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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. May 27, 2008 #681 of 2549
    jacmyoung

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    Except you do agree the Infringing Produsts might be later found not infinging products, the possibility does exist?

    Because according to Greg, even that is not possible, once a prduct is detemined an infringing product, no modification can be done to make it non-infringing.

    If this is what the court believes and interprets, then yes I have no argument on that. The case law time after time however pointed to a different direction.
     
  2. May 27, 2008 #682 of 2549
    dgordo

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    Yes, but he said that the court never gave permission to turn them back on.

    He said DISH needs to turn them off and then seek permission to turn them back on with new software.

    Again, this is just his opinion.
     
  3. May 27, 2008 #683 of 2549
    jacmyoung

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    Not true at all, the sole purpose to shut down those Infringing Products right before the injunction took effect, and replace the old-infringing software with the new, different software, was so the Infringing Products no longer existed, replaced with the new DVRs.

    It was absolutely a willful act to comply with the injunction, that is to shut off the Infringing Products, and "continue as before" with the new products.
     
  4. May 27, 2008 #684 of 2549
    HobbyTalk

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    Ahhhh, there's the rub. If the trial would have been held any place other then this single district, would it have been found to be infringing? The experts may really have been right, the software doesn't actually infringe, just in the minds of the self-serving jury of this district.
     
  5. May 27, 2008 #685 of 2549
    James Long

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

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    That is for a court to decide.
    Yes, in the same poorly worded ("Untied States") injunction DISH is told to cease using/etc infringing products and are told they can continue to place infringing products. There must be something you are overlooking that doesn't make these statements contradict.

    Likely the DVR software ... which is the only thing, per the injunction, that the lack of makes a difference between an Infringing Product that CAN be used vs one that cannot be used.

    And unlike the distants case, there is no federal death penalty that says "if you mess up providing DVR service you can NEVER provide DVR service again". DISH is absolutely permitted to design, use and sell DVRs that do not infringe.
     
  6. May 27, 2008 #686 of 2549
    jacmyoung

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    Sounded a very good argument, but did the court always have to give permission before an infringer may begin to sell any modified devices? If you read the case law apparent not, not in even one of them. In fact the law clearly stated that legitimate workaround should be allowed so the infringer may "continue as before."

    Under what circumstances the judge would agree to let them turn back on? If there is simply no chance, then demand to ask for permission would be unreasonable, would it?

    What I am saying is, while fully respect your friend's opinion and recognize his credential, what he said did not seem to help Greg and Curtis.

    So may be DISH can ask for permission during that meeting to turn the DVRs off then back on with a new software called DVR plus v.2.0, and tell the judge the new plus v.2.0 is not infringing, what should the judge do?

    The judge will say but you must turn them off first before I even will consider your request. Good then but for how long? One day? Two days? before he will consider the request to turn them back on with a new software download? Or never?

    Assume your friend is correct, and I actually am not just saying it, he might very well be correct, did he not imply there is a chance the judge will allow it? If so then he seemed to not think the Infringing Products are "absolute", because if so the judge should never allow such request.
     
  7. May 27, 2008 #687 of 2549
    Greg Bimson

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    Oh, I doubt that is the jury's fault. I could go review what the issues were upon appeal, but it technically doesn't matter.

    Read that article I linked on the Eastern Texas Circuit.

    And if TiVo ever does get around to checking the new software and filing for contempt, and if Judge Folsom then turns around and finds DISH/SATS in contempt on the new software, then the jury is vindicated.

    Heck, the jury has already been vindicated by Judge Folsom, who could have immediately reversed the jury's verdict. The jury was also vindicated by the Court of Appeals, as the only reversal occurred because the Court of Appeals did not like Judge Folsom's instructions for finding literal infringement (the determination of infringement by the doctrine of equivalents was not given to the jury) and Judge Folsom's construction of the hardware claim (all based off of a literal interpretation of the word "a" or "an").
     
  8. May 27, 2008 #688 of 2549
    nobody99

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    Yes I fully believe that it is possible that at some point in the future the product can be found to no longer be infringing if DISH can come up with software to do it. Is it the current version? Who knows. That's for another court in another proceeding to figure out.

    And you are misrepresenting what Greg is saying. He's saying that the contempt hearing is not the place to make that determination. In the meantime, if the DVR functionality is not turned off, DISH is in contempt.
     
  9. May 27, 2008 #689 of 2549
    HobbyTalk

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    And is that any surprise?
     
  10. May 27, 2008 #690 of 2549
    Greg Bimson

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    No, but what the Court of Appeals did was, at least to DISH/SATS. The only way to avoid the injunction, because DISH/SATS didn't address it at the Court of Appeals, was to win an outright reversal of the entire verdict. There wasn't one; just a reversal on the hardware claims. That left the injunction intact, as-is. Now DISH/SATS cannot even attack the injunction as incorrect.
     
  11. May 27, 2008 #691 of 2549
    dgordo

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    I understand your questions, as I said my research has shown this can go either way and neither one of us found a single case that was fact for fact just like this case. I didn't ask many follow up questions, I just wanted to hear him talk about the case. I'm certainly not implying that he is correct, like I said, just his opinion.
     
  12. May 27, 2008 #692 of 2549
    jacmyoung

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    I agree completely, and I was not trying to dispute you or our friend. I said before this case is unique in that the products can be modified without being physically taking off the field, nor do they require any physical work done in field for modification. In that sense, yes it is hard to say how the judge wants his injunction interpreted.

    But from you and your friend, even nobody99, we appear to agree the term “Infringing Products” is not absolute, that the same DVR501… products, which were Infringing Products at the time the injunction was written, can be made into non-infringing products by installing a new and non-infringing software.

    I hope we can agree on that.
     
  13. May 27, 2008 #693 of 2549
    Greg Bimson

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    "Infringing Products" is absolute, but it is possible at a later date that DISH/SATS files a motion with the court asking that the injunction no longer apply if DISH/SATS is not infringing with new software on the "Infringing Products"

    DISH/SATS, however, has not filed, nor will any of that be heard, until TiVo has a chance to review the software. Meanwhile, "Infringing Products" must no longer have DVR functionality, and arguing that there is new software does not skirt the injunction.
     
  14. May 27, 2008 #694 of 2549
    James Long

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    Sure they can. They are back in the court of the judge that wrote the injunction. The appeals court didn't bind him from changing it. :rolleyes:
     
  15. May 27, 2008 #695 of 2549
    Greg Bimson

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    How often is a standing injunction "rewritten", or changed, or modified?

    As I seem to recall, neither TiVo nor DISH/SATS filed a request to have the injunction changed. And from what TiVo wrote, case law supports that an injunction, even with errors, cannot be attacked during a contempt proceeding.
     
  16. May 27, 2008 #696 of 2549
    James Long

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    It is good that Friday isn't a contempt hearing, isn't it?

    Something will (eventually) have to happen to that injunction to make Tivo happy ... perhaps nothing more than interpretation, but Tivo needs some work done there too.
     
  17. May 27, 2008 #697 of 2549
    jacmyoung

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    Now when you said it is absolute, then also said it may not be absolute in a later time, I guess you were saying it was absolute at the time when the injunction was written, and at the time yes the Infringing Product was absolute.

    Once the Infringing Products are installed with a new software, it is possible the Infringing Products may be found non-infirnging, if the new software is found non-infringnig.

    The question then becomes, when should the determination of the new software infringement occur? You believe it must happen after DISH file a motion to allow the discovery of such issue first, before they may even dream about trying to use the modified devices. My quesiton to you is have you EVER researched and discovered such motion EVER filed by any infringer? Ever? If so please offer the evidence, you can not simply make up a motion that simply doe not exist in the court of law.

    On the other hand, I have several cases where it was clear by reading them, that:

    "A difference more than colorable is one that gives rise to some fair ground for doubt that the modified product is within the scope of the injunction. American Foundry & Mfg. Co. v. Josam Mfg. Co., 79 F.2d 116, 118-19 (8th Cir.1935); 8 A. Deller, supra, at Sec. 736."

    If you agree that such doubt exists (since you said it is possible the modified DVRs could be found no longer the Infinging Products in a later time), then you must accept that appeals court's decision to overturn that contempt ruling, can happen here.
     
  18. May 27, 2008 #698 of 2549
    jacmyoung

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    IMHO, the judge does not need to change a thing about the injunction in order to move the case right into an "independent" proceeding on the new software infringement issue, as requested by Tivo.
     
  19. May 27, 2008 #699 of 2549
    Greg Bimson

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    And where did TiVo request a proceeding on "new software infringement" issues? I don't see one.
     
  20. May 27, 2008 #700 of 2549
    jacmyoung

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    In the part 3 of that 3-part topic.
     
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