will probably be, as well, and that is not a new standard.

    I simply expect existing standards to be upheld.
    I'd expect a decision soon, as defined by Dish Network. :)
     
  4. Mar 8, 2011 #1084 of 1139
    jacmyoung

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    Ok, I thought you said at one point KSM was no good, the Qs asked by the en banc implied they wanted to establish some new standard. Maybe I read you wrong. So long we are on the same page on this one.
     
  5. Mar 8, 2011 #1085 of 1139
    jacmyoung

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    I almost missed this one, you said over and over if the order is stayed there is no requirement, why you said the court does not have to review for preapproval for example, why then you seemed to say E* should have notified during the last stay?

    Why is that notifying after the stay was lifted was not good enough that it should have been done during the last stay?
     
  6. Mar 8, 2011 #1086 of 1139
    Greg Bimson

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    Just pointing out that DISH/SATS never informed the court of the workaround. TiVo did.

    However, just for giggles, yes, DISH/SATS should have filed a motion for clarification, stay or not. But that would have ruined their gameplan to game the system by forcing an appeal during a contempt proceeding. Notice how DISH/SATS did nothing until the 30 May 2008 hearing, and once DISH/SATS learned that TiVo was filing a motion for contempt, DISH/SATS went to Delaware to file their declaratory suit regarding infringement of the modified devices.

    It still goes back to my point that as crystal clear the order to disable was written, DISH/SATS had no intention to follow it. It is telling from the original reply to TiVo's motion for contempt that of the 20 pages allotted, DISH/SATS spent 17 discussing the new software and less than two discussing how they adhered the injunction.

    DISH/SATS waited for TiVo to do something, and then had to play from a defensive position. If DISH/SATS' position was so strong, they'd have been on the offensive.
     
  7. Mar 8, 2011 #1087 of 1139
    jacmyoung

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    Not true, before the injunction was lifted, E* publicly said they had done the work around, right after the injunction was lifted, but before any court actions, E* contacted TiVo, not only informed TiVo of the work around, but provided TiVo with the new software code so TiVo could examine the work around.

    If so, the court should follow through with the motion and act on it, not simply saying it had no time, stay or not. So I do not want to hear another excuse that the court does not have to review E*'s new work around for pre-approval, just because during the stay such is not required. Other wise you are holding E* to a higher standard than the court.

    E* during the last stay failed to inform the court, that was a big no, even though you insisted during the stay nothing really needs to be done, so now during the stay, it is a big no if the court decides it simply has no time to follow through with its own pre-approval order.

    But if the court actually made the effort to review E*'s pre-approval motion in the past year, it could have ruined TiVo's game plan too you know, because what if after the review the court decided to pre-approve the new work around for implementation already? So you see can't have it both ways.

    Many things happened between E* and TiVo before 5/30/08, you just forgot about them.

    E* initiated the contact with TiVo after the stay was lifted, believing that after TiVo looked at the new code TiVo would have agreed they no longer infringed, that was it, but TiVo decided to go after E* anyway.

    Now E*'s is again taking initiative, motioned the court for pre-approval, stay or not, as you said, but the court decided no, it had no time to deal with it. So why do you think it would have made any difference back then had E* initiated any sort of "offense" back then? What exactly the difference it would have made? Still the same court, same judge, same TiVo, right?
     
  8. Mar 8, 2011 #1088 of 1139
    James Long

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    Do you understand the difference between informing the public and informing the court?
    That's why Judge Folsom was ticked at DISH ... they didn't inform the court.
     
  9. Mar 9, 2011 #1089 of 1139
    Greg Bimson

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    Along with the fact that the court was never informed...
    Funny. Other than just over $100 million, over seven years of litigation is still being tied up in the courts and blame for failure to act on a motion is being placed on the arbiter, who is supposed to remain blameless. That must sum up respect for both the courts and the law.
     
  10. Mar 9, 2011 #1090 of 1139
    jacmyoung

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    We don't know if in the end E* will have to pay anything do we? I know you believe E* will, but still it is not a fact yet.

    So shall we stick to what we know? So far so much was said about how E* did not follow the orders, yet you can not dispute that the court had also failed to follow its own order. I am not blaming the court, there are circumstances which may explain why a specific order is not followed to the extent you or I believe should be followed.

    If you don't believe the court should be blamed for not making an effort to follow through with its own order, does that not make you think twice when you insist how important it is for E* to follow the order, in the way you think it must be followed?

    You want me to respect the court, you must show me why I should respect the court when you can no longer dispute that the court itself did not follow through with its own order.

    You want me to respect the law, when you said yourself KSM (the guiding case law) was no good?
     
  11. Mar 9, 2011 #1091 of 1139
    jacmyoung

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    Yes they did, only that they did so after the stay was lifted. I thouhgt you agreed when the order was stayed there was no requirement of anything so naturally it would be fine if E* informed the court during that status meeting? After all isn't what that status meeting after the lifting of the stay was designed for?

    Or did you mean TiVo forced E* to inform? No TiVo did not. Soon after the stay was lifted, E* told TiVo everything and provided the new code, TiVo did not say it would bring the contempt charge so TiVo could not have forced E* to tell at that time. I don't know who was the first to tell the court in that status meeting about the work around, but even if TiVo was the first to tell, E* was next, TiVo could not have informed the court had E* not told TiVo about it.

    So what now the defendant beware not to tell the plaintiff anything? Who knows the plaintiff might beat the defendant to it and tell the court, therefore prove that the defendant did not inform, despite the fact the plaintiff could not have been the first to inform had the defendant not informed first?
     
  12. Mar 9, 2011 #1092 of 1139
    Martin Tupper

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    Notification should be enough for new, modified products being brought to market. While those products may still run the risk of being no more than colorably different than the "Infringing Products", they have not yet been adjudicated.

    However, pre-approval should be required before any of the existing "Infinging Products", which actually were adjudicated, found to be infringing, and ordered to be disabled, should be allowed to be re-enabled. As far as the courts are concerned, those boxes use infringing software. It should be incumbent on the defendant to demonstrate that it no longer does, before being allowed to start them back up again.
     
  13. Mar 9, 2011 #1093 of 1139
    Curtis52

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    After the stay was lifted, Dish apparently thought it was important to immediately inform its distributors of the workaround but not the court. TiVo informed the court and the status meeting was set up weeks later.
     
  14. Mar 9, 2011 #1094 of 1139
    Greg Bimson

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    Uh, DISH/SATS paid just over $100 million back in 2008.
    There is currently no order to follow, as the order is stayed.
    I said in this case KSM is overbroad. That does not equate to the case law being "no good".
    We asked the court for a stay because if the injunction is not stayed, we'll have to disable DVR functionality from 3 million users. And since the stay, we've come up with a completely new interpretation of the injunction that doesn't require us to disable anything.

    It's funny how DISH/SATS interpreted the injunction two different ways and didn't remotely attempt to get clarification from the court, yet they didn't bother making any argument about the injunction upon appeal because they interpreted the injunction two different ways.
     
  15. Mar 9, 2011 #1095 of 1139
    jacmyoung

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    Then what are you complaining about?

    Not only there was never a requirement to notify in the old order, but as you insist during the stay there is no rerquirement even if there is a requirement, then why are you complaining that E* did not notify during the last stay?

    E* never changed its interpretation, TiVo did. As Judge Moore pointed out at the end of the hearing, each party can easily walk away from the injunction believing based on its own interpretation it has won.

    TiVo on the other hand told both E* and the court back then its injunction only served to prevent infringement, "nothing more, nothing less." Now TiVo insist its injunction prevents the DVR service even if the DVR service no longer infringed.

    Show me where was the other interpretation? E*'s interpretation had always been if the products still infringed, they would have to be disabled, if later no longer infringed then no, such interpretation was derived from what TiVo had told them back then, that the order was to prevent infringement, nothing more, nothing less, of course TiVo now says differently.

    If you are referring to E*'s first appeal where E* told the appeals court the DVRs would be disabled if not stayed, at that time they had not successfully stopped infringement, there was no telling if their work around would work, they said so even in their quarterly 10K I believe. Of course at that time E* had no way out had the order not stayed, because the DVRs with the old software did infringe, they would have to disable them if the order was not stayed, there was no work around at that time.
     
  16. Mar 9, 2011 #1096 of 1139
    jacmyoung

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    E* publicly stated they had a work around installed even before the injunction was lifted, I recall the first time I heard it was at the end of 07. Soon after the stay was lifted E* also contacted TiVo, not only told TiVo officially what they did, but provided the source code, thinking TiVo would be satisfied. Had TiVo been satisfied, it would have been over, notification would not have been an issue.

    But TiVo ran to the court. Yes technically TiVo was the first to inform the court, but you can't be serious to use that against E* since had E* never disclosed it, you would not be able to argue that E* was not the first to inform, wouldn't you?

    So long as we can agree that during the stay, there is no requirement, therefore you cannot find any violation for not notifying the court during the stay.

    So now what, it hinges on who was the first to run to the court to inform? The second guy gets slammed for not running fast enough? Again E* was not forced to inform, it informed TiVo before it knew TiVo would run to the court.
     
  17. Mar 9, 2011 #1097 of 1139
    Greg Bimson

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    I am simply pointing out that you believe DISH might not have to pay anything, but my point was simply they have done so already, and it is all that TiVo has to show for seven years of litigation.
    That's because TiVo received an injunction that the adjudged infringing products with an end user must have DVR functionality disabled. Disablement would stop infringement, and if DISH/SATS wanted to do something other than disable DVR functionality on those receivers, it should have asked the court for clarification.

    Considering DISH/SATS would later ask the court to examine the validity of their warranty replacement program with respect to the injunction, they certainly could have asked if modifying the receivers in a way other than the process mandated by the court would still be within the framework of the injunction.

    Instead, we get the two pages of "we followed the injunction", by redefining a defined term within the injunction, preceded by 17 pages of how this software makes the devices no longer infringing.
    No one ever thought DISH/SATS was going to apply the workaround to devices ordered disabled. The assumption was that DISH/SATS was going to use the workaround on devices still within their supply chain.

    Heck, even the former VP of Legal for DISH/SATS, David Moskowicz, said during an analyst call that the court would have to bless the changes.
     
  18. Mar 9, 2011 #1098 of 1139
    jacmyoung

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    Of course I meant additional costs. I did not say I believe, I said we did not know, maybe we should talk about what is already known.

    Whose fault was that? You are not suggesting E* was at fault for defending itself? Maybe the court is at fault? But wait you respect the court. Maybe the law is at fault, but you also respect the law, the only one left to blame is TiVo then.

    Let's suppose E* did ask for clarification back then, would you not agree the court would have allowed it? That is if the court had determined indeed the modified DVRs would no longer infringe? But how long do you think it would take for the court to decide? It has been three years the court has not made a final decision yet. What if in the end the modified DVRs were found to not infringe, and the court realizes back five years ago it would indeed have been fine had E* installed the new software to prevent infringement? Who is suppose to pay back the loss if E* was right?

    On the other hand TiVo can always collect damages and even enhanced damages if in the end E* was wrong. Now if there is a way for E* to recover any loss if E* is correct in the end, I can see your point more.

    It is already proven that the court is not capable of handling any noftifications, at least not on issues as complex. After repeatedly notified the court of their new work around proposals, the court had made it clear it simply had no time to handle such notification. It was not because the order was stayed, the court did not say that, the reason was the court simply had no time to handle such issues, even if the stay is lifted, the court still will have no time to handle such notification.

    Wasn't that enough to at least show the notification requirement, at least for issues of such complexity, was meaningless?

    When did he say that?
     
  19. Mar 9, 2011 #1099 of 1139
    scooper

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    If the court says it has no time for notifications (when the court THEMSELVES obligated themself to), then why shouldn't Echostar presume they are OK to deploy ? As Jacmyoung just pointed out - IF the workaround is still found to be infringing, there's always additional damages available.

    This also brings the further issue - if the court doesn't have to follow it's own orders (i.e. the notifications) - then why should anyone else worry about following the court's orders ?
     
  20. Mar 9, 2011 #1100 of 1139
    Greg Bimson

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    I'm not assigning blame, just pointing out the hypocritical nature of this next thought:
    Speed of the court is supposed to work against TiVo while DISH/SATS defends itself, yet if DISH/SATS wants the court to consider something such as a workaround, it is supposed to be fast-tracked?

    I recall that the "motion" to consider the workaround was under seal. We don't know what type of "motion" it is. I can assume if DISH/SATS moved the court that it simply wouldn't be placed on the back-burner.

    But I still don't know what Judge Folsom is supposed to consider, because the briefs are sealed.
     
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