TiVo Sued: A Taste of Their Own Medicine

[Greg Bimson]

In a nutshell -

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

I did not agree with you on the sanctions. What I said was I agree with your assessment: if infringement is reversed then the only real possibility of money is from sanctions. I agreed with your assessment, not that you agreed with me on the sanctions.

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.

Your original position has to assume overturning contempt for infringement. Not that I agree with that, but you know, I have to allow you to have your fun...

Just because you needed to walk down a road starting with the theory that contempt for infringement will be overturned doesn't mean I agree. However, as your assessment states, the monetary damages for continuing infringement cannot be assessed if infringement isn't present.

However, in my opinion it would still be possible that DISH/SATS is found in contempt for violations of the disable provision. Just because something no longer infringes doesn't mean that contempt can't be found, as the disable order was violated. It was a legal order that is supposed to be followed even if in error. But that would only give TiVo a hollow victory. Other than any awarded sanctions, it would be a stunning defeat.

[jacmyoung]

...Your original position has to assume overturning contempt for infringement.

My original position is not an assumption, my original position was E* was not in contempt, the position still stands.

What I am saying is, whether the contempt is overturned or not, as long as the appeals court finds likely no more infringement, the end result will be the same, i.e.:

...But that would only give TiVo a hollow victory.

But I still disagree with the below:

...Other than any awarded sanctions, it would be a stunning defeat.

I don't think TiVo will likely get any sanction money either, if the appeals court finds likely no infringement.

So we at least agree, if the appeals court finds likely no infringement by the modified DVRs, it will be a stunning defeat for TiVo?

[Greg Bimson]

So we at least agree, if the appeals court finds likely no infringement by the modified DVRs, it will be a stunning defeat for TiVo?

I've said that time and time again.

However, if the Court of Appeals reverses the infringement and colorably difference finding only to have the analysis done again by Judge Folsom, it's up in the air.

[jacmyoung]

...However, if the Court of Appeals reverses the infringement and colorably difference finding only to have the analysis done again by Judge Folsom, it's up in the air.

If so that's almost a given, that is what that pending new E* v. TiVo suit is all about, so you still disagree after all?

[Greg Bimson]

If so that's almost a given, that is what that pending new E* v. TiVo suit is all about, so you still disagree after all?

I just disagree that the Court of Appeals will reverse the infringement finding. Based upon all of the evidence and the deposition given in the bench hearing, I don't believe the finding of infringement will be reversed.

[jacmyoung]

I just disagree that the Court of Appeals will reverse the infringement finding. Based upon all of the evidence and the deposition given in the bench hearing, I don't believe the finding of infringement will be reversed.

That is not the point, I know you do not think the appeals court will reverse the infringement finding, I am not trying to change your mind.

The point is, if they do reverse, do you believe it will be a total loss for TiVo or not? You seemed to say yes at one time and no at another.