TIVO vs E*

[jacmyoung]

figures....

just like I said a long time ago when this whole thing began. I said Dish was going to use their deep pockets and litigate this thing to death until it disappears into the ether...I remember HDfan back and 'another forum' having a total hissy...yet I was right, he was wrong...and here we are today...

Your latest prediction was Judge will rule completely in TiVo's favor. You are too soon to claim credict. The only reason E* can even try to ask the judge to stay the current order is because their new design has raised substantial open issues, meaning E* has been successful during the contempt argument.

Your previous prediction was E* would be lucky if TiVo will settle with them, totally different things.

Even TiVo now concedes their so called "on the face" contempt argument has failed. Meaning the judge did not completely rule in TiVo's favor and your "new world order" theory is on a very shaky ground.

BTW: You were right when you said that a lot of things can happen outside of the courtroom...I just don't think you have a clue how right you are!

While I said that, I hope you do realize so far nothing out of the court has happened in this case, after all this years. Again, speaking too soon, not good when you are making legal argument.

Unless of course if you think what is happening now is something out of the courtroom, you are mistaken yet again. There is a good reason a "legal writing certificate" is not good enough to stand in front of the judge.

 

[rockymtnhigh]

Enough. Get back on topic. And stop bickering with each other. Consider it the LAST warning.

 

[vampz26]

Your latest prediction was Judge will rule completely in TiVo's favor. You are too soon to claim credict. The only reason E* can even try to ask the judge to stay the current order is because their new design has raised substantial open issues, meaning E* has been successful during the contempt argument.

Your previous prediction was E* would be lucky if TiVo will settle with them, totally different things.

Even TiVo now concedes their so called "on the face" contempt argument has failed. Meaning the judge did not completely rule in TiVo's favor and your "new world order" theory is on a very shaky ground.



While I said that, I hope you do realize so far nothing out of the court has happened in this case, after all this years. Again, speaking too soon, not good when you are making legal argument.

Unless of course if you think what is happening now is something out of the courtroom, you are mistaken yet again. There is a good reason a "legal writing certificate" is not good enough to stand in front of the judge.

With all due respect, and with no intent to start further argument, I do not feel I can leave this post unanswered since the posts following it have been deleted. Now I firmly agree that the posts NEEDED to be deleted, and take responsibilty for my end of things with regards to the reasons. But I can't let this statement stand as the final word here due to the fact it gravely mis-represents my case, so if I may, I would like to respectfully respond. If any mod is offended, please accept my apologies in advance, and understand I was only striving for clarity in my final remarks, and have no desire to bicker or argue further with anyone.

1) my prediction was strictly a foreward looking statement based on the anticipated final outcome of this case. To attribute this prediction to anything taking place in the past is innaccurate since the prediction was never intended to reflect on anything in the past. Only the final outcome. I've said this before, but just wished to re-iterate it for the sake of clarity in my closing statement.

2) my inference regarding things happing outside the courtroom was accurate. If anything did happen outside the courtroom to affect this case, chances are we would never know. It is not uncommon for the outcome of a trial to be influenced more by the accounting department than the legal department in some cases. This may wind up being one of them. And never underestimate the power of contributing to the right political party.

Lastly, I've never claimed to be a lawyer, and I've made my legal experience very clear. I've been in a courtroom more than enough times to just plain see how these things usually work out. Thats all. Does it make me a master expert or legal wizard? Probably not...just means I've been there enough times to have a clue whats going on that goes beyond the books. Thats all...

Thank you in advance for allowing this post. As I said, my only desire with this post was clarity in how my initial point was represented should anyone else desire a respectful conversation on the subject. I would like a good, respectful conversation that has an honest start. This is a good thread for the most part, and I do not want to see it end like this. It deserves a second chance...

Thanks, :up

 

[Thomas22]

There should be a response from TiVo available tomorrow and an answer from Judge Folsom shortly thereafter. I'm guessing he will go with TiVo's recommended wording change and not change the schedule.

 

[jacmyoung]

There should be a response from TiVo available tomorrow and an answer from Judge Folsom shortly thereafter. I'm guessing he will go with TiVo's recommended wording change and not change the schedule.

I will wait to read TiVo's response, but for now I don't think the TiVo's proposed modification will work, because a bench trial is not used to determine colorable difference issue, only infringement issue, because:

There are two standards of proof in the civil case:

1) Proof by clear and convincing evidence;

2) Proof by preponderance of evidence.

1) is a much higher standard of proof than 2).

1) is used to prove colorable difference in a summary contempt proceeding, 2) is used to prove infringement in a trial.

There cannot be two standards used in one proceeding to prove two different things which should be adjudicted in two separate proceedings in the first place.

A compromise may be to drop the bench trial order, then order a discovery for the purpose of determining colorable difference issue. Since such proceeding is a part of the summary contempt proceeding, the discovery should be much more limited than the one described in the bench trial order.

 

[riffjim4069]

I just took at quick look at Tivo's 3rd quarter report and realized they have lost 1 million combined Tivo owned and MSO subscribers (Yikes!) over the past 21-months, 16% of their subscribers over the past 12-months, and they are on track to lose another 18-20% of their subscriber base during 2009. According to my best guestimate, they will wind up with roughly 2.275 million paying customer at the end of 2009, which is far less (about half) than the 4.444 million they had on Jan 31, 2007.

In a nutshell, Tivo will probably fold within the next 2-years if their DVRs (old and new) are found to not infringe and Dish Network isn't paying licensing fees.
Perhaps I am wrong, but I get the feeling TiVo may be joining the likes of VOOM DBS in the next couple years. Although competition is generally a good thing for the consumer, in my opinion Tivo and their questionable patents have prevented a lot of companies from competing/staying in the DVR market. My Sony DHG-HDD500 with free TV Guide on Screen (an excellent single-tuner HD DVR) is a perfect example.

Thoughts?

 

[Curtis0620]

Did you miss the new agreement with Directv to produce an HD-DVR in 2009?

 

[riffjim4069]

Did you miss the new agreement with Directv to produce an HD-DVR in 2009?

I did not, but I don't see how this will stop the bleeding (although it may slow it down a bit) since Tivo already has agreements in place with DirecTV and Cable (Comcast). We have purchased/used 12 different HD DVRs over the years and, as the figures have shown, most people prefer the Cable/DBS offering/pricing over Tivo.

• If Dish Network doesn't license Intellectual Property from Tivo, their business model (subsidized clunky hardware and overpriced subscription services) will probably fail.

• If EchoStar can break into the Cable TV set-top-business (which they are trying to do AND assuming their digital cable ready products are similar in quality fo their VIP series), Tivo is history since E* makes a superior HD DVR and can outproduce Tivo.

Unless Tivo gets is able to pursuade E* to license their IP (via the courts), I feel they are going to get eaten alike on the HD DVR fron by the likes of E*, Motorola, Scientific-Atlanta (aka Cisco), and others CE vendors (e.g., Sony, Diego (moxi), etc.). Anyway, just my humble opinion.

 

[Curtis0620]

I did not, but I don't see how this will stop the bleeding (although it may slow it down a bit) since Tivo already has agreements in place with DirecTV and Cable (Comcast). We have purchased/used 12 different HD DVRs over the years and, as the figures have shown, most people prefer the Cable/DBS offering/pricing over Tivo.

• If Dish Network doesn't license Intellectual Property from Tivo, their business model (subsidized clunky hardware and overpriced subscription services) will probably fail.

• If EchoStar can break into the Cable TV set-top-business (which they are trying to do AND assuming their digital cable ready products are similar in quality fo their VIP series), Tivo is history since E* makes a superior HD DVR and can outproduce Tivo.

Unless Tivo gets is able to pursuade E* to license their IP (via the courts), I feel they are going to get eaten alike on the HD DVR fron by the likes of E*, Motorola, Scientific-Atlanta (aka Cisco), and others CE vendors (e.g., Sony, Diego (moxi), etc.). Anyway, just my humble opinion.

Tivo is losing subs because of the lost Directv deal. Now that they have it again, they will begin to grow subs again.

They were growing before, without E*, why would they need them now? Of course it would help greatly if they do get a licensing deal with E*, but it is not necessary.

 

[riffjim4069]

Tivo is losing subs because of the lost Directv deal. Now that they have it again, they will begin to grow subs again.

I understand what you're saying. Although I don't have D*, several of my friends do....and we all prefer the non-Tivo HD DVR. Although the new Tivo box will be an option, I feel that far more customers will select the D* HD DVR since the Tivo box won't be available until mid-to-late 2009, D* makes a pretty good box, and subscribers will not be willing to pay a "substantially higher monthly fee" for the Tivo box. The facts indicate that Tivo is no longer the "only" player in town, they no longer make the best DVR, and they have lost momentum/subscriber loyalty...I see TiVo's D* subscriber numbers continuing to shrink during 2009.

They were growing before, without E*, why would they need them now? Of course it would help greatly if they do get a licensing deal with E*, but it is not necessary.

We're talking apples and organges since Cable and DBS are two different markets. Tivo's cable presence continues to shrink. If E* is able to move past this "legal issue" and start marketing their wares directly to Cable (remember, EchoStar is developing a cable product line to include SlingModela nd Slingbox) and/or perhaps directly to the consumer market via dtvpal.com, then I feel this may be the straw that will break Tivo's back. E* makes better hardware and better DVR software IMO. The only way I see Tivo surviving in their present form is if EchoStar's "patent workaround" is judged to still infringe and they wind up striking a licensing agreement with TiVo. Even then...I doubt we'll ever see Tivo software running on an E* DVR. As much as I can't stand the way E* conducts business (dealing from the bottom on the deck with vendors, supplier, programmers, and partners), it would be a continued blow to the CE industry if E* were forced to pay Tivo licensings fees. Although TiVo may survive if EchoStar gets into the Cable set-top-business, I think they will be forced out of the cable DVR business.

Anyway, if nothing else it should be interesting to see what products EchoStar, Diego (Moxi) and others bring to CES 2009:

Posts tagged Moxi at Engadget HD
Products - EchoStar Technologies LLC
http://www.echostar.com/downloads/pdf/news/press_releases/Echostar_tru2way_PR.pdf

 

[jacmyoung]

The so called new DirecTiVo deal was mentioned only once at the press release by DirecTV, and never again mentioned in the following many months in any of the DirecTV's investors' conference calls. The only ones that continue to mention it are TiVo and some of its supporters.

The latest DirecTV investors' call mentioned their plan to cut several capital projects in 2009 to deal with the economical down turn, this new deal could be one of them because frankly I can't even think of any other "capital projects" DirecTV has in its 2009 plan anyway.

 

[mike123abc]

The so called new DirecTiVo deal was mentioned only once at the press release by DirecTV, and never again mentioned in the following many months in any of the DirecTV's investors' conference calls. The only ones that continue to mention it are TiVo and some of its supporters.

The latest DirecTV investors' call mentioned their plan to cut several capital projects in 2009 to deal with the economical down turn, this new deal could be one of them because frankly I can't even think of any other "capital projects" DirecTV has in its 2009 plan anyway.

Satellites, uplink centers, etc, lots of possible capital projects in the plan. But of course the deal with TiVo may just be lawsuit insurance...

 

[jacmyoung]

Satellites, uplink centers, etc, lots of possible capital projects in the plan. But of course the deal with TiVo may just be lawsuit insurance...

None of them are in the 2009 plan, the only thing we learned is this new DirecTiVo DVR for 2009.

Of course there can be other capital projects. But first thing first, since this new DirecTiVo project was initially announced, it has yet been mentioned once by DirecTV.

And I agree the lawuit insurance part, but if the court ends up not shutting off the E* DVRs, D* will no longer need that insurance.

Let's not forget that the Comcast TiVo project is going nowhere, and as far as Cablevision, they just passed almost the last legal hurdle and ready to launch their own centralized DVR system, no TiVo in that picture either.

Wonder why Charlie is so comfortable at this point that you don't see any sign he intends to settle, rather fight on? He is on the verge of finally getting his vengeance

The latest we know is E* motioned the court to compell TiVo to comply with the new order for disclosure as the first step in the new evidentiary hearing, to prove E*'s new software no longer infringe. TiVo was 4 days past the deadline on the initial disclosure.

Who knows, maybe, just maybe, the tide is turning.

 

[riffjim4069]

Aren't both parties back in court this month for a final ruling on the contempt issue?

 

[jacmyoung]

Aren't both parties back in court this month for a final ruling on the contempt issue?

Two days from today. I wouldn't call it a final ruling since there are other issues but yes this one is the major one.

 

[riffjim4069]

Two days from today. I wouldn't call it a final ruling since there are other issues but yes this one is the major one.

Thanks!

 

[CuriousMark]

"but yes this one is the major one"

Apparently Charlie Ergen is slated to testify, he is on Dish's witness list.

 

[riffjim4069]

Apparently Charlie Ergen is slated to testify, he is on Dish's witness list.

Wow! EchoStar is putting in their starting lineup. It should be interesting to see how the judge rules in this case.

 

[jacmyoung]

Wow! EchoStar is putting in their starting lineup. It should be interesting to see how the judge rules in this case.

Charlie has always testified in the past, not just in this lawsuit, he apparently loves the courtroom drama so much he wants to be part of them Also he might want to be there to make sure no one on his team goes to the local bars to waste his money

BTW, there is not much of a starting lineup, it will be a short two-day hearing, only about one lineup and that's it.

 

[riffjim4069]

TiVo, EchoStar return to court over patent fight

Nice summary of the issues posted here. I didn't like the part about a ruling "could take months to come" since it seems like the judge should have all the informaiton he needs by now.

NEW YORK (Reuters) - Digital video recorder maker TiVo Inc (TIVO.O) and EchoStar Corp (SATS.O) return to a Texas court on Tuesday in the latest round of a longstanding fight over a television recording technology patent....

...Arguments are expected to take place Tuesday and Wednesday in U.S. District Court in Texarkana, Texas, before Judge David Folsom. He will consider whether TiVo can prove EchoStar's new DVR software further infringed on TiVo's patent, and therefore owes TiVo more damages.

Analyst Spencer Wang of Credit Suisse said that a ruling in TiVo's favor, which could take months to come, could be rough for Dish, since the work-around software is deployed on the vast majority of its millions of DVRs....

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