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 DP-8080 would be treated an "Infringing Product" if the product was only colorably different from a named "Infringing Product". Something that looked like a DP-501 with a cheap sticker on the front and similar menus could be considered "only colorably different" ... regardless of if the software actually infringed.

    But yes, although the injunction covers products only colorably different the definition of "Infringing Product" doesn't change. The DP-8080 would not be an "Infringing Product" ... it would just be treated as if it were an "Infringing Product". Even if a DP-8080 never infringed.

    Who said he is? The judge is allowing use of "Infringing Products" ... he is not allowing infringement.

    It is simple once you figure that out!
     
  2. jacmyoung

    jacmyoung Hall Of Fame

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    If you did not say that, then did you mean the DP501s in the field will no longer infringe on the Tivo patent as long as they are used as non-DVRs?

    In another word it is possible to download a software, and modify the adjudicated products, into some sort of modified products that no longer infringe on the patent?
     
  3. Greg Bimson

    Greg Bimson Hall Of Fame

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    Isn't that in essence what Judge Folsom's injunction does? The order states to disable the "Infringing Products". By disabling the DVR functionality, how could the product infringe any longer? Anything other than disabling the DVR functionality is not complying with the court's order, which is why TiVo has a pending motion for contempt.

    I did re-read TiVo's contempt motion. The only issue TiVo has brought before this court is simply a motion to find contempt regarding the disable section only. TiVo did not address any other receivers, nor did they address ongoing sales of "Infringing Products".
     
  4. kmill14

    kmill14 Godfather

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    This seems like a familiar path. Let me complete your statement for you, since you left out a few key words:

    *****
    In another word it is possible to download a software, and modify the adjudicated products into some sort of modified products that no longer have DVR functionality.

    *****
     
  5. kmill14

    kmill14 Godfather

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    jacmyoung, I still didn't get a response to the major part of your earlier question. You asked whether I thought the "disable DVR functionality" was to stop on-going infringement, and you see my response above. Do you agree or disagree that the "disable DVR functionality" order is completely seperate to the on-going infringement order?
     
  6. Herdfan

    Herdfan Well-Known Member

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    Teays...
    As much as I hate to admit it, jacmyoung brings up a valid point. How is an adjudicated infringing receiver that has the DVR functions disabled that different than one that has new not-yet-to-be-found-infringing software.

    I know the injunction states to disable the playback from a hard drive. But it doesn't state they have to disabel the receiver entirely. I don't see that far of a jump from receiver to DVR with new software.

    As I am not familiar with the DISH receivers, do any of them have a USB port? If so, what would stop dish from sending its customers some sort of USB solid state (think huge thumb drive) storage device that is not disk based? Would that be in compliance?

    Or disable the DVR functions, but "leak" a method for allowing an external drive to be enabled via a backdoor? They would still be in technical compliance as they disabled the hard drive. What customers do is out of their control.
     
  7. Greg Bimson

    Greg Bimson Hall Of Fame

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    I'll admit it isn't too much of a jump. However, the injunction order states to disable DVR functions. Not load new DVR software.
     
  8. nobody99

    nobody99 Icon

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    But was the intent to stop infringement, or to stop profit from the original infringement?

    What reason would a judge prevent a company from selling a non-patented reapir part (in the case I mentioned a few days ago)?
     
  9. jacmyoung

    jacmyoung Hall Of Fame

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    I don't know, according to some of you:

    1) The adjudicated products in this case can not be modified, but accroding to your latest statement it seems yes they can be modifed, because the injunction ordered them to be modified.

    2) A software download can not possibly modify the adjudicated products in the field, yet you just admitted indeed a software download now appears able to modify the adjudicated products in the field, without a recall.

    3) The adjudicated products can not possibly become "modified products" with a software download, but now it seems you just agreed it is possible, as long as it is "allowed" by the court.

    4) The adjudicated products, once infringed on the patent, always do, but now you also admitted after certain court-permitted software download in the field, they indeed can become products that no longer infringe on the patent.

    5) And once the adjudicated products, after a software download in the field, modified to no longer infringe on the patent, they can continue to be used, as long as they do not infringe on the patent again.

    So far so good?
     
  10. Greg Bimson

    Greg Bimson Hall Of Fame

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    Talk about adding terms together:
    As per the order given in the injunction, the order was to disable, not modify. Always been my position.
    See reply to Point 1.
    In order to get the "Infringing Products" moved off of the list, DISH/SATS must request a modification of the injunction. That is what they've done with their motion for consideration regarding the Advanced Exchange Program.
    No, they are ruled infringing until there is a modification of the court order.
    See reply to Point 1.
     
  11. kmill14

    kmill14 Godfather

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    I think its a good time to bring up this real-world example again:


    1. John Doe has the DP-501 with DVR capabilities

    2. Court order states that John's DP-501 must have its DVR capabilities disabled.

    3. E* send a software update to John's DP-501, but the DVR capabilities still work.

    4. Court finds E* in contempt for not disabling the DVR capabilities of John's DP-501.



    jacmyoung, how would you alter this assuming you don't agree with it?
     
  12. jacmyoung

    jacmyoung Hall Of Fame

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    Didn't you just say:

    Then what do you call them, the same products, or what? Can you find a definition for them?

    I am talking about these DP501s..., that after a software download, in the field, changed to some standard receivers, and allowed to continue, and you are insisting that they are not modified products?

    Give me a name Greg. You already said they are not new products, they of course can not possibly be the same products, otherwise they will not be allowed to be used yes? You seemed to agree at one point they were modified prodcuts, just a special kind, and now they again are not modified products, so help me to find a correct term for them, my English is limited.
     
  13. jacmyoung

    jacmyoung Hall Of Fame

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    1. John has a DP501 with DVR functions;
    2. Court order states that DP501 must have its DVR functions disabled;
    3. E* sends a software to that PD501 that no longer infringes on the patent, therefore the use of its continued DVR fucntions by that software no longer infringe on Tivo's patent;
    4. Court therefore can not find DISH in contempt because the higher court said so. The higher court said if there is no infringement of the patent, there is no violation of an injunction on infringements, any injunction on infringements, no matter what that injunction says, period.

    "Infringement is the sine qua non of violation of an injunction against infringements," meaning infringement on the patent is an essential act, without such act, violation (contempt) of an injunction agaisnt infringements simply can not be.

    The term "an injunction agaisnt infringements" refers to all injunctions in the patent infringement cases, including this one. The above rule is universal in all patent cases.

    An injunction can not anticipate nor should it try to anticipate what might happen in the future so the infringer will no longer infringe on the patent, therefore an injunciton only proscribe acts that it can rule as infringing at the time, to ensure no future infringement of the patent.

    But if anything, anything at all that may be unanticipated back then, happens in the future that allows the infringer to no longer infringe on that patent, then the infringer can not possibly be in violation of any injunction, period.
     
  14. Greg Bimson

    Greg Bimson Hall Of Fame

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    Talking about a definition of the "Infringing Products", if they were disabled:
    They are the same products. A DP-501 from four years ago is the same as it was two years ago, and is the same now, simply running different software at each point. It would still be a DP-501 if the software is disabled.

    A DP-501 is one of the "Infringing Products". It is also an "adjudicated, court-order modified products".

    As an "Infringing Product", a DP-501 is subject to the injunction order for its length. That order states to disable the DVR functionality. Is that a "modification"? It sure is; it is the only modification that follows the directive of the court. Is changing the DVR software allowed? Sure is, as long as DVR functionality is removed.

    This is a cat-and-mouse game, where you are trying to slip someone up, once, and use it to prove your point. The only issue is that the clear directive of the injunction order is to disable the DVR functionality, for the length of the injunction.

    Judge Folsom ordered DISH/SATS to disable the DVR functionality, by disabling storage and playback of television data. If disabling is due to a modification, so be it. But it is the only modification that matters. All else but disabling the DVR functionality can be considered contempt.
    No longer infringes? Says who?
     
  15. Greg Bimson

    Greg Bimson Hall Of Fame

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    How do the courts know that the infringement has ended? What facts have been presented to the court, for their consideration, to state that adjudicated products might no longer infringe?
     
  16. kmill14

    kmill14 Godfather

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    And yet you forget that the higher court said that the only thing needed to be found in civil contempt is to disregard a court order.

    Why are there 2 seperate orders in the Injunction...one talking about on-going infringement, and the other talking about disable the functionality of adjudicated products already in end user hands?
     
  17. James Long

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

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    The first is in compliance with the injunction ... the second (if it has DVR functionality) is not in compliance with the injunction. Infringement is irrelevant. The injunction says "disable the DVR functionality". Not "change the software" but "disable the DVR functionality".

    That is what DISH is hoping for ... that the judge will be kindly and accept the concept of new software as compliance and not hold DISH in contempt.

    No. The hard drive was an example of items involved in DVR functionality ... it isn't the end. Even if DISH did disable the DVR functionality completely they would need the hard drive in those receivers for EPG and non-DVR functions. I believe the court would allow the hard drive to remain active as long as it was not being used for DVR functionality. The key isn't to brick the receiver or do any more than what the injunction specifies ... the key is to disable the DVR functionality.

    Wink wink ... yeah, the court would go for that. :rolleyes:
     
  18. James Long

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

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    The injunction ordered a specific modification. It didn't say how that modification should be carried out (via software, via recall, via sledgehammer) it just plainly said disable the DVR functionality. Is that hard to understand?

    The products remain adjudicated and under the injunction that says that their DVR functionality must be disabled. Software modifications are irrelevant. The order remains "disable the DVR functionality". Get r done.

    They can only be used with their DVR functionality disabled - until a court says otherwise - not "until the defendant feels like it" but until there is a ruling that says they can use those products as DVRs. Simple.

    DISH is in contempt for not following the injunction.

    Simple.

    May Judge Folsom have mercy on their corporate soul!
     
  19. Curtis52

    Curtis52 Hall Of Fame

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    Ended? These are not the adjudicated devices. These devices replaced the adjudicated devices. TiVo has to show that there is infringement.
     
  20. kmill14

    kmill14 Godfather

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    :hurah: :hurah: :hurah: :lol: :lol: :lol:

    You mean John Doe doesn't have his DP-501 anymore? Did someone come pick it up for him? TiVo doesn't have to show anything. John Doe still has his adjudicated DP-501 with working DVR functionality, and that is going against what the Court ordered.
     
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