Three corrections on factual issues:
1) Yes the Footprint 2.0 never ceased to exist, it continued without stopping while the new software update took place.
2) Yes, a contempt proceeding is not designed to determine if the design around is not infringing, rather to determine if the new design around is more than colorably different. And if more than colorable, the court cannot find contempt, it is not to "ignore" the order, it is that if more than colorable, the order was followed, no violation. If merely colorable, there will be a contempt, again no "ignoring" the order at all.
3) The exchange program had to do with the DVRs that was allowed to be continued used without any design around, absolutely nothing to do with the 4 million DVRs, don't mix the two.
Regarding 3), TiVo argued that for those DVRs (such as the 722s and 942s that were allowed to be used, not disabled), if they broke down, they could not be replaced with another 722 or 942, and TiVo was correct, because in the past it had always been that way, infringing products already in the field, often were allowed to continue (unlike the 4 million DVRs), but once they broke down, they could not be repaired or replaced with the same products, unless they were replaced with products that no longer infringed.
In this case, that is why E* is now replacing 722s and 942s with 622s, because E* decided not to install new software in 722 or 942, rather retired them. But remember the 622s would have still infringed had the new software not been installed in them.
The only way E* can get away with installing 622s to replace the 722s and 942s is if the new software in the 622s may not infringe. And for the same reason, the only way the 4 million DVRs can get away with not in contempt is also that, the new software may not infringe anymore.