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Discussion in 'General DISH™ Discussion' started by Curtis52, May 17, 2008.
Complete distortion of what DISH said, and you have done so many times.
That I agree, to modify behavior, from infringement of the patent to no infringement of the patent, and once the infringer does modify his behavior to achieve no infringement of the patent, he is no longer in contempt, regardless what the language of the injunction.
Perhaps you missed the joke?
Lighten up dude - it was in response to a comment about Jedi mind powers.
If that isn't enough of a clue ...
I hope the judge interprets it that way and I'm sure DISH is hoping the same. But that isn't what it says in the injunction and such arrogant belief that the injunction must be modified or ignored by the judge does not reflect the case noted in this thread where the company was required to stop selling non-patented repair parts (items that did not infringe at all) under an infringement injunction.
The behavior modification specifically ordered by the court was (everybody together now) "disable the DVR functionality". Infringement or not, DISH was ordered to take that specific action and has failed.
Coming from the person that has for the most part completely distorted the injunction...
Actually, kmill14 isn't far off. Remember DISH/SATS lead counsel Harold McElhinny's response about procedure?
DISH/SATS expects TiVo to file a lawsuit alleging infringement on "products that have not previously been before the court". So DISH/SATS expects TiVo to file suit against the newer models, as well as the DP-501, 508, 510, 522, 625, 721, 921 and 942 again . That cannot legally happen, as those products are under jurisdiction of Judge Folsom and his injunction.
But what about the adjudicated products?
They are gone, according to DISH/SATS.
Guilty as charged. Hope you are happy.
Interesting that you brought up this concept of the judge modifying his own injunction, by my interpretation of the injunction, "the DVR functions" refer to the DVR functions discussed in the trial, though not as explicit as the Foontprint2.0 case, still will hold on its own. And by such interpretation, the judge does not find DISH in contempt because the DVR functions now, are not the same as the DVR functions then, one is based on the software that no longer infringe, one was based on the software that infringed, just like that Footprint 2.0 case.
You only choose to ignore my interpretation, that is all. But that is fine. You don't have to give a damn about my interpretation.
But getting back to the new concept you just raised, can a judge modify his own injunction? Guess what the answer is yes, he actually has the power to modify his existing injunction, especially when, due to changing circumstances, the original injunction would have apparently prohibited acts that do not infringe on the patent, which goes against the uniform standards, even the Tivo fans do not seem to dispute that.
Just that they are all saying, that is just too bad, the judge had his injunction written this way, he will just have to rule a contempt without any other option.
Which is incorrect, the judge does have another option, that is to modify his own injunction when he sees compelling reasons to do so. He does have the power to do so.
I am not saying he will, I don't even think it is necessary with my interpretation of his injunction, but the fact is it is not "too bad no other choice", not true, there is another option actually exists.
And what procedure needs to occur in order for the judge to consider a "modification" to his injunction order?
Not really ... this is supposed to be fun. Not catching the jokes and getting angry doesn't add to the fun ... neither do false accusations.
That is the SIMPLE interpretation ... and the one that needs to be respected before moving on to ask the Judge to dig deeper into the issue. The judgment that Tivo has requested is for contempt based on the simple reading of the injunction. That is where we start.
We have not seen DISH's side of the argument ... only a hint in the pre-conference filings. DISH's reply brief is due next Monday ... along with Tivo's reply brief on the replacement receiver "new placement" issue. Be patient.
Or continue repeating the same old argument over and over until this is the largest thread on the forum (the second largest just passed 11,000 posts - so you have a way to go).
Can you accept that the simple reading of the injunction as written is what nearly everyone else (including an often accused DISH "fanboy" like me) is saying? Can you say "yes" in less than 25 words?
Why should I? Because my reading dug deeper? Are you kidding me?
My interpretation is "The DVR functions" refers to the DVR functions discussed during the trial, not all DVR functions, regardless if the software upon which they rely on infringes or not.
You interpretation is "The DVR functions" refers to all DVR functions, whether discussed in the trial or later popped up in some other non-infringing form, all of them, any DVR functions at all.
And you really believe your interpretation is a "simple reading" and mine is "digging deeper"?
And please you Tivo fanboys don't use that (i.e. disable all storage and playback...) as your proof, to mean all DVR functions, no that does not prove it.
I will give you an example, I have a birthday party during which three kids left to finish their proscribed salad in their plates. I tell one kid look you need to finish the salad offered to you, i.e. all of the salad, every bit of it, before you may leave the table and play.
The above i.e. clarification most certainly does not mean the use of all means he must eat all salads, whether in his plate, or in the other two kids' plates. No the word all after the i.e. means all of the items in the specific plate described--his plate. He dose not have to eat other's salad, only his salad.
The i.e. statement can clarify the original statement, but not change its meaning, from the DVR functions, to all DVR functions, the all in that i.e. statement, refers to only all the specific items that performed in the DVR fucntions described during the trial.
Any reasonable person will agree my interpretation of "the DVR functions" is more simplified, and your interpretation of the same term is over-reaching, a little too much digging.
If his injunction, on its face, will have prohibited acts that are not allowed to be prohibited by law, in an injunction of infringement.
Modification of an injunction happens quite often, rarely to do with any procedural needs, rather due to change of circumstances.
Again, I am not saying this will happen in this case, because it is my belief there is no need to modify the injunction, DISH is not in contempt on the face of the injunction because of my "simple reading" of the injunction. You don't have to agree of course. But below is a case where change of circumstances merited the denial of a contempt request, and modification of an injunction:
The reason as cited by the judge for such outcome was because the infringer's act, after the injunction was issued and went into full force, was deemed a legal act. As a result, the language of the original injunction was modified to exclude such legal act.
I hope we all agree that if DISH can prove the new software no longer infringes, the act of downloading it on to the DVRs, any DVRs for use, most certainly is a legal act. Again it has nothing to do with what the injunction says, as long as the act itself is legal, and if the injunction appears to prohibit such legal act, then the injunction should be modified.
I believe the intent of the injunction was for ALL of DISH's DVR's to be deactivated. Those listed specifically were all the DVR's that DISH had at the time of the trial (Except the DISHPlayer).
In other words, for DISH to get out of the DVR business all together. The Judge will come down hard on them. I hope TiVo shows mercy on them and still offers a licensing agreement.
I don't believe that's it at all (just my opinion).
I believe the first part of the injunction referencing rule 65(d), mentioning the "Infring Products" those only colorably different, and referencing the infringement. This seems to the customary way an injunction is written. DISH has every right to design around the patent for new products. TiVo also has the right to bring a contempt motion if DISH introduces a new DVR that TiVo believes is only colorably different.
The next paragraph that specifically turns off DVR functions for existing receivers is, I think, the most important one for TiVo, and the one that DISH most needs to deal with.
But I certainly don't believe the intent was ever to have DISH get out of the DVR business.
From the linked court opinion, first paragraph, last sentence:
There is procedure in the linked case. Where's DISH/SATS motion to modify the injunction?
This is really funny. You're interpretation is simplified, and ours is over-reaching and too much digging? Hilarious!
Please go back and see how many words you just posted trying to contort the meaning of the word "the" into something it's not. And you say this is the "simplified" interpretation. We should get together and do a "who's on first" routine :lol:
First off we haven't seen DISH's motion yet. Secondly I personally do not think DISH has to motion such yet.
The above link serves to only dispel the false notion that once an injunction is in full force, too bad, tough luck, too late, sorry you poor loser...
The judges know their injunctions can not prohibit acts that the law says they can not prohibit. In the event their injunctions appear to do just that, prohibiting acts that do not infringe on the patent, it will be their duty to ensure such does not happen. One way of ensuring it is to modify their own injunctions, like the above case.
That is all the purpose of my above case law was serving, to let you know there is no such thing as it is too late to act within the legal means, it is never too late to behave in a proper and legal fashion, in a civil case.
As long as DISH pays the necessary damages for the past wrong doing, and proves to the court they no longer continue to do wrong, DISH is and should be free to do the things that are legal and proper, unless somehow it can be found later those things are not the case.
Tivo will not be deprived of its rights if DISH is found not in contempt, Tivo will have its day in court to prove the new software is still infringing, if it wants to, just like the MAC case Curtis52 cited when the Circuit Court rebuffed the patentee's argument that if the infringer was not in contempt, they would be wronged by the court.
So the answer is no. Remainder of post unread.
One of the things I learned a long time ago in debate was to try to understand both sides of an issue ... and be ready to argue either. Fortunately here we get to choose our own sides ... but limiting oneself to accepting only one side of the argument doesn't make anyone a winner.
I'll give you the benefit of the doubt on this...
I have stated over and over and over again that in order to get the "Infringing Products" off the injunction, one party has to do something. That party is DISH/SATS, which has to file a motion with Judge Folsom's court for a modification of the injunction.
If "case law" were so clear that the injunction should not prohibit the "disable DVR functionality" section of the order, why is DISH/SATS pending motion addressing a modification of the injunction for the Advanced Exchange Program? If this was such a slam-dunk case, why hasn't DISH/SATS filed that motion addressing the DVR functionality?
Maybe it is because Judge Folsom's act is quite legal.
Do they? How do you come by that opinion? The Judge just said that the boxes were to have NO DVR functionality. Period. And EVEN IF that is the case, what are these specific DVR functions?
Says who? E*? Lets clarify this again, because you seem confused. E*'s products performed operations combining BOTH software and hardware that infringed on TiVo's patents . Replacing the software does not mean they have changed the operations (which still combine software and hardware).
Also, its irrelevant to a contempt hearing that is not going to discuss technical issues. This contempt hearing is simply to discuss the fact that E* disregarded a clear Court Order.
This is the reason this topic is on its way to 4000 posts in the next month:
This is baiting. I don't think "any reasonable person" would interpret this statement like you have:
The "i.e." is the clarification of the term, and works just like "Infringing Products", which can simply be interchanged with the eight adjudicated models.
There are no conditions attached to the type of DVR functionality, other than to disable all storage to and playback from a hard disk drive of television data.
This injunction by making the simple, equivalent replacements reads:
Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable all storage to and playback from a hard disk drive of television data in all but 192,708 units of models DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942, that have been placed with an end user or subscriber.
It should also be pointed out that DISH told the appeals court that three million innocent families would lose DVR services if it did not get a stay during appeal.
So DISH knows exactly what the injunction means.
It's getting warm in here. Any objection to a one week cooling off period?
Close the thread (with no new thread) until the next round of actual filings?
It seems that we're getting nowhere at the moment except further entrenched.