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.
