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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. James Long

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

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    Scenario:
    Imagine if the infringer used the last two years to physically recall and replace every "Infringing Product" with completely new models. The customer had no gap in service and only minor inconvenience as they swapped receivers (perhaps even including a service call to transfer content from the old DVR to the new). The infringer has no gap ... the customer remains "sticky" and there is nothing the plaintiff can do except file a new suit against the new product or pray that the court sees the new receivers as only colorably different.

    There is NOTHING in the injunction requiring there to be a service gap. There is NOTHING in the injunction requiring DISH to lose customers. If Tivo can't "catch up" to DISH that is their problem. They should have got an injunction requiring DISH to "cease offering DVRs for a period of one year". Tivo didn't get that injunction.

    So we're back to arguing the difference between physically replacing receivers in the field with non-infringing product or 'virtually' replacing them. If it would be OK with the injunction to physically replace every receiver it should be OK with the injunction to virtually replace every receiver. It is just a matter of opinion.

    It depends on how the judge interprets their own order. :D
     
  2. nobody99

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    This brings up two questions:

    1) So why wouldn't the judge have explicitly have allowed replacing the software in the injunction. jacmyoung has gone out of his way to explain how judges choose their words very carefully, and that we should give them credit.

    2) Why wouldn't the judge have said "you won't need to physically replace the receivers if you put new software on them" when DISH used that as a defense against "“would immediately remove DVRs from three million families who are innocent of any wrongdoing"
     
  3. kmill14

    kmill14 Godfather

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    What you say at the top is true...Dish could do that and avoid contempt charges. And you are also correct in that there is nothing in the injunction requiring Dish to lose customers.
    But the basis for the "disabling of the DVRs in the field" being in the injunction has nothing to do with the fact that Dish can do so via a software download (as jacmyoung argued) and everything to do with the harm Tivo endured and the stickiness of customers and puts TiVo at a serious "disadvantage and results in long-term customer loss" (Folsom).
     
  4. nobody99

    nobody99 Icon

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    Why would he not have mentioned that they could also upload non-infringing software?
     
  5. James Long

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

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    The judge is not a technical person ... he saw "hardware" and "software" claims and despite DISH's requests to write the injunction allowing for a software change he wrote what he wrote, probably believing hardware could not be fixed by software. Judges error.

    The judge isn't there to debate the parties, he is there to decide who wins the debate between the parties. That would have been an excellent comment for Tivo to make, not the court.

    If it were up to the judge to debate the parties his first question on May 30th of DISH would have been "so, have you turned off any of the DVRs in the injunction?" He didn't ask that. Tivo didn't explicitly ask that either (they wanted "discovery" to go fishing for the answers ... not a direct question).

    A simple question would have been better. But that's not how courts operate. :)
     
  6. Greg Bimson

    Greg Bimson Hall Of Fame

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    I notice the people arguing on DISH/SATS' side doing this all the time.

    Nothing has been replaced with "non-infringing product". A DP-501 according to the courts today is no different than it was two years ago, when it was found to infringe. A DP-501 in the customers hands for the past four years has been determined to be infringing and is subject to an injunction.

    Yes, there was software downloaded, which modified the product. NO, that does not simply mean it is "non-infringing product", as that determination has not been made yet.
    The technology isn't there to simply replace existing DP-501's in the field by saying "Beam me up, Scottie". :)

    It isn't that it would be OK with the injunction to physically replace the "Infringing Products", it is that DISH/SATS has that ability. The DP-501 isn't changed to something else by changing the software. And that, in a nutshell, is the problem.

    No matter how much we get into discussing the new software, the order is fairly clear: disable the "Infringing Products", for the length of the Time Warp patent.

    And just so no one thinks I am one-sided about this...
    This is 100 percent correct, provided the new DVR NEVER had infringing software. This is exactly what DISH/SATS should have done since they didn't bother addressing the scope of the injunction with the Court of Appeals.
     
  7. James Long

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

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    So goes life. I'm sure the boatload of money Tivo will eventually receive for past infringement will sooth that disadvantage.
     
  8. James Long

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

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    The courts need to be corrected. DISH lawyers are standing by. The day that they say "you're right, a DP-501 isn't the same as a DISHPlayer DVR-501 because of the software differences" Tivo will be in trouble.

    DISH is doing as close as they can to that with the software. :D
     
  9. kmill14

    kmill14 Godfather

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    I have to say that this has been a lot of fun to "discuss" and thankfully I am seriously late to the conversation or we would be over 100 pages by now in this thread.

    I assume TiVo's filing will come at some point tomorrow, and that will spice things up even more.
     
  10. jacmyoung

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    Not so, if the DVRs will always be within the scope of the injunction, they will have to be destroyed, put in the landfill, but this is not the case, they only need to have the DVR fucntions disabled, once they do they will be allowed to continue, as they will no longer be in the scope of the injunction.

    So yes, the judge certainly recognized DISH's ability to use a software download to modify, not to destroy the DVRs, but to modify them, and turn them into something that are no longer within the scope of the injunction. As long as DISH is done that, DISH will be in compliance.

    Except that DISH did it a little differently to use the same method, and equally to modify the products, to move them outside of the scope of the injunction, a way that the judge did not prohibit DISH from doing.
     
  11. jacmyoung

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    There is rarely any injunction that spells out how the infringer may be permitted to workaround the patent, it is not the job of an injunction to do that. Occasionally you may find one or two actually did so, but for the vast majority of them there is no need, and the infringers avoid contempt all the time without any methods spelled out for them.
     
  12. Curtis0620

    Curtis0620 Hall Of Fame

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    They can still be used as standard satellite receivers (No DVR functions).

    DISH has done nothing but download a software revision. Until it has been ruled that the software doesn't infringe, then it still does.

    And if it does, DISH's other DVR's will be killed also.
     
  13. jacmyoung

    jacmyoung Hall Of Fame

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    But if he actually stopped hitting, should he continue to be punished?

    Regardless though, one simply can not use any other types of injunctions and try to fit the injunctions in a patent case. One must only look at the injunctions/contempt rulings issued in patent cases as guide.
     
  14. kmill14

    kmill14 Godfather

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    :beatdeadhorse:

    You've got to be kidding me! The scope of the injunction is the 8 models of DVRs we are intimately aware of now, and the order to disable those DVR models that are in the hands of the end user. There is no such language (or prior case history) that allows for these specific adjudged devices to fall outside the scope of the injunction.
    If Dish wants to gather up the DVRs in these households and put them in a landfill, thats all well and good, but the order just says to disable them. If they aren't disabled at some point in the future, then they are not in compliance with the injunction.


    :beatdeadhorse:
     
  15. jacmyoung

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    I hope you understand what you just said has nothing to do with the point I am making, that the judge did agree so ordered, by a software download, the products within the scope of the injunction may be taken out of the scope and continue as standard receivers.

    Here we are not arguing about DVRs or not, only that whether the judge have told us whether by downloading a new software it is possible to take the products outside of the scope of the injunction, the answer is a clear yes, otherwise the judge would have ordered a different method, like asking all DVRs be shipped back and physically destroyed.
     
  16. jacmyoung

    jacmyoung Hall Of Fame

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    Stop being so dramatic, what you need to do is tell me whether DISH will be allowed to use the products to continue to provide TV service, while not having the DVR functions. I hope your answer is yes.

    And by answering yes, you have just agreed, by downloading a software, the products within the scope of the injunction can be taken out of the same scope of the injunction and continue to be used, because if not the products will not be able to be used at all.

    That is all we are debating at this right moment, whether the judge himself thought the act of downloading a softeware was a legitimate way to modify the products so to move them outside of the scope of the injunction.
     
  17. James Long

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

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    It isn't that easy. The "disabling of DVR function" software update is specifically permitted by the injunction. Apparently someone thought of that.

    I like that because it ALLOWS the product to continue to perform a function. Combine that with the lack of a blanket prohibition of DISH providing DVR service and we've got room for the judge to interpret.

    It needs to be narrower than that. The question is whether a software change is enough to satisfy the judge. A question the judge himself said would be answered in September.
     
  18. kmill14

    kmill14 Godfather

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    Where did the Judge say that? So once a person is found guilty (adjudged) and ordered to go to jail, they are no longer guilty or adjudged because they are in jail...and well...can leave jail?


    Honestly...:nono:
     
  19. Greg Bimson

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    That is not correct.

    A DP-501 is in the scope of the injunction until the injunction expires, which is when the Time Warp patent expires. A DP-501 can most certainly have its DVR functions turned back on after the injunction expires.

    Therefore, the DP-501 (and the rest of the "Infringing Products") are subject to the injunction until the injunction expires. They will never be out of scope of the injunciton, unless there is another order from the court that takes the "Infringing Products" out of scope.
     
  20. kmill14

    kmill14 Godfather

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    Thats correct. So far you are making sense.

    And then sense goes by the wayside. How did I...or more importantly...the Judge...agree that a product specifically identified in the injunction to do a certain thing (disable DVR functionality) can cease to be that product specifically identified?

    ALL products identified in the injunction (the 8 models) that are in the hands of the end users are ordered to have NO DVR functionality. Thats the scope. Thats all there is. They can receive TV signals in play them in real time, but they can't do anything else with those signals. They can't later receive a DIFFERENT software update that enables DVR functionality, because that goes against the order of the injunction.

    Which part of that paragraph makes no sense to you and is not supported by the injunction?
     
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