Tivo vs EchoStar ... September 4th Hearing (w/transcript)

Discussion in 'General DISH™ Discussion' started by James Long, Sep 4, 2008.

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  1. nobody99

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    Pot, meet kettle. Wow, that's amazing, jacmyoung, you just described yourself to a "T"!!! :lol: :lol:
     
  2. nobody99

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    For what it's worth, I said it would be much harder to overturn contempt on appeal than it would be to overturn infringement on appeal.

    Your fantasy-world, jedi-mind trick translator somehow turned this into "find contempt" or "find infringement." Please pay attention. James said that DISH could appeal a finding of contempt.
     
  3. nobody99

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    I completely agree...they would be foolish not to fight this through every avenue open to them.

    I'm not so sure of that.
     
  4. Curtis0620

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    Wow. What did TiVo ever do to you.

    TiVo has a deal with Directv, so they will live on either way. The struggles for E* this year (subs, AT&T, etc.) and the low outlook for 2009, paints a very bad picture for E*. They better hope they didn't push this too far. If anyone has their DVR shut off, that will now have a much greater impact than a year ago.
     
  5. Greg Bimson

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    I'll say that you are spot-on with this assessment, as summary contempt is a bit harder to prove than finding infringement. However...
    However, I believe none of the case law used by DISH/SATS can be applied to this motion for contempt.

    Remember, according to Mr. Ergen, this is now about DISH/SATS proving they no longer infringe. Except the contempt case is not about proving infringement. And TiVo certainly doesn't believe DISH/SATS no longer infringe.
    You are missing the point.

    DISH/SATS put $97 million in escrow to pay for the damages accrued until 8 September, 2006. There is an argument now for between $16 million and $220 million for the period between 9 August, 2006 and 18 April, 2008.

    There will also be an argument for damages since 19 April, 2008. Those are damages during the period of contempt, and if found in contempt, there will be more damages piled on if DISH/SATS appeals, until the Court of Appeals rules.

    I know many have a hard time believing this, but TiVo is holding most of the cards.
    If the contempt motion is granted, Judge Folsom will issue another order compelling DISH/SATS to disable DVR's listed in the injunction. DISH/SATS counsel McElhinny asked if Judge Folsom would stay this order, and Judge Folsom replied that it would be highly unlikely he would stay his own order.

    But here is the kicker...

    DISH/SATS, to same Court of Appeals as two years ago:
    Please stay Judge Folsom's order to disable our DVR's

    Deja vu? And TiVo has a chance to respond.
     
  6. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    The verdict held up on appeal.

    Remember Charlies spiel about the "Herculean" effort to get around Tivo's patent?

    Charlie already admitted he was wrong by creating his "design around". The only reason to take it to the Supreme Court was to waste time and money.

    The only way the Supreme Court entertains this is if Chuckles put a big enough check in the envelope.
     
  7. nobody99

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    Greg, I think it's worse for DISH that this. I believe the numbers ($220 million vs $16 million) only deal with the time that the original software was still on the DVRs. So it is a foregone conclusion that TiVo will collect something for this period. Even in a best-case scenario for DISH (Judge Folsom temporarily goes insane and allows the new software), DISH will still owe money. I would suspect it would be closer to TiVo's number than DISH's. But let's just split the difference and call it $100 million.
     
  8. jacmyoung

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    Why? We are talking about 4 million DVRs counted from two years ago, at this point it will probably only be around 3 million of the same ones still connected, assume many had since upgraded or left. Why is it now more impacted?

    As time moves on the impact will be less, give it another year most of them could be all obsolete.

    What did TiVo do to me? Nothing, I have always wanted TiVo and E* to work together, I have always thought they two make the best partners.

    The deal with D*? Did you not read that D* in their most recent one-year outlook on their DVR plans never mentioned one word of TiVo? Did you not read that D* has been moving DirecTiVo folks to their own HR2x DVRs, so much so TiVo had lost over 580,000 DirecTiVo subs in the last FY and the churn is on going?

    Have you not read that TiVo had a total of 4.4 million subs at the beginning of 2007, and by the last quarter only 3.6 million left? How is the project going with Comcast? They have been saying for over a year they would "flip the switch" to roll out the TiVo service, have you heard of the switch flipping yet?

    TiVo needs to realize they cannot afford a no contempt ruling, E* is all they have got, because they have this $120 million in the escrow as leverage. TiVo needs E* more so than E* needs TiVo. TiVo's long term survival depends on E*, because they can't depend on D*, D* clearly cares little about TiVo, and they can't depend on cable, who can depend on cable anyway?
     
  9. jacmyoung

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    Let me say just one thing, if none of the case law that have been used regularly by the courts in contempt proceedings, in your view, or in TiVo's view, are relevant, then TiVo should be very concerned, because those cases all are, it is only TiVo's oppinion they are not applicable.

    Anyone who cares to read all the prior cases and knows how consistently they have been cited by the courts will have to bet against the notion that those cases do not apply in this case. This case is not unique, Judge Folsom said so when he denied TiVo's treble and attorney fees request.

    For the same reason he will deny TiVo's contempt request, because as the judge said in the above decision, there was nothing special about this case, only TiVo thought so, and TiVo continues to think this case is special, the judge will have to tell them again no this case is not special.

    There is no reason for judge Folsom to want to make this case special, he already said on 9/4 he had more important cases to tend to, this one would have to be put on the back burner. Judge Folsom sees similar cases in his court room all the time.
     
  10. Greg Bimson

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    From the 4 September hearing, just bits and pieces...

    Damages period from 9 September, 2006 to 18 April 2008
    Damages in three categories
    First category: Adjudicated DVR's (TiVo states $55M; DISH states $16M) until the new software implemented; TiVo is including lost profits
    Second category: $113M - Adjudicated DVR's with new software
    Third category: $52M - placements of the new, modified DVR's (remember that TiVo has pointed out that the modified versions of the Infringing Products still infringe, so if Judge Folsom goes the extra mile and determines the modifications still infringe then this is in play)
     
  11. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    Making stuff up again, Jacy? :(

    Could you show us where exactly Folsom said he had "more important cases to tend too" "this one will have to be put on the back burner"?

    I'll be waiting.
     
  12. Greg Bimson

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    The case law for contempt is used regularly. Using standards from KSM is only applicable when accusing an infringer of sales, use or manufacture of an infringing product not more than colorably different from the enjoined products.

    KSM has never applied to specifically enjoined products adjudicated as infringements. So the party asking for precedential and preferential treatment is DISH/SATS.
     
  13. jacmyoung

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    That is only what you say, or what you have heard what TiVo was saying.

    When the judge makes his ruling, KSM will be the case he will cite, just like all other contempt cases, because this case is not unique.

    To say KSM does not apply to this case is the same as saying this case is so unique, but the judge had already told TiVo no, your case is not special.
     
  14. Greg Bimson

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    When a judge issues a contempt order against a reporter for not divulging his source, does he use KSM?

    The MLKJr. case that TiVo quotes, Walker v. City of Birmingham, does not discuss infringement, yet it was a contempt proceeding.

    Don't act like contempt can only take one form and it must adhere to KSM. That is a large leap of faith.
     
  15. jacmyoung

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    Only if there is another person (nobody99 not withstanding:)) asking the same question will I try to quote what the judge said on 9/4. Otherwise you will just have to go read for yourself, like I have asked you to do many times in the past whenever you asked similar questions as the result of you not willing to read for yourself, or not understanding what you were reading.
     
  16. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    Cite, please....
     
  17. nobody99

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    May 20, 2008
    No.

     
  18. jacmyoung

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    I hope you are not serious. None of the above cases are related to contempt in patent cases, not to mention the Dr. King's case will be irrelevant if there is no contempt, as the judge asked TiVo's Mr. Chu, if I found E* not in violation on the face, what did that leave you? No real answer to that.

    The two cases TiVo cited (BTW I do not recall TiVo citing that reporter's case) will only be relevant if the judge finds E* in violation of his order.

    But E* will not be in violation of his order, and if so, of course both cases cited by TiVo will not be applicable.

    All post-KSM contempt rulings in patent cases with design around, all of them, used KSM as guide, that is precisely why I said don't think your case is so unique.
     
  19. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    That's my point. I have read the transcript (5 times actually) I didn't see that quote anywhere.

    Care to show us? Or should we just assume you made that up?

    PS: It is not my job to research your babbling. It is your job to provide proof when asked.
     
  20. nobody99

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    Jacmyoung, once again your jedi mind trick, fantasyland reality interpretation device is not working properly. Sorry ET, I couldn't resist. I know you were just egging him on :)


    Can you please explain where he says that the other cases are "more important?" And where does he mention "backburner?"
     
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