Closing arguments as DISH Network, NDS trial ends

[Poke]

Well it will be interesting to see how this plays out.. If News Corp looses I see that percentage mark going way down..

UPDATE 1-Closing arguments as DISH Network, NDS trial ends | Markets | Markets News | Reuters

 

[Skyhi]

I just don't understand why D* would want to encourage theft of E*'s signal......when people are getting pay-tv for free, the entire market loses potential subs

 

[RVD420]

I just don't understand why D* would want to encourage theft of E*'s signal......when people are getting pay-tv for free, the entire market loses potential subs

It is not DirecTV that was encouraging E* signal theft. It was NDS. NDS supplies security for DirecTV.

At the time that NDS leaked the Nagra codes on the internet DirecTV was in talks with Nagra about dumping NDS and going with Nagra for their security. (you have to remember until NDS leaked the code the Nagra security was very secure)

So with DirecTV in talks with Nagra about switching to Nagra for their CAS you can see why NDS would want to leak the code.

 

[tomcrown1]

So will a win mean that Dish will have the money to get all of the HD that is available???

 

[crappieguy]

And guess who owned NDS?





MURDOCH

 

[RVD420]

And guess who owned NDS?





MURDOCH

We all know who owns NDS.

I find it kinda funny that Rupe would not testify.

And that Abe Peled left country after giving an affidavit, and refuses to return to testify.

Abe is the CEO of NDS.

Sure looks like they stepped in it.

 

[JohnL]

And guess who owned NDS?





MURDOCH

Crappie,


Murdoch got schooled a couple of times by Ergen. The Biggest was Dish getting all the Hardware (Satellites), Uplink Centers and 29 FCC Transponder Licenses at the 110 orbital slot, for a proposed DBS service called "Sky" to compete with DirecTV and Dish Network. What is funny though is that Murdoch became very disenchanted with DirecTV after becoming the owner, after selling out his interest in DirecTV he referred to DirecTV as a "Turd Bird".

Before selling his ownership stake in DirecTV, Murdoch did use his ownership stake at DirecTV and his a Few of his Affiliated FOX Television stations to remove Dish as a competitor for delivering Distant Networks.

Dish was found to be violating a legal statue that allowed them to distribute Distant Network signals. The NAB was at one point suing Dish because it was found that Dish had a number of subscribers receiving Distant Network signals that should not have qualified for them. During the trial Dish had an agreement in principal with all the Affiliates of NBC, ABC, and NBC, although a small number of Fox affiliates would NOT sign on, hence breaking the deal. It was Murdoch's stations that single handedly killed this deal. When Murdoch gained ownership of DirecTV the FCC required a condition of the deal be that Muchdoch would NOT use his new company's vertical integration to restrict services to competitors.

While I agree that Dish was violating the Distant Services clause they had an agreement with all but a few News Corp Affiliates. News Corp's decision to not sign onto this agreement, forced Dish to stop selling Distant Services. In one fell swoop News Corp owned DirecTV became the ONLY national provider with the ability to sell Distant Network Services. Seems to me that Murdoch welched on his promise to the FCC.

If, News Corp owned, NDS is found guilty of corrupting the Nagra Conditional Access system code, this could give Dish a lot of leverage to gain concessions from News Corp over their owned networks carriage by Dish Network.

John

 

[richiephx]

I wonder if the history between E* and Murdoch was included in testimony to support premeditation and vindictiveness?

 

[nelson61]

Crappie,


"Murdoch got schooled a couple of times by Ergen. "

This could indeed be a battle between men and not companies. Two powerful men - both in control of their organizations and Ergen looking for revenge.

 

[Greg Bimson]

While I agree that Dish was violating the Distant Services clause they had an agreement with all but a few News Corp Affiliates. News Corp's decision to not sign onto this agreement, forced Dish to stop selling Distant Services.

That is actually untrue.

The problem here was that the higher court (the Court of Appeals) mandated that the lower court issue a permanent injunction. Fox/NewsCorp/Murdoch did not sabotage anything.

It was because of this mandate that Dish Network offered to settle the case. It was too little, too late, as the mandate for an injunction trumped the settlement. One has to remember that before the proposed settlement, the affiliate boards of all four major networks DID ask the Court of Appeals for the distant "death penalty". They got what they wanted, until Dish Network tried to settle.

Now the affilate boards of the four major networks are also trying to prevent the distant networks on All America Direct through NPS.

 

[Greg Bimson]

I wonder if the history between E* and Murdoch was included in testimony to support premeditation and vindictiveness?

Yes. Unlike the NDS and NewsCorp CEO's, one Mr. Charles Ergen did testify. This lawsuit was brought to the courts right after Murdoch "schooled" Ergen, by getting the FCC to reject the DirecTV/Echostar deal. And the defense attorneys did bring that up.

Still doesn't change the validity of the point, though. If NDS did leak the code, then there is a problem. And they should pay.

 

[Voyager6]

That is actually untrue.

The problem here was that the higher court (the Court of Appeals) mandated that the lower court issue a permanent injunction. Fox/NewsCorp/Murdoch did not sabotage anything.

It was because of this mandate that Dish Network offered to settle the case. It was too little, too late, as the mandate for an injunction trumped the settlement. One has to remember that before the proposed settlement, the affiliate boards of all four major networks DID ask the Court of Appeals for the distant "death penalty". They got what they wanted, until Dish Network tried to settle.

Now the affilate boards of the four major networks are also trying to prevent the distant networks on All America Direct through NPS.

But Fox did instigate the "death penalty" enforcement
Federal Register: Section 109 Report to Congress

In August, 2006, after its efforts to appeal the Eleventh Circuit’s ruling were rejected (but before the district court had implemented the appellate court’s order), Echostar entered into a $100 million post–judgment settlement agreement with the affiliates of ABC, NBC, and CBS under which Echostar would, notwithstanding the appellate court’s decision, be permitted to continue to provide network station signals to legitimately “unserved” customers. However, Fox did not join in the settlement and filed a motion with the district court demanding that it reject the settlement and implement the injunction as directed by the Court of Appeals.

 

[Tyralak]

What could be the possible outcome of this? Just financial damages?

 

[jacmyoung]

That is actually untrue.

...

It was true in a sense before the higher court's mandate, a settlement was reached, and only a handful FOX O&Os rejected the settlement, and BTW right after that DirecTV began advertising the prospect of DISH losing the distant signals, and urged those who would be impacted to switch to DirecTV.

As a matter of fact during that time, a very conservative think tank (forgot its name) publicly accused News Corp of violating the FCC agreement, and made its view known to FCC. My light-hearted speculation at the time was some yacht owners who used DISH for their distant signals on open waters must have called the think tank to do something on their behalf...

DISH of course did not fight on, in final analysis they decided to save the 70 million bucks (or $100 mil?) for better use, and turned off the signals, and did not lose many subs. Most distant subs got the nearest LIL signals anyway.

The real sad part of it was those other networks affiliates who actually could really use the settlement money from DISH (many of them were cash poor while trying to meet the digital transition) lost an opportunity to share that price.

 

[nelson61]

But Fox did instigate the "death penalty" enforcement
Federal Register: Section 109 Report to Congress

Reading about Eagen's personality, I'd say it's get even time (maybe).

 

[Voyager6]

Reading about Eagen's personality, I'd say it's get even time (maybe).

No, this is really about the financial losses that E* took due to the hacking of the smart cards. I believe that E* estimated the cost of replacing the smart cards around $100 million and that the piracy cost E* about $900 million in revenue.

 

[flyingsquirrel]

What could be the possible outcome of this? Just financial damages?

Yes, unless the Feds look at the record of the trial and think they want to make a criminal case out of it. My guess is that they decided a while ago not to do that.

My guess is also that the CEO and Murdoch decided NOT to testify because anything that they said could have been used against them in a criminal case.

What's more interesting is to see what the studios/program distributors will do if Dish wins. If I were a non-Fox distributor I would want my piece of this since this piracy hurt the channel providers as well as Dish.

 

[Greg Bimson]

It was true in a sense before the higher court's mandate, a settlement was reached

Incorrect. Once the higher court mandated that the lower court issue an injunction, Dish Network tried to settle. It was only when the Court of Appeals handed down their decision that Dish Network tried to pay-off the network affiliate boards.

But Fox did instigate the "death penalty" enforcement

Incorrect. Fox asked the District Court to do exactly what the Court of Appeals mandated the District Court to do.

There were three points handed out by the District Court:
1) Fox had the standing to ask for an injunction as defined by law
2) The Court of Appeals mandated that the judge at the District Court issue the injunction
3) A settlement cannot trump the mandate, since it is law that an injunction be issued.

Even if Fox didn't ask, points two and three still take precedence. The judge could not approve a settlement if the Court of Appeals told them to do something else.

 

[jacmyoung]

...Even if Fox didn't ask, points two and three still take precedence. The judge could not approve a settlement if the Court of Appeals told them to do something else.

DISH could have appealed to higher court citing the settlement reached but did not because FOX refused to accept the settlement, which by all account would be in the best interest of ALL PARTIES (except maybe DirecTV at the time), which by itself will satisfy the higher court. But it was a moot point since FOX made it clear it would not settle, for obvious reason.

There would be little reason for the court to insist on an injunction if all parties involved agreed to settle. The court could mandate the injunction only at the request of the networks, in this case FOX only at the end. If all networks agreed to drop the case, the injuction would be desolved.

Let me put it this way, had DISH refused to comply with the injunction, it would still be up to the networks to request the court to issue a contempt ruling to force DISH to comply. If all networks would accept the settlement, no one would have requested for contempt hearing, the injunction would then be desolved.

 

[Greg Bimson]

DISH could have appealed to higher court citing the settlement reached but did not because FOX refused to accept the settlement, which by all account would be in the best interest of ALL PARTIES (except maybe DirecTV at the time), which by itself will satisfy the higher court. But it was a moot point since FOX made it clear it would not settle, for obvious reason.

Incorrect. Dish Network's possible appeal would have made it back to the same Court of Appeals that told the District Court judge to issue the injunction. That Court of Appeals told the District Court to issue the injunction, which it did.

Dish Network also tried to appeal to the Supreme Court. SCOTUS replied they weren't touching the case.

There would be little reason for the court to insist on an injunction if all parties involved agreed to settle. The court could mandate the injunction only at the request of the networks, in this case FOX only at the end. If all networks agreed to drop the case, the injuction would be desolved.

Incorrect.

The Court of Appeals insisted on the injunction, and a settlement was not going alter the fact the judge was mandated to issue the injunction. The District Court was mandated to issue the injunction because all of the network affiliate boards and FOX network asked the Court of Appeals to force the death penalty. Once the Court of Appeals came back with the decision to agree with the broadcasters and force the injunction to be applied, any settlement was null and void because the injunction must be issued.

Let me put it this way, had DISH refused to comply with the injunction, it would still be up to the networks to request the court to issue a contempt ruling to force DISH to comply. If all networks would accept the settlement, no one would have requested for contempt hearing, the injunction would then be desolved.

Actually, there was a contempt proceeding. But that is a separate issue.

You do realize for a settlement to occur, the judge must actually sign-off the terms? The judge could not sign-off the terms of the settlement because the Court of Appeals told him to issue an injunction. And the reason the Court of Appeals issued the injunction was because the network affiliate boards and FOX asked the Court of Appeals for the death penalty injunction. Once the broadcasters got what they wanted from the Court of Appeals, it was then Dish Network that tried to settle by throwing $100 million into their faces. It certainly wasn't FOX's fault. Dish Network had eight years to settle the case, but only tried to do so after they would receive the death penalty.

This is all I need to state my case. From the Explanation of the injunction order, released in October, 2006:

Ultimately, whether Fox has standing is irrelevant to the Court’s implementation of the appellate court’s mandate; the Court has an obligation to implement the mandate issued by the Eleventh Circuit even without the request of any party.

“When an appellate court issues a clear and precise mandate . . . the district court is obligated to follow the instruction.” Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1516 (11th Cir. 1987) (en banc). A district court is not free to ignore the law of the case and reinterpret or circumvent an appellate court’s mandate where that mandate is specific and unambiguous. Id. at 1512, 1516. Moreover, the Court has a duty to carry out the mandate even without the application of a prevailing party. Thornton v. Carter, 109 F.2d 316, 321 (8th Cir. 1940) (stating that prevailing party was entitled to entry of appellate court’s decree without any application or motion on her part). Therefore, the Settling Parties’ argument regarding Fox’s standing to request implementation of the appellate court’s mandate are unavailing.

It didn't matter that Fox had asked for the injunction. They had standing to ask for it, but the point was moot, because the District Court had no choice but to issue the injunction