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. James Long

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

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    The entire first section (everything up to the second paragraph "IT IS THEREFORE ORDERED") says why the DVRs are being disabled ... because they infringed. But that isn't the issue.

    "Where does the injunction say that only DVRs that continue to infringe are to be disabled?" is a better question. The injunction says the eight named models defined as "Infringing Products" in the injunction must be disabled ... no "as long as they continue to infringe" ... no "until the next blue moon" ... it is until the patent expires (or the injunction is changed by further order of the court, of course).
     
  2. spear61

    spear61 Godfather

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    Finally --- a coherent summary of where things stand!!
     
  3. BNUMM

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    I agree with James. but having witnessed some cases I know that even if the evidence is totally supporting one side as being right a judge may rule something that totally makes no sense. I believe that Tivo has been damaged and should be compensated but I don't want to see Dish blocked from selling legal DVRs.
     
  4. nobody99

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    I don't think a single person wants to see that. The biggest disagreement in this thread has been with the DVRs that are already in customers homes (specifically, eight different models).
     
  5. scooper

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    That is NOT the impression I'm getting from most of the Tivo posters - rather - I get the feeling that some of them would LOVE to see all the "Infringing products" completely bricked , i.e. not even usuable as non-DVR satellite receivers. If your quoted statement IS the case, some words to that effect would be certainly appreciated.
     
  6. nobody99

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    I am truly sorry if my position has not come across accurately. I won't speak for anyone else, but I believe:

    1) DISH has every right to sell new receivers and DVRs. Unless the software is awfully similar to the infringing DVRs, TiVo would be wasting its time (but has the right to) asking for a contempt hearing. At such a hearing for these new receivers, the court would have to decide that the receivers were only colorably different for an injunction to apply to the new receiver.

    2) There are somewhere between three and four million DVRs that were enjoined by the injunction. Any of these must have the DVR functionality turned off. DISH already told the court that they could turn DVR functionality off while leaving the "receiver only" functionality intact.

    I have absolutely no problem with DISH selling new DVRs if their new software doesn't infringe.
     
  7. Greg Bimson

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    I've stated it from the beginning...

    The most likely event, one that I'd like to see, is a settlement. However:

    DISH/SATS doesn't want to pay any more money than ordered, and is going to try to work around the patent so they don't have to pay a monthly fee to license DVR technology from TiVo.

    TiVo only wants a licensing agreement with monthly fees as their main business model going forward.

    These are two diametrically opposing views, which means the courts will have to rule. And anyone that has been paying attention to this thread can figure which poster sides with which party. However, the motives behind that aren't as clear.

    My main motive is simply information. I'm not trying to "save" anyone, but just point out what is there and why it should be interpreted in one fashion. An injunction is nothing to be messed with. And when the injunction states clearly that eight models of DVR's are to be disabled, and that hasn't happened, it is clearly a game of "chicken". Once again, if not careful, innocent subscribers may be caught in the middle.

    It's happened before.
     
  8. nobody99

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    You bring up an excellent point - motivation. As I have previously mentioned, I am a TiVo shareholder (and have been for a loooong time). I do not believe that any conversation on this thread would even budge the share price, so I hope no one thinks that has anything to do with my involvement.

    I find this case fascinating, and the discussion on this board has been great. My only motivation for being involved at all is a little mental stimulation, and a little bit on how I treat my TiVo investment. I want to stay informed, and perhaps with the excellent conversation here, a little ahead of the market.
     
  9. jacmyoung

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    You know it is most interesting Tivo fans continued to avoid answering my question about that product called "Footprint 2.0 Service", remember that case I cited? The entire service as described in the trial was adjudicated product and ordered to be enjoined, shut off.

    The infringer downloaded a software patch, and that was it, no more contempt because the new software patch was no longer infringing, so the Footprint 2.0 Service itself was non-infringing, even though the service was never stopped while being used by the end users in the field all that time.

    Now again my question: if we compare the Footprint2.0 Service right after the new software patch download, to the Footprint 2.0 Service described in the trial that was enjoined, what do you call that Footprint 2.0 Service?

    A new product? A modified product? The same product? Or something else?

    Dare to answer this question?

    Please don't come back with well it was irrelevant, I am not asking you whether that case was relevant to this one or not, imagine the current case never happened, we were only talking about that Footprint 2.0 case.

    Was the Footprint 2.0 with the new software a new product, a modified product, the same product, or something else?
     
  10. jacmyoung

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    Now while you are trying to come up with an answer that does not get you into trouble, let me ask another one, this time actually look at this case.

    Remember when you all said? Had DISH actually downloaded a new software, yes downloaded a new software to all those DVRs in the field, and disabled the DVR functions, then those receivers would be used as standard receivers, yes?

    The question is similar, those DP501s... that are without the DVR functions and used as standard receivers, what do you call them? New products? Modified products? The same products, or something else?
     
  11. Greg Bimson

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    Doesn't matter, and is irrelevant, because the injunction only enjoined the specified product adjudicated at the time of the trial. The adjudicated product was a service, and that product was only software-related. Change the product so it is more than colorably different, and the Defendant is free and clear of the injunction.

    In this case, the products are not software, though the infringement is. The adjudicated products are enjoined from sales, etc., and also subject to a disable order. DISH/SATS wish they had the wording from the Digital Island injunction, because they'd be free and clear.

    As a matter of fact, because this injunction lacks the "product enjoined as configured at the time of the trial" statement, this example would be great for TiVo to use. Injunctions are specific. And because the DISH/SATS injunction does not enjoin products as configured at the time of the trial, a plain reading suggests all "Infringing Products", modified or not, have to be disabled within 30 days of the injunction's full force and effect.
     
  12. Greg Bimson

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    Adjudicated, court-order modified products. They certainly aren't new. They certainly aren't simply "modified".
     
  13. kmill14

    kmill14 Godfather

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    It sure sounds like people are trying to add meaning to this injunction. Certainly if Dish had problems with the wording, they would have appealed it. But at the end of the day, they STILL didn't follow the order of the court, and thats all the Judge needs to hold them in contempt. (even if the injunction itself was erroneous in its wording to begin with)
     
  14. kmill14

    kmill14 Godfather

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    jacmyoung, you never said anything else in regards to my response of your questions:

    ********

    Quote:
    Originally Posted by jacmyoung View Post
    Can we at least agree “disabling the DVR functions (i.e. all storage and playback…)” was to stop on-going infringement? I think Greg you said so. If we can’t even agree that then yes we can’t debate on it, if you believe the above is judge’s punishment for DISH, and so such order is not subject to all the standards we have quoted, that of course make our debate moot.

    But if you can at least say that the above order was to stop on-going infringement, then I hope you can see the logic that if there is no more on-going infringement at this moment, DISH should not be in contempt of such order?


    jacmyoung, no, I do not think that was the reason. Why would he need to further address those products and on-going infringement since the injunction already covered that in an earlier order?

    Quote:
    Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell, selling, or importing in the Untied States, the Infringing Products,

    The purpose of this part of the order, like the earlier case I posted, was the removal those products deemed to have infringed that were already in the hands of the end users. Just like the other case said to go get the products out of retail stores, this Judge said to go get those products and disable them, but do it with a software update. If the software update had not been available, the Judge would have forced E* to recall all those products.
     
  15. jacmyoung

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    Good, at least we have a definition, "adjudicated, court-ordered modified products". So they are modified products, just a special kind of them, confined to what this particular injunction allows, yes?

    My next question is, why would the court allow such modified products to be used? Out of the good heart of the judge, or the good heart of Tivo? Why?
     
  16. kmill14

    kmill14 Godfather

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    They haven't.
     
  17. jacmyoung

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    I thought you Tivo folks agreed they would be able to be used as stardard receivers, are they or are they not?

    Had DISH disabled the DVR functions, and rendered those DVRs non-DVRs, would they be allowed to continue be used as standard receivers or not?
     
  18. jacmyoung

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    But the software update is available, and the judge must also be aware that a software update can not only disable the DVR functions, but also kill the DVRs completely, yes?

    Why not? You just said he would have recalled all those DVRs, so if that was his intention, if the software download was not possible, then now it is possible, why not order DISH to use a software update to kill all those DVRs period?
     
  19. Greg Bimson

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    So customers can still watch TV?
     
  20. James Long

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

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    Why not? It is the truth ... and I hope you're trying to seek the truth.

    The injunction against Footprint 2.0 was against the service as configured. Not the service "period" the service with a major caveat. There is no such caveat in the DISH/Tivo injunction.

    You're trying to twist one case with different rules into supporting your odd viewpoint in this case. Give it up ... it's irrelevant!
     
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