TiVo vs Echostar ... June 30th-July 18th Filings

Discussion in 'General DISH™ Discussion' started by James Long, Jun 30, 2008.

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  1. Jun 30, 2008 #1 of 2438
    James Long

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

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    Previous discussion can be found here.
    Please be kind to one another as the discussion calmly continues.


    Two filings today (June 30th) ...
    1) "Sealed Response to Motion" ... it looks like DISH's response won't be available to us.
    2) "Response in Opposition to Motion" ... Tivo's response to the Interpretation issue (DISH's request that repair replacement units not be counted as new placements).

    I have attached the Tivo Response as it is not under seal. Enjoy!
     
  2. Jul 1, 2008 #2 of 2438
    Greg Bimson

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    I'm trying to understand why DISH/SATS filing is sealed. DISH/SATS must be arguing something regarding subscriber numbers. Or, DISH/SATS is arguing new software. The new software argument, of course, could be used by TiVo to get the Delaware suit dismissed.

    Maybe we'll see part of DISH/SATS response when TiVo gets a chance to counter it.
     
  3. Jul 1, 2008 #3 of 2438
    jacmyoung

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    Likely the sub numbers.

    As far as the replacement deal among the 197,000 units, I thought DISH has been replacing the 9xx's with 622s' for defects? They can easily do so similarly with the 722s'. Why even waste time on this one on both sides? Another "distraction" from DISH?:)
     
  4. Jul 1, 2008 #4 of 2438
    Greg Bimson

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    Well, we do know what is attached to the response:
    Dan Minnick is a VP of Engineering at Echostar.

    DISH/SATS is arguing the new software, and does not want the details of this new software out.
     
  5. Jul 1, 2008 #5 of 2438
    CuriousMark

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    That seems more likely than sub numbers to me. It is also more in line with the statements they made at the status conference.

    They obviously feel that argument will get traction with the judge. I am sure TiVo's response would also be very interesting, but if they address anything in DISH/SATS brief, then TiVo's response will also most likely be sealed.

    It is too bad that we will have to wait so long to find out what it all means.
     
  6. Jul 1, 2008 #6 of 2438
    scooper

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    I would have to strongly agree with Greg on this point.

    How it will play before the judge - I do not even know where to guess.
     
  7. Jul 1, 2008 #7 of 2438
    Greg Bimson

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    I'd also bet that it is sealed so that TiVo has a more difficult time using it to dismiss the Delaware case.

    So, I'd expect that TiVo's reply in Delaware will also be sealed.
     
  8. Jul 1, 2008 #8 of 2438
    jacmyoung

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    I agree with you Greg too, if the new software is a major issue in the DISH motion. If so then the likely DISH's approach is to demonstrate to the judge that their curernt acts are legal and non-infringing, as such the standards in such cases would not allow a contempt finding.

    I know you disagree with me, but this is precisely what DISH should go for, they have so many uniform opinions from the Circuit Court to back that argument.

    The case below though not a patent issue, it dealt with a similar civil contempt of an injunction, in which the "spirit" and "letter" of the injunction were discussed:

    http://www.mtcwatch.com/pdfiles/4-03_TCM2_ContemptDenial.htm

    "A district court may find a party in civil contempt if the following four elements are satisfied: (1) violation of a court order, (2) beyond substantial compliance, (3) not based on a good faith and reasonable interpretation of the order, (4) by clear and convincing evidence. Id. "If a violating party has taken 'all reasonable steps' to comply with the court order, technical or inadvertent violations of the order will not support a finding of civil contempt." General Signal Corp., 787 F.2d at 1379 (citation omitted). All ambiguities in an order for injunctive relief must be resolved in favor of the party subject to the injunction. Clark v Coye, 60 F.3d 600, 604 (9th Cir. 1995). A district court's finding of civil contempt is reviewed for an abuse of discretion. Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990)."

    Also:

    "As the foregoing analysis suggests, MTC cannot be held in civil contempt for violating the letter of the injunction. The prior statements about the ambiguity of the "expected ridership gains" language notwithstanding, the Court notes, without so finding, that MTC's interpretation of the disputed portion of the injunction might indeed violate the spirit of the Order. When the injunction was issued, the Court expected MTC's estimate of "gains" to be something more akin to Plaintiffs' suggested incremental approach. However, the Court sees little value in ordering MTC to revise the RTP Amendment. As noted above, MTC's interpretation is reasonable in light of the overall boardings target the agency must achieve. Moreover, from a practical perspective, whatever harm MTC's alleged error might have cause is minimized by the fact that, because the injunction does not contemplate further amendments to the RTP, this issue will not arise again. Finally, the Court is not persuaded that Plaintiffs' suggested approach - the contours of which are not entirely clear - is so superior as to justify the expenditure of resources that revising the RTP Amendment a second time will inevitably entail. In sum, Plaintiffs have not shown that MTC's efforts to comply with the Order are so flawed as to justify a finding of civil contempt at this time. Similarly, Plaintiffs have failed to demonstrate that there exists just cause to order MTC to further modify the RTP. As the Court now declines to hold MTC in civil contempt, there is no basis on which to impose coercive or compensatory sanctions. See United Mine Workers, 330 U.S. at 303-304."

    In the above case the defendent was deemed in violation of the letter of the injunction, as argued by the plaintiff, and in violation of the spirit of the order, as noted by the court, but since the overall goal was met, there was no contempt.

    The question then becomes what is the goal of the injunction in this case? If you believe it is punitive in nature, you can disregard the above example. If one believes the injunction is to prevent future infringement, the above example is useful.
     
  9. Jul 1, 2008 #9 of 2438
    Greg Bimson

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    I will even agree that most of your arguments are probably in DISH/SATS motion. I just don't believe those arguments will hold much weight, and that is not an attack on your position. DISH/SATS legal counsel is trying to mount as much of a vigorous defense as they can, which is also what you've been trying to do.

    Now I personally think that DISH/SATS made a big mistake. From what I recall, TiVo now gets to interview Dan Minnick regarding his deposition. DISH/SATS just opened the door to the new software, and DISH/SATS will have to answer questions about it.
     
  10. Jul 1, 2008 #10 of 2438
    CuriousMark

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    Does Mr. Minnick have any patents to his credit?

    [EDIT]Never mind, he is the inventor of the Dish patent that describes the workaround[/EDIT]
     
  11. Jul 1, 2008 #11 of 2438
    James Long

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    Sometimes you have to go "all in" to win the pot.

    It is a shame we have to speculate about the content ... I wouldn't mind a redacted version but that isn't the purpose of the filing system. I agree the the filing most likely focus solidly on DISH not infringing now and when they ceased infringing.
     
  12. Jul 1, 2008 #12 of 2438
    jacmyoung

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    You apparently had not read some of my posts regarding my position on this issue. I would have preferred DISH and Tivo cooperate to have the commend of the DVR market, I said before both DISH and Tivo despite their animosity shown in this case, are more like-minded companies than cablecos and DirecTV, in that they both cater to the end users’s needs more so than to the pleasure of the networks and movie industry.

    As it stands now, Tivo is forced to focus on how to collect and sell the end users’ viewing information in order to survive, and DISH of course will have to pay the big damages. In fact when the judge denied Tivo’s request for attorney fees and treble damages from DISH, one of the main reasons was Judge Folsom was equally critical of both parties in their conducts during this trial, which has set several records on the number of motions, counter suits, and time spent by the court. Yes Tivo was equally at fault according to the judge.

    But it is not up to us to say if DISH should rigorously defend itself or not. You may think I am rigorously defending DISH, I am only displaying what I have learned from the prior cases and the court opinions to support my own speculation that DISH will not be in contempt of this judge’s order, and that has been my only argument all through, no more no less.

    BTW, DISH never tried to avoid the new software issue, they always wanted to make it an issue, they voluntarily gave Tivo some of the limited new software codes, they spent most of their time in their motion before the 5/30 status meeting describing their new software and why it no longer infringed. It was my speculation the DE filing was to force Tivo to begin discussing the new software in front of Judge Folsom, sooner than later.

    So the fact DISH is again focusing on the new software in this latest motion is no surprise to me and I don’t think they are going down a new and dangerous path, if it is a dangerous one, at least not a new one, but one DISH has always wanted to go down.

    The new software is the only thing that can save DISH.
     
  13. Jul 1, 2008 #13 of 2438
    Curtis52

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    Fact? I didn't think anyone had read it.

    ...and it wasn't a motion. It was a reply.
     
  14. Jul 1, 2008 #14 of 2438
    Mainer_ayah

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    Does anyone here think that Dish can address the software and stay non-technical enough to have told the judge in the 5/30 conference that the court need not retain a technical consultant because they agreed that the subject of discussions would revolve around only points of law?

    I don't. I think this should answer the question of how the court might react to Dish bringing up the software switcheroo. (If there even was one).

    -Mainer
     
  15. Jul 1, 2008 #15 of 2438
    jacmyoung

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    The fact that Greg speculated such high probability that most agreed? Getting restless about my choice of words again Curtis? You should know by now not to take my words seriously:)
     
  16. Jul 1, 2008 #16 of 2438
    James Long

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

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    It's not about you ... it's about Tivo vs Echostar and the lawsuit.
    :backtotop
     
  17. Jul 1, 2008 #17 of 2438
    Greg Bimson

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    I'll agree with you, mainer. It's the problem mentioned in the old thread: this is truly the "chicken and egg" argument.

    DISH/SATS, if the theory is that their response discusses the new software, is trying to argue "the spirit of the law". DISH/SATS feels that changing the software on the "Infringing Products" affords them to bypass the injunction as written. TiVo is simply trying to argue a point of law, which states simply to disable the "Infringing Products".

    It is that darn "procedure" thing I've brought up before. Procedurally, the software doesn't even have to be looked at in this proceeding:
    Yet DISH/SATS had conceived this plan for new software while the injunction was being written in August 2006, argued in front of the court that the injunction as written should not disenfranchise three million Dish Network DVR customers, and never informed the courts that they may have found a way to make adjudicated "Infringing Products" non-infringing until 23 May 2008, after the injunction was in full force and effect.

    Last I recall, one follows the rules of the Court, not whatever one party wants to do.
     
  18. Jul 1, 2008 #18 of 2438
    jacmyoung

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    Yet none of such was against the law. You have bought into Tivo's notion that by not volunteering all the information, or arguing for argument sake, it proved DISH's pattern of deceit, one only needs to look at how successful Tivo was in demanding DISH to pay treble damages and attorney fees, when they used precisely the same line of logic, that DISH behaved very very badly.

    Remember what the judge response was? DISH was only exercising their legal rights, and where DISH went over board, so was Tivo, Judge Folsom basically was saying they two both deserved each other. Such sentiment was shown in the 5/30 status meeting, when the judge said you two just couldn't agree on anything, despite the fact the judge had tried so hard within his power to get these two to settle, meaning to agree on something.

    What are the chances Judge Folsom will stick his neck out, go against all the standards put forth in the patent infringement/injunction cases, and try to favor one party over the other, when he could care less about either one of them.
     
  19. Jul 1, 2008 #19 of 2438
    kmill14

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    jacmyoung, during my break, I was able to dig up a few more things for you to chew on. Are you aware of prohibitive verses mandatory injunction orders?

    I imagine Dish will continue to go down the road that this new software has caused the products in question to cease infringement. However, "non-infringement" is only relevant in the first order:


    This wording is pretty much the same as every other injunctive wording out there, and is defined as a prohibitory injunction.

    But the 2nd order is not to "prohibit"...its a mandatory injunction, which has the goal of undoing E*'s prior act of stealing market share unfairly from TiVo.

    http://www.state.hi.us/jud/24857.htm
     
  20. Jul 1, 2008 #20 of 2438
    scooper

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    Since when did a state court ruling have any bearing on a Federal court ?
     
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