TiVo Sued: A Taste of Their Own Medicine

[vampz26]

("The Edison Carter Show will not be seen tonight; in its place, we bring you an encore presentation of Lumpy's Proletariat")

[jacmyoung]

They announced the new TiVos coming out through Best Buy already. ...

Link?

This is entirely different than the delay of 922, E* is not out of the stock of any DVRs, but TiVo has no DVRs in stock to sell, yet the new one remains a rumor. Have you ever seem a company run out of existing stock and its only stock to sell while the new ones are still just a rumor?

How can you even compare this with Apple? Is Apple in danger of losing subs?

[Greg Bimson]

But MSFT still sells, offers to sell and uses the 2007 Word, so it is in contempt, according to you. The fact MSFT claims they did the modification for the 2007 Word does not change the definition that the 2007 Word is still one of the "Word products with the infringing custom XML editor" at all, again according to your logic.

No, according to your logic. So please stop "interpreting" my position. It amazes me the amount of times I've had to state my position, and you get it completely incorrect. It amazes me that you've completely blown away your own position.

Microsoft is selling a modified version of Word 2007. That is perfectly fine and legal until i4i decides the modified version is merely colorably different and infringes, at which time i4i would then file a contempt motion because of this perceived violation. It has been your position (or for some reason your interpretation of my position) that just because Word 2007 was modified doesn't change the fact it is target of the injunction. It was StarBrite v. Gavin however that states otherwise, and you continue to ignore it.

TiVo at some point was forced to ask the court to rule that the modified DVR's were also merely colorably different and infringing, which violated the order against infringements.

AGAIN:

DISH/SATS created the DVR 625. It was found infringing. An injunction was issued to force DISH/SATS to disable DVR functionality to those DVR 625's that were installed at the time of the injunction.

Sometime after the injunction was issued but before it went into effect, DISH/SATS modified the DVR 625. They sold new 625's with modified software. They even took the time to download that modified software to those 625's subject to the disable order.

DISH/SATS was found in contempt as the modified 625 and the other seven models violated the provision of sales of products merely colorably different and infringing.

DISH/SATS was also found in contempt for failure to disable functionality within the subset of 625's (and the other seven models) targetted by the disable order.

[jacmyoung]

...Microsoft is selling a modified version of Word 2007. ...

Does not matter because according to you, once a product is adjudicated to be an infringing product, no modification can change its legal definition, do you want me to quote you on that? You just said so yesterday.

Since 2007 Word is one of the products that was adjudicated to be the "Word products with the infringing custom XML editor", MSFT is prohibited from selling, offering to sell or use the 2007 Word after 1/11/10, according to the appeals court.

I am only using both your logic and the appeals court mandate to point out why you are wrong. Using your logic above, MSFT could sell, offer to sell or use 2007 Word before 1/11/10, but after that date, MSFT must throw away all the remaining 2007 Word copies, because according to you, modification does not change the legal status of an infringing products already adjudicated and named in the injunction.

Or MSFT could try to keep those 2007 Word copies in a safe place, ask the court to review the modification, only after the court delcares that the 2007 Word is no longer an infringing product and approves the sale, so can MSFT resume the sell, offer to sell and use the 2007 Word products. Again using your logic, MSFT is currently in contempt by continuing to sell, offer to sell and use the 2007 Word.

Are you ready to give up your contention that those DVRs, once "infringing Products", always infringing products, no modification can change their definition? If you refuse to do that, then you must admit MSFT is also in contempt.

If you are trying to draw a distinction between the 2007 Word sold before 1/11/10 and the 2007 Word sold after 1/11/10 using StartBrite case, please don't, because Judge Folsom drew no distinction between the 4 million named DVRs in use before the injunction took effect, and the additional 2 million same named DVRs installed after the injunction took effect, he said as long as they were the same named DVRs, modification or not did not matter.

So I suggest you follow Judge Folsom's train of thought and admit that MSFT is currently in contempt. It is not that hard.

If you still refuse to do that, then you must admit Judge Folsom was wrong for lumping the 4 million named DVRs installed before the injunction took effect, and the 2 million same named DVRs installed after the injunction took effect, your choice.

[Greg Bimson]

Does not matter because according to you, once a product is adjudicated to be an infringing product, no modification can change its legal definition, do you want me to quote you on that? You just said so yesterday.

Sure. Go ahead. There are two different issues, but you'll find some way to "interpret" what I said to be nothing like I said.

Since 2007 Word is one of the products that was adjudicated to be the "Word products with the infringing custom XML editor", MSFT is prohibited from selling, offering to sell or use the 2007 Word after 1/11/10, according to the appeals court.

Stop arguing with me and go look at StarBrite. AGAIN. Your interpretation is inconsistent with StarBrite, while mine is not.

If you are trying to draw a distinction between the 2007 Word sold before 1/11/10 and the 2007 Word sold after 1/11/10 using StartBrite case, please don't, because Judge Folsom drew no distinction between the 4 million named DVRs in use before the injunction took effect, and the additional 2 million same named DVRs installed after the injunction took effect, he said as long as they were the same named DVRs, modification or not did not matter.

Citation, please.

Are you ready to give up your contention that those DVRs, once "infringing Products", always infringing products, no modification can change their definition? If you refuse to do that, then you must admit MSFT is also in contempt.

No, because you've failed to prove anything except the destruction of your own arguments. There's more holes in your interpretation than in a screen door.

[jacmyoung]

So let me ask you this, is it your contention that any named DVRs installed after the 1/08 date should be considered differently than the ones installed before that date?

Therefore if the appeals court later decides that the modified DVRs may no longer infringe, E* would not be in violation for all the named DVRs installed after the 1/08 date?

But here is the problem, we have this current injunction continues to order the disablement of the same named DVRs, so how do you think the appeals court should treat those same named DVRs ordered to be disabled by the effective date of this current injunction, should the appeals court uphold the current injunction, at the same time they find the modified DVRs may no longer infringe?

Remember the current injunction continues to order the same disablement.

[Greg Bimson]

So let me ask you this, is it your contention that any named DVRs installed after the 1/08 date should be considered differently than the ones installed before that date?

Because this is about legalities and semantics, let me put it this way:

A named DVR which received the old infringing software should be treated differently than a DVR which contained only the modified DVR software. I don't know about the 1/08 date, other than that was when the Court of Appeals released their decision upholding and affirming infringement and the injunction.

Therefore if the appeals court later decides that the modified DVRs may no longer infringe, E* would not be in violation for all the named DVRs installed after the 1/08 date?

Correct. DISH/SATS would have the finding of contempt reversed regarding sales of products merely colorably different and infringing on the Time Warp patent. Remember that there is another finding of contempt besides that one.

But here is the problem, we have this current injunction continues to order the disablement of the same named DVRs, so how do you think the appeals court should treat those same named DVRs ordered to be disabled by the effective date of this current injunction, should the appeals court uphold the current injunction, at the same time they find the modified DVRs may no longer infringe?

The Court of Appeals would mandate that Judge Folsom change the injunction. After all, if a device does not infringe, it cannot be enjoined. That's been DISH/SATS hope all along. They'd live with the contempt for failure to disable, but if they can get a positive ruling, i.e., the devices don't infringe, that would force the injunction to be changed.

Thank you for finally asking the direct questions, instead of trying to interpret what I wrote.

[jacmyoung]

...Thank you for finally asking direct questions, instead of trying to interpret what I wrote.

Not so fast, don't assume I have agreed with you, only that I suppose you are correct, and go from there to see what the end result may be, it is called "on alternative" theory, remember?

So let's say the injunction was in effect in 4/08? If the appeals court finds the modified DVRs may no longer infringe, according to you it will then vacate the current injunction (it can either reinstate, or vacate and remand, it cannot make its own injunction), remand the issue back to Judge Folsom, maybe ask the judge to rewrite a new injunction?

How long do you think that will take? Remember both E* and TiVo will be back arguing on the term of the injunction, very likely E* will argue no more injunction will be needed since the appeals court already agreed with them they may no longer infringe. So maybe they will fight in that new action? Take into consideration of appeals and delays, how long do you think another injunction can take effect, if even likely? Over a year at least?

Meanwhile there will be no injunction at all, so E* will continue to use the DVRs, since no order will exist to order them to disable the DVRs.

As far as the money issue. Since Judge Folsom had already said he would not impose sanctions on the 4 million DVRs, and since we assume the DVRs may no longer infringe, the $130M damages during the last stay period will have to be vacated.

Which leaves the $200M damages plus sanctions for the contempt proceeding period. Since again we assume the DVRs no longer infringed, the damages will have to be vacated, only the sanctions may remain, which will be a very odd situation because I have never seen any cases without damages but only sanctions.

But let's assume there will still be sanctions, by my calculation about $88M out of the $200M. So E* pays the $88M and they go back to fight in that new suit currently pending for another year or two, with appeals and all.

What do you think about that? Not that different a result after all don't you think?

Of course the above is to assume the appeals court finds more than coloable difference and likely no longer infringement. If E* still is found to infringe by clear and convincing evidence, there is no dispute that E* will lose. My point is, if the appeals court finds in E*'s favor on the coloable and infringement issues, the end results will be very similar whether we use your theory or use mine.

[Greg Bimson]

Not so fast, don't assume I have agreed with you, only that I suppose you are correct, and go from there to see what the end result may be, it is called "on alternative" theory, remember?

My problem was that the "on alternative theory" was never close to the opinions and citations I listed. You tried to interpret what I wrote, instead of asking directly. The interpretations were way off, in my book.

I don't assume you agree with me, but I basically agree with the assessment you put forth regarding sanctions but no damages.

[jacmyoung]

...I don't assume you agree with me, but I basically agree with the assessment you put forth regarding sanctions but no damages.

And yet you are wrong to assume I agreed with you on the sanctions.

I have demonstrated exactly how the "on alternative" tactic works, the goal is to seek agreement from the opponent, once the agreement is reached, I still can prove the outcome is not so different.

That is not to say I agree with your positions at all.

My position is, E* cannot be found to violate the injunction for performing a non-infringing act, period. Therefore if the modified DVRs are no longer infringing, the act of using them cannot violate the injunction, any injunction, period. Obviously you disagree.

It is your contention that the DVRs installed before 4/08 must be treated differently than the same named DVRs installed after 4/08. Even though I disagree with you but I use the "on alternative" tactic, supposedly you are right on this point, I can demonstrate that the outcome is no different at all if the appeals court finds the modified DVRs may no longer infringe, the injunction will be vacated, all the damages and the sanctions too.

Because as I said earlier, even Judge Folsom declined to impose sanctions for the stay period, stating that he considered E*'s effort a good faith one, though he did impose sanctions for the contempt proceeding period. But my opinion is if the appeals court finds possible non-infringement, the sanctions will very likely be vacated too. I have never seen one case that sanctions were affirmed on products that no longer infringed, not to mention even Judge Folsom had shown that he thought E*'s initial effort could be a good faith one.

Therefore even if I suppose you are correct the DVRs installed pre and post 4/08 must be treated differently, as long as the appeals court finds possible non-infringement, E* will not likely have to pay TiVo anything.

But of course you will disagree again, because you insisted the sanctions had to be imposed regardless, at that point, in order to get your agreement, I again went one step further and supposed that you were right E* had to pay the sanction award, I was able to demonstrate that under your agreement, the most E* would pay would be $88M, and no DVRs would be disabled and parties would go on to the next round if they liked to do so, that is if the appeals court decides the modified DVRs may no longer infringe.

See how the "on alternative" argument unfolded? The point is to destroy the "on the face" violation argument, by getting you to agree with me at some agreeable level, then demonstrate to you the outcome is not so different had we taken my original position in the first place.