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Discussion in 'General DISH™ Discussion' started by Curtis52, Jun 2, 2009.
I don't see in the citation I provided where any terms were replaced.
The quote you provided above is what I had earlier described as “the only instance where TiVo actually addressed the term ‘Infringing Products’ separately.” This is not one of TiVo’s many citations of the “disablement provision”.
Read the rest of TiVo’s brief you will notice TiVo cited the “disablement provision” many times to support their various other contentions, and without exception, they have replaced the term “Infringing Products” plainly visible in the “disablement provision” with the new term “adjudicated units”. That was why I said TiVo seemed to agree with me now that they should have proposed the term “Adjudicated Products” instead of the “Infringing Products” in their injunction.
It is one thing to read parties’ filings then agree with them, it is another matter all together when I had made some arguments that the parties failed to use before, only then to read their later filings to discover that the parties had began to address the similar issues/arguments I had thought of first.
In E*’s case, I had over a year ago argued since the new design did not parse “audio and video data” in the first step, therefore it could not “temporarily store” such “audio and video data”, therefore there could not be a “source object” to “extract” such data from such temporary storage location (since it did not exist), therefore the “source object” could not “convert” such data into “data streams” and could not “fill” the “buffer” with such “data streams”. As a result the whole thing should fall apart.
E* only began to use the same argument during their most recent appeal. They could have used such argument during the 2/09 hearing, things might have been a little different. Similarly, I had said a long time ago, had TiVo put the term “Adjudicated Products” in the injunction rather the “Infringing Products” things could have been a little easier for them too.
Do not blame the other party, or the legal system, or the judge, for things one had failed to do correctly or wisely in the first place. This it true for both E* and TiVo.
Now let me climb down from my pedestal and explain why I used the words “a little different”. In reality, things might not have been that different at all, because I believe Judge Folsom had his mind already made up, he tried for years to coax both parties to settle. It had been obvious Charlie was the one who refused to settle, so he wasn’t going to let him off the hook so easily. Even if E* had made some better arguments he would not have cared.
Likewise, even if TiVo had thought about the complication the term “Infringing Products” could bring, and was wise enough to propose the term “Adjudicated Products (or Units)” instead, E* would have objected to such term, or failing that, appealed the injunction to the appeals court, because E* knew at that time exactly what they wanted to do to get around the injunction.
If Judge Folsom was guilty of doing this - he should be REMOVED from the bench (and maybe the Bar) immediately (if not sooner). A clear abuse of judical discretion.
Therefore - I have my doubts that this was happening.
Abuse of discretion happens all the time, carries no penalty.
Sort of like "defamation of character" on the internet.
There is a reason to refer to adjudicated units. They aren't necessarily the same thing as Infringing Products.
Not all Infringing Products are subject to the disable order. The injunction only states that the Infringing Products already placed in homes require disabling. Those are the adjudicated units. Precision requires language that distinguishes the already placed Infringing Products from the newly sold Infringing Products.
It should have the most severe penalty - I wouldn't consider death sentence too severe for a judge who was favoring one side over the other in a dispute.
Such as the fact that Infringing Products were sold after 8 September 2006. Those were not subject to the disable order.
Besides, TiVo is trying to hammer home (just like during the contempt proceedings) that it is all about the disable provision.
Are you saying the Infringing Products still stored in the warehouses at that time were not adjudicated units? Besides, TiVo only replaced the term "Infringing Products" with the term "adjudicated units". They did not replace "Infringing Products placed with the end users" with "adjudicated units." As an example:
In any event, even if TiVo had been as sharp as you do, simply plugging out a key term from the order, injecting a different term in its place, is such a blatant and yet stupid distortion of the plain language of the order, I don't know how TiVo expected not get caught.
Of course they were, as long as they were with the end users at the time the injunction became effective. On the other hand, for some of those that were sold before 9/8/06, but were no longer at the end users at the time the injunction was reinstated, they should not be subject to the disabling provision. Regardless, by the plain reading of the order, they must be "Infringing Products" at the time the injunction took effect to be subject to the provision.
Calm down scooper There is a reason it is called "abuse of discretion" not "abuse of power". There is actually at least one very good reason behind it with the Federal Circuit (the appeals court).
The federal courts at different levels of hierarchy serve different functions. At the first level, the district court judges have a stated goal to encourage parties to settle rather to have the court to settle for them, therefore saving court economy, among other things. It works probably 99% of the time. To do so the district judges must be given wide latitude in exercising their discretion. Such wide latitude is expressly allowed by the Federal Circuit.
On the other hand, the Federal Circuit is operated by much more strict standards, the appeals court does not exercise discretion when it makes decisions on appeals. For that remaining 1% of the cases, their job is to ensure the district court decisions conform to the uniform standards while at the same time they decline to impose the same standards on the district courts.
That is not to say the district courts should not try to conform to the standards, only that the district judges have much wider latitude than the appeals court judges. It is like a father and his sons. The good father must set a higher standards for himself for the sons to follow, at the same time, he must not demand the sons operate at his level, while the expectation is by showing a good example, the sons will follow the same rules, it is still expected that from time to time the kids may crap out, and that is ok, especially when there may be good reasons for crapping out.
Of course the above is my layman's rant, don't get too upset if I was not right on mark
We're going to have to agree to disagree -
I firmly believe that ALL judges should be performing like they are on the Supreme Court - or even higher standards. "Justice should be blind" , and all that. Or the courts shouldn't be in existence at all.
Just like no man is above the law - neither is any judge or any elected official.
Here is the key, abuse of discretion is not abuse of justice. The counter argument is, part of serving our justice is to encourage parties not to sue each other, not to rely on litigation. Most people already believe we have too many litigations and they are not good for the society over all. Although in reality as I said 99% of the litigations end up resolving on their own or with some assistance of the court.
But people only read those 1% and believe that it is widespread, everyone is suing everyone else. Regardless the misconception (though I agree too many litigations already), I assume we can also agree it is a good thing that if it turns out 99% of the litigations ends with settlement out of court or with some assistance of court without consuming too much tax payer's money? If so then that is part of the justice we can all appreciate.
One part of the district courts' functions is to serve such justice, and leave the remaining 1% for the appeals courts, which do not serve that specific function.
I could be incorrect about this...
I was under the assumption a "stay" simply means a delay of enforcement. So although the injunction did not become active until 18 April 2008, the directive in the injunction was that 30 days after issuance of the order the DVR functionality in the "Infringing Products" must be disabled. What happens to those sold on day 31?
I guess if I dive into it long enough I'd agree with you, jac.
However, what happens to those DP-625's that were sold and activated only the newer software? They are obviously on the face an "Infringing Product" because it is a listed recevier, but as StarBrite said, they aren't the same as their internal formulation was different.
So I am guessing because there wasn't a change in model number, TiVo does need to point out the differences between the adjudicated DP-625 (subject to the original disable order) and the modified DP-625, which would not be, although I believe both could be defined as "Infringing Products" simply because of DISH/SATS nomenclature.
But as I said, it easily appears TiVo is simply telling the court over and over again these are the "adjudged units" which are subject to the disable order. It is a bold reminder that these units have been before this court.
That is fine if that is what you believe, but those who created our federal court system didn't share your beliefs.
Which is why I'm ALWAYS disappointed whenever I have to deal with the joke of our court system.
The court needs no reminder because E* never tried to tell the court the "adjudicated units" were not adjudicated units, nor that the adjudicated units were not subject to the order, only that after the modification, those adjudicated units were not "Infringing Products" any more, since the order was very specific about one narrowly defined type of units, else it should never have used that term, therefore E*'s current units are no longer subject to the order.
TiVo realized the implication, that was why TiVo tried to hide that term when they evoked the provision time after time. There would be no need to hide it were there no implications.
Why? Echostar already brought the question before the judge and he DID NOT TELL THEM THEY WERE NOT ALLOWED. Now, where I'm from, that's called a one question IQ test.
Now he's saying Echostar can't create new imaginary devices in the same shell. It's a bit like saying that Echostar is in contempt if they use a hard drive in a 510 in a toaster- sure, you can get there from reading the injunction if you interpret it like the bible. However, it flies in the face of reason. Arn't judges held to a reasonable person standard?
Its still the best in the world. The problem more than how we encourage judges to judge is that jurors are inherently unqualified to deal with complex legal issues.
Yeah.... Which ones are you comparing it with?