Appeals Court Finds Echostar in Contempt in TIVO Case

[Kheldar]

UO

So I wonder if this would get a customer out of there contract? Being that there service is dramatically changed and how this can open Echostar up to class action lawsuits if dvr service does end.

Residential Customer Agreement, section 4D:

DISH Network does not guarantee access to or recording of any particular programming, or that any such programming will not be deleted from your PVR/DVR product

And section 4F:

DISH Network may, through periodic downloads, alter the software, features and/or functionality in your DISH Network receivers; provide data and content to PVR/DVR products; store and remove data and content on the hard drives of PVR/DVR products; and send electronic counter-measures to your DISH Network receivers. DISH Network will use commercially reasonable efforts to schedule these downloads to minimize interference with or interruption to your Services, but shall have no liability to you for any interruptions in Services arising out of or related to such downloads. DISH Network may from time to time cease supporting one or more DISH Network receiver models.

So it's written right into the customer agreement that DishNet can "alter the software, features and/or functionality", and may even "cease supporting one or more ... receiver models". It is right in the customer agreement. Granted, I would say a complete disablement of DVR service is a little more serious than altering features or functionality, but I think they would be covered.

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If they filed an appeal, wouldn't that cause any actions to be on hold until the appeal is either thrown out or ruled upon?

Only if the judge(s) they appeal to would grant the hold.

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And what if you own your old DVR? Could this ruling really make Dish turn off equipment that is owned by a customer and was purchased before this whole mess?

You own the equipment, not the software. You are "licensing" the software, which still is owned by DishNet. As quoted above, they retain the right to alter the software. Also in section 4H (blue emphasis is mine):

H. Software License. You are licensed to use the software provided in your DISH Network receiver(s), as updated by DISH Network, its licensors and/or its suppliers from time to time, solely in executable code form, solely in conjunction with lawful operation of the DISH Network receiver(s) that you purchased or leased, and solely for the purposes permitted under this Agreement. You may not copy, modify or transfer any software provided in your DISH Network receiver(s), or any copy of such software, in whole or in part. You may not reverse-engineer, disassemble, decompile or translate such software, or otherwise attempt to derive its source code, except to the extent allowed under any applicable laws. You may not rent, lease, load, resell for profit or distribute any software provided in your DISH Network receiver(s), or any part thereof. Such software is licensed, not sold, to you for use only under the terms and conditions of this license, and DISH Network, its licensors and its suppliers reserve all rights not expressly granted to you. Except as stated above, this license does not grant to you any intellectual property rights in the software provided in your DISH Network receiver(s). Any attempt to transfer any of the rights, duties or obligations of this license is null and void. If you breach any term or condition of this license, this license will automatically terminate.

So if the court requires DishNet to disable the infringing software, then yes, your DVR would be disabled. It sucks, but it's true.

 

[HDRoberts]

Not to bring politics into it, but... Judge Alan David Lourie wrote the opinion. This guy has been employed at Monasnto, Wyeth Labs (now part of Pfizer) , and SmithKlein (now GlaxoSmithKlein). All 3 companies MAJOR patent holders. It should not be surprising this guy took such a pro-patentholder position. To me, this guy is hardly neutral. I hope this sees an en banc hearing.

 

[bobvick]

Does anyone here think that Echostar might try to acquire Tivo, or at least acquire a majority position in the company in order to get some seats on the board?

 

[Voyager6]

I knew that this statement from Judge Folsom would come back to haunt him. Let's hope that the full court will be persuaded by Judge Rader to hear the case.

RADER, Circuit Judge, dissenting.

“Even if Echostar had achieved a non-infringing design around, this Court would still find that Echostar is in contempt of this Court’s permanent injunction.” Those words come directly from the district court’s contempt order. In other words, even assuming the modified technology falls outside the asserted claims, Echostar would still be in contempt. How can that be correct?

 

[Ronnie-]

US court affirms Echostar in contempt

Not that it has gotten that way, if anyone wants to talk the political aspects of it, I just opened a thread for that at sonic.:up

 

[STL]

Not to bring politics into it, but... Judge Alan David Lourie wrote the opinion. This guy has been employed at Monasnto, Wyeth Labs (now part of Pfizer) , and SmithKlein (now GlaxoSmithKlein). All 3 companies MAJOR patent holders. It should not be surprising this guy took such a pro-patentholder position. To me, this guy is hardly neutral. I hope this sees an en banc hearing.

Give me a break. So using your logic only people who have never held a real job can be an impartial judge?

 

[kstuart]

But the new receivers use hardware to control the DVR functions not software like the old ones did. The issue was the software.

If Tivo wants to go after them about the hardware they can, but it means starting a new case.

Actually, EchoStar already won a case against TiVo for infringing against EchoStar's DVR hardware patents.

 

[MikeinBaja]

Does anyone here think that Echostar might try to acquire Tivo, or at least acquire a majority position in the company in order to get some seats on the board?

It would cost a ton. Tivo stock doubled on the news - E down (but not as much as I expected).

And why would Tivo sell? They got Charlie over a barrel with his pants down.

 

[Curtis0620]

It would cost a ton. Tivo stock doubled on the news - E down (but not as much as I expected).

And why would Tivo sell? They got Charlie over a barrel with his pants down.

Yes, licensing price has now skyrocketed.

 

[kstuart]

I didn't mean to accuse Dish Network of anything. That was just my ignorant and baseless understanding. From what I read, though I didn't scour the entire ruling, it sounds as if Dish Network infringed on a flow chart, not any actual technology. Though, now that I think of it, I'm sure anyone who makes a DVD or Blu-Ray player has to pay royalties to the owners of that technology. So maybe this isn't exactly as bogus as I first thought. It seems like anyone who makes a DVR has to pay TIVO to use that right. I know nothing of Replay.

You can spend 24 hours a day reading the documentation on these lawsuits and then the discussions on the documentation, and you would still be 20 years behind when you were 90 years old.

Discussing or thinking about this issue is a massive waste of time.

That is a professional opinion, by the way (from a software and audio engineer).

Just read the Dish press releases for how it affects your service and forget the rest.

 

[Kheldar]

I knew that this statement from Judge Folsom would come back to haunt him. Let's hope that the full court will be persuaded by Judge Rader to hear the case.

RADER, Circuit Judge, dissenting.

“Even if Echostar had achieved a non-infringing design around, this Court would still find that Echostar is in contempt of this Court’s permanent injunction.” Those words come directly from the district court’s contempt order. In other words, even assuming the modified technology falls outside the asserted claims, Echostar would still be in contempt. How can that be correct?

I interpreted Judge Folsom's comment as meaning that, just because they have designed-around it now, doesn't excuse them from being in contempt of his order that was issued before the design-around, and any infringement that occurred before the design-around took effect.

But, now that the judges decided the design-around wasn't sufficient, it's something of a moot point anyway.

 

[bobvick]

It would cost a ton. Tivo stock doubled on the news - E down (but not as much as I expected).

And why would Tivo sell? They got Charlie over a barrel with his pants down.

Actually, right now, even with the spike in price, which will likely settle down, the market cap of Tivo is only $1,750,000,000.00. It would depend on who owns how much of Tivo's stock and if the company was willing to merge or be acquired by Echostar, if Echostar could make the offer sweet enough.

 

[Scott Greczkowski]

UNLESS, someone is still trying to use a Microsoft based 7200 or 7100 dinosaur which predates Tivo I believe.

No one is using one of those now as the Dishplayers do not support the new security cards.

 

[nelson61]

The won't, I dont think they want to start from quare one and have a lawsuit that goes on for years and years.

I believe we will see a licensing deal between Dish and TIVO in the near future.

Can't forget that the Patent Office had recently issued preliminary decison to void these TIVO patents. It's not final yet and under review, but clearly puts TIVO in a position that would encourage negotiation.

 

[HDRoberts]

Give me a break. So using your logic only people who have never held a real job can be an impartial judge?

No, just not people who have spent large portions of their adult lives writing and defending the patents of companies they have worked for.

 

[dishcomm]

All NonVIP receivers would probably get bricked (my daughter has a 510 which is endangered). UNLESS, someone is still trying to use a Microsoft based 7200 or 7100 dinosaur which predates Tivo I believe.

Eastern Arc and Western Arc migration are about to get kicked into overdrive.

Western Arc doesn't apply. Eastern Arc requires MPEG or VIP receivers. WA does not.

 

[dgray9]

So, how long will it be before my 625 loses its dvr functionality ?

Ideas ?

I assume a licensing fee will be in the works, but this a permanent injunction .

What sort of time frame are we talking about ?

Days ? Weeks ?

... before an en banc review is considered or the dvr's are turned off ?


Thank you.

 

[MikeinBaja]

So, how long will it be before my 625 loses its dvr functionality ?

Ideas ?

I assume a licensing fee will be in the works, but this a permanent injunction .

What sort of time frame are we talking about ?

Days ? Weeks ?

... before an en banc review is considered or the dvr's are turned off ?


Thank you.

MINIMUM 30 days. Will probably be longer if they can get a stay or extension - but the decision cited 30 days.

 

[vurbano]

seems like a no brainer to me. its about time they punished this thief.

 

[Scott Greczkowski]

So, how long will it be before my 625 loses its dvr functionality ?

If I was willing to bet, I would say it won't...

And if it does I say you have a new ViP DVR installed in your house before the 625 is shut off.

This lawsuit has given DISH lots of time to upgrade things and customers so many many customers won't know anything happened.