Continued Coverage of TiVo/Echostar Trial

Discussion in 'TiVo Coffee House - TiVo Discussion' started by ZeoTiVo, May 25, 2007.

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  1. Greg Bimson

    Greg Bimson New Member

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    I'll try this...

    Why would the original injunction take effect and be dissolved later? This is a final injunction. It cannot be argued unless the infringing party does not follow the direction of the injunction. The only argument, that they now no longer infringe, doesn't matter.

    In most cases, it is the threat of the judge issuing an injunction and having it take effect that draws the parties together to settle. In this case, the injunction has already been issued and will go live as soon as a couple of processes are complete. There is no need for human intervention, as the injunction will automatically take effect.

    There is no negotiating to "fix" the parts that are infringing and have the injunction removed. The injunction stands and the defendant must comply with it or face contempt proceedings. Just by changing the software on the infringing boxes does not change the status of the injunction. And the software changes will be shot down in a contempt proceeding very quickly.
     
  2. Greg Bimson

    Greg Bimson New Member

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    I want people to think about this one very carefully. I have changed the software on the above boxes so they no longer infringe, and now call them the DP-5001, DP-5008, DP-5010, DP-5022, DP-6025, DP-7021, DP-9021 and DP-9042. Now I no longer have any infringing units with customers.

    True or false?
     
  3. ZeoTiVo

    ZeoTiVo I can't explain

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    model numbers go with hardware - not software. You can not change the model number merely with a software update.

    Anyone know if they mentioned specific software versions along with hardware model numbers
     
  4. Greg Bimson

    Greg Bimson New Member

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    I believe DISH/SATS' 4xxx standalone receiver had many updates. I have a friend that had a lower number in the 4X00 series and it was software upgraded to a 4900. So some of DISH/SATS' model numbers have changed with a software upgrade. So my above question still stands.

    Or, can the case be made that the statement, "U.S. District Court Judge David Folsom granted TiVo's motion for permanent injunction to prevent EchoStar Communications Corp. (Nasdaq: DISH; "ECC") from making, using, offering for sale or selling in the United States their DVR products at issue in the case (DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, DP-942, and all EchoStar DVRs that are not more than colorably different from any of these products)," would apply simply to the hardware as ZeoTiVo mentions, or could TiVo simply prove that they are only infringing receivers with changed model numbers? And does this mean if TiVo can prove that the newer DVR's DISH/SATS released after the beginning of the case (the flagship ViP 622 and 722) weren't "colorably different" from the original models, they can also be included?

    We do know for a fact that DISH/SATS will muddy up the waters as much as they can before trying to say, "my bad."
     
  5. HDTiVo

    HDTiVo Not so Senior Member

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    Did the injunction require a complete shutdown of boxes or just disabling the recording functionality?
     
  6. Curtis

    Curtis New Member

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    The injunction requires that the hard drive not record or play back. DVR "live TV" pictures are first recorded to the hard drive. I don't think a DVR can show a picture truly "live".
     
  7. TK421

    TK421 Member

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    Does "colorably different" have a legal definition? It seems to me what standard is applied to that phrase is the key to how painful the injunction is.
     
  8. Curtis

    Curtis New Member

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    Indeed. Precedence:

    "A contempt proceeding for violation of a patent infringement injunction will lie where the new and alleged offending device is merely 'colorably' different from the enjoined device or from the patent. In American Foundry & Mfg. Co. v. Josam Mfg. Co., supra, this Court held, 79 F.2d at 117:
    10

    'As will be hereinafter shown, all subsequent constructions by a convicted infringer are not triable in contempt proceedings. Only where such constructions are merely 'colorably' different from the enjoined device or from the patent is the issue so triable. Such constructions may turn out to be infringements, but if they are more than 'colorably' different, the issue of infringement must be otherwise determined than by a contempt proceeding. Therefore, when the issue of infringement is presented in a contempt proceeding, the court must first determine whether it can properly entertain the issue in that proceeding.'"

    Link
     
  9. HDTiVo

    HDTiVo Not so Senior Member

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    I guess we´ll see about that.
     
  10. CuriousMark

    CuriousMark Forum Denizen

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    There are some DVRs that do. People noticed that switching to live TV caused the buffer delay to go away. It was speculated here that not buffering live TV was a workaround to avoid infringing TiVos patent. So the hardware can play live TV without first storing to the HD. Disabling the hard drive would have the effect of turning the DVR into a large, expensive, power hungry receiver. It would still be a working receiver though. I don't recall if it was a cable company DVR or a Dish DVR being discussed, so whether Dish's DVRs will be able to continue working isn't known.
     
  11. sbiller

    sbiller Active Member

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    I think that is the way my piece of crap SA 8300HD worked until I dumped it for my series 3 and TiVo HD.
     
  12. shpope

    shpope New Member

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    I'm pretty sure my in-laws Time Warner SA unit acts like that. I say that because I noticed there was no delay between their kitchen (analog cable only) and their family room tv when watching the analog
     
  13. Curtis

    Curtis New Member

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  14. dswallow

    dswallow Save the Moderatоr TCF Club

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    It's gonna be fun seeing how TiVo approaches the court over Dish Networks refusal to follow the injunction.
     
  15. PrincetonTech

    PrincetonTech New Member

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    So, the injunction went into effect on April 18 2008. It seems to me that Dish is now officially in contempt of court. Comments anyone? Does this mean heavy daily fines will soon be imposed, retroactive to April 18? I believe that will be the next step. $650,000 per day sounds about right to me. That should get the attention of the Dish scum bags and Dish stock holders.
     
  16. gastrof

    gastrof Hubcaps r in fashion

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    Potato and pen.
    Has anyone checked these links?

    They try to download files to your computer. I'd rather not walk blindly into that one until I hear from more courageous souls what's on the other end. :)
     
  17. Greg Bimson

    Greg Bimson New Member

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    They are PDF files. Interesting reads.
     
  18. CharlesH

    CharlesH Member

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    Dish seems to be claiming that they have removed the infringing software, and thus they are not in violation of the injunction. But even stipulating that the new software does not infringe, I don't see anything in the injunction about software. It just mentions model names. But then again, I am not a lawyer, and I recognize that what words mean in the legal domain can be very different from how the words are ordinarily used. :)
     
  19. PrincetonTech

    PrincetonTech New Member

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    Apr 13, 2008
    But their request for a rehearing was recently denied so the court is not interested in their lies. The injunction went into effect yesterday and it stands as the ruling of the courts. However, I do believe they have 30 days from yesterday to disable their DVR's. Can anyone confirm the 30 days? I believe I did read it somewhere.
     
  20. mtchamp

    mtchamp New Member

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    I think the full force of the injunction is now in effect. The 30 days originally given to be in full force was before the appeal and I believe it no longer applies. The injunction is now in full force as Echostar declared in it's notices to it's vendors on 04/18/08. All parties knew the injunction takes effect when the appeals court issues it's mandate, for which a stay was not requested by Echostar, and makes the appeals court decision final and injunction live on 04/18/08.

    The appeals court decision affirmed the injunction and is now in full force according to appeals court procedure by a mandate issued 7 calendar days from when the appeals court denied a petition for a rehearing en banc. As far as I can tell, Echostar is in contempt of court by issuing these notices to vendors and not disabling the DVR's as directed by the injunction on 04/18/08. Echostar could be racking up daily damages for contempt of court to the tune of one day so far.
     
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