Closing arguments as DISH Network, NDS trial ends

[nelson61]

This was not a criminal trial. It was a civil trial. The courts want parties to settle civil actions and encourage settlements up to and after having made rulings. But, the parties have to agree.

If tomorrow, Dish and all the networks walked in and told the judge that all parties have agreed on a distant network agreement and they have cut a deal they want the judge to approve, the judge would be happy to approve the settlement.

 

[Greg Bimson]

Read this.

If tomorrow, Dish and all the networks walked in and told the judge that all parties have agreed on a distant network agreement and they have cut a deal they want the judge to approve, the judge would be happy to approve the settlement.

Nope. Read the above link.

 

[jacmyoung]

Read this.Nope. Read the above link.

The problem with your sticking to the language of the court is that you assume there will never be room for modification once a court decision is rendered. I can tell you a death penalty can be reversed if new evidence surface to justify such.

If today ALL networks walk into the court room and ask the judge to lift that injunction for just cause, the judge will, and the appeals court will not intervene unless some party object to such new ruling and appeals to the court.

The same way how you use the above narrow interpretation to make a certain prediction why DISH is dead in the water in the Tivo suit. The fact is DISH did not follow the language of the injunction to turn off the DVRs, because in their view they are in compliance with the injunction since they believe the new software no longer infringes. It will take Tivo to request a contempt hearing for the judge to issue such ruling to force DISH to turn off the DVRs. If during the hearing the judge agrees with DISH their new software no longer infringes, he should lift the injunction. Or if Tivo decides for whatever the reason not to ask for a contempt hearing, DISH will be free to continue to operate its DVRs in the face of the injunction, one of such reasons can be DISH and Tivo settle, there can be other reasons too.

The same would be true for the distants case, if DISH settled with ALL parties, and continued to carry the distants signals despite the injunction, since no one would have gone to the judge to request he issue a contempt ruling, the injunction would be dissolved, the judge will not initiate a contempt hearing in a civil case, the parties must request that or object to that to move the court.

Unless you truely believe you are better legal expert than DISH's legal team, and I know you do think that way at times because "DISH has lost time after time" in those cases. But keep in mind DISH should lose, because they were wrong, they did infringe, they did violate the distants rule. The reason they appeared to lose over and over was becasue they always choose rigorous defense as their strategy and fight to the end.

That is not the same as saying their legal team is clueless, at least not more so than you are. If your reasoning were correct, then yes indeed the armed marshalls would already be locking Charlie up in a cell.

 

[Greg Bimson]

If today ALL networks walk into the court room and ask the judge to lift that injunction for just cause, the judge will, and the appeals court will not intervene unless some party object to such new ruling and appeals to the court.

Nope. Will not happen. If you read what I attached, you will see why.

The same would be true for the distants case, if DISH settled with ALL parties, and continued to carry the distants signals despite the injunction, since no one would have gone to the judge to request he issue a contempt ruling, the injunction would be dissolved, the judge will not initiate a contempt hearing in a civil case, the parties must request that or object to that to move the court.

The broadcasters wanted Dish Network to follow the rules. The proposed settlement would have forced more than half of Dish Network's subscribers to lose their distant networks. There would not have been a settlement ever, because the judge could not accept it.

 

[Greg Bimson]

The problem with your sticking to the language of the court is that you assume there will never be room for modification once a court decision is rendered. I can tell you a death penalty can be reversed if new evidence surface to justify such.

There isn't any new evidence. Based upon the facts on much of the subscriber base receiving distant networks illegally, there is no way to have the injunction removed by a judge. The judge must issue an injunction for willful infringement.

Could they look the other way during the course of the injunction? Sure. Until someone complains about it. But there will never be a way for Dish Network to use the distant network injunction unless Congress changes the law.

 

[jacmyoung]

There isn't any new evidence. Based upon the facts on much of the subscriber base receiving distant networks illegally, there is no way to have the injunction removed by a judge. The judge must issue an injunction for willful infringement.

Could they look the other way during the course of the injunction? Sure. Until someone complains about it. But there will never be a way for Dish Network to use the distant network injunction unless Congress changes the law.

The point is the injunction is not meaningful if no one would ask the court to enforce it. DISH would continue to carry the distants if ALL parties agreed not to object, DISH would never have been in contempt of court since on one would have asked the judge to issue a contempt ruling.

Just like you said, until someone complains about it. But if no one ever complains...

 

[dangue]

Wow, this thread certainly went far afield. Any thoughts on what the current case will mean for the current parties?

 

[Greg Bimson]

Just like you said, until someone complains about it. But if no one ever complains...

The point being, there was no way that the broadcasters would get their $100 million and look the other way while an injunction took effect.

Anyways, back to topic. We'll find out what the current case will mean for the current parties once a verdict is reached. It is from that point forward we'll understand what courses of action are next.

 

[jacmyoung]

The point being, there was no way that the broadcasters would get their $100 million and look the other way while an injunction took effect.

Anyways, back to topic. We'll find out what the current case will mean for the current parties once a verdict is reached. It is from that point forward we'll understand what courses of action are next.

Yes there was a way. The reason the appeals court "mandated" the injunction was because the language of the injunction did not allow a settlement, but the judge is free to rework his injunction, at the request of the parties. In fact the judge did make such last attempt by asking parties to state their final words before he put the injunction in force. Why would he do so if it was pointless? But DISH simply decided to turn off the signals not to fight on. Yes they never wanted to pay that $100 milliom, it could be just an gesture to please the investors, whatever the reason, if all parties had reached a final agreement and told the judge in that last briefing by the judge right before he put the injunction in force that they on longer would wish him to carry out that injunction, he had the power to lift the injunction.

Where you were wrong was you thought the appeals court was forcing the judge to enforce his injunction, no it was not the appeals court's job to do so. The appeals court simply interpreted the judge's injunction correctly that he did not allow any settlement to replace his injunction, but he himself could have changed that language without the interference from the appeals court, which he attempted to do in the last minutes, but DISH decided not to bother.


As far as this case, no one has much to say until the jury produces a verdict, but if I have to make a guess, DISH is almost certain to win, the question is how the jury may assess the damages. The News Corp lawyer is arguing that they should not use DISH's formula for assessing the damages.

 

[Greg Bimson]

Yes there was a way. The reason the appeals court "mandated" the injunction was because the language of the injunction did not allow a settlement, but the judge is free to rework his injunction, at the request of the parties.

Incorrect. The reason the Court of Appeals "mandated" the injunction was because Dish Network engaged in a pattern or practice of willful infringement. The penalty, by law, for that infringement is a permanent injunction. The Court of Appeals, briefed by the broadcasters asking for a permanent injunction, gave one.

That injunction cannot be reworked, as it is the penalty for violating the law.

In fact the judge did make such last attempt by asking parties to state their final words before he put the injunction in force. Why would he do so if it was pointless?

I don't know. But when Judge Dimitrouleas of the District Court made his decision, he commented that, "the Court has an obligation to implement the mandate issued by the Eleventh Circuit even without the request of any party." It didn't matter what the parties said; he had to implement the mandated injunction.

Where you were wrong was you thought the appeals court was forcing the judge to enforce his injunction, no it was not the appeals court's job to do so. The appeals court simply interpreted the judge's injunction correctly that he did not allow any settlement to replace his injunction, but he himself could have changed that language without the interference from the appeals court, which he attempted to do in the last minutes, but DISH decided not to bother.

I wasn't even close to wrong. You are...

"Because the Eleventh Circuit found that Echostar engaged in a “pattern or practice” of SHVA violations, the Court is required, by statute, to enter a permanent injunction and does not have discretion to enter the parties’ consent judgment in place of carrying out the mandate."

In other words, the Court of Appeals wasn't happy with the injunction written by Judge Dimitrouleas, so the Court of Appeals mandated the permanent injunction as required by law. Also, a settlement cannot be accepted because the injunction must take place.

I'd love for this to stay on topic, but the amount of misinformation is completely misleading.

 

[jacmyoung]

... The Court of Appeals, briefed by the broadcasters asking for a permanent injunction, gave one.
...

Here is the key, the court acts on behalf of the injured or the winning parties in a civil case, if all parties withdraw from the complaint, there is no reason for the court to intervene.

Where as the court had every reason to punish DISH, when asked for by the networks. What you are saying is all the lawyers working on this case were wrong to even waste their time to work on the settlement, including those worked in favor and in agreement of that settlement, and including the lawyers for FOX, who wasted time arguing for the junction since they did not have to.

The law was enacted to protect the networks for their content rights, but if ALL networks agreed to accept the money and drop the injunction request, and the court insists the injunction to carry out, it will be to punish the networks, which will be against the intent of the statute. At a minimum the law can be easily modified at the request of the networks. But since FOX refused to go along, it ended this way, not because you correctly interpreted how the system works, rather that FOX did not go along.

The DISH's current response to the Tivo injunction is a clear example of how injunction process may unfold. Things can change as circumstances change.

 

[mike123abc]

If today ALL networks walk into the court room and ask the judge to lift that injunction for just cause, the judge will, and the appeals court will not intervene unless some party object to such new ruling and appeals to the court.

You made the poor assumption that the stations had the only say in it. Actually the law is a statutory way around copyrights that the content owners own, AND the stations. The stations do not have the ability to allow out of market programming for the content they provide. They would have to have copyright clearance for everything they air for national showing. The law essentially told the copyright owners that they had no recourse AND the station owners they had no recourse when a distant network was used by a DBS company.

So, if all the stations were to agree to not complain, the copyright owners could seek damages against the stations since the stations did not have the rights to allow the retransmission of the programming outside their designated markets.

Even if Fox were to go along with the original deal and ask to drop the suit, the suit could start up again if any copyright owner complained. No way every copyright owner would stand by and not want part of the the 100 million promised.

 

[Greg Bimson]

Here is the key, the court acts on behalf of the injured or the winning parties in a civil case, if all parties withdraw from the complaint, there is no reason for the court to intervene.

Here is the key...

the Court has an obligation to implement the mandate issued by the Eleventh Circuit even without the request of any party.

If all parties withdrew (and why anyone would withdrawl from a suit after winning it is beyond me), the Court would still have to act on a mandate from the Court of Appeals. It is mandatory.

That is the difference between a normal civil case and the distants case. The distants case has a prescribed remedy for a pattern and practice of willful infringement. There isn't an avoidance of an injunction once the pattern and practice of willful infringement was established. It is the same groups that would have settled for the $100 million that asked the Court of Appeals for the injunction. They wanted Dish Network to settle, but Dish Network was hoping the Court of Appeals would overturn, vacate or remand the guilty verdict again. When the Court of Appeals sided with the broadcasters and mandated the permanent injunction, it was 100 percent over, whether or not Fox asked for the injunction:

Because the Eleventh Circuit found that Echostar engaged in a “pattern or practice” of SHVA violations, the Court is required, by statute, to enter a permanent injunction and does not have discretion to enter the parties’ consent judgment in place of carrying out the mandate.

This is, of course, unlike the TiVo case, where a settlement can take place. There isn't a law that forever forces a permanent injunction to be issued for infringement. If the parties settle, there will be a dismissal.

Or, in the case we are discussing now, where the judge told both sides they should settle, because no one should want to see the dirty laundry that was about to be kicked up.

 

[jacmyoung]

... When the Court of Appeals sided with the broadcasters and mandated the permanent injunction, it was 100 percent over, whether or not Fox asked for the injunction:...

Yes when the court sided with the broadcasters, but the court could have sided with the same broadcasters had the broadcasters asked to allow a settlement, but such settlement was not in place nor had a chance to be agreed on by FOX at the time.

What I am saying is the appeals court of course was in the right to "mandate" the injunction based on their interpretation of the statute and teh request from the networks. But if ALL networks decided to settle, the injunction could be modified or lifted, if not right the way, a way around would have been possible. I agree DISH was late in offering the settlement, I however do not think DISH was sincere about the settlement which was why they did so in the last minute. I didn't see Charlie willing to fork over $100 million for just a handful of distant subs, it was for the show to tell the investors he made a good faith effort and it was FOX's fault, and he could use this against News Corp later if necessary.

..This is, of course, unlike the TiVo case, where a settlement can take place. There isn't a law that forever forces a permanent injunction to be issued for infringement. If the parties settle, there will be a dismissal....

Which was why I said many times you could not use the outcome of this distants case to argue for your prediction of the Tivo case, which was what you had done before.

Now to try to get back to the subject is easy, one can speculate that if DISH wins (very likely) this NDS case, they can use it as a leverage to get better terms on some FOX channels carriage such as FOX News HD, FOX Business HD, Speed HD and a few others, and they could even try to get FOX back in the distants game and carry the distants again, depending how badly Charlie wants the distants. I just don't think he cared about the distants before, and only less so now.

I think he smells blood and wants the money more than anything.

 

[Greg Bimson]

Which was why I said many times you could not use the outcome of this distants case to argue for your prediction of the Tivo case, which was what you had done before.

The difference in thought between you and I is how the contempt proceedings will play out. In my opinion, Dish Network and Echostar may get to argue that they no longer infringe because they downloaded new software, but as everyone is waiting for verification, the judge may force the disconnect of the receivers until it is verified the software no longer infringes.

But if ALL networks decided to settle, the injunction could be modified or lifted, if not right the way, a way around would have been possible.

There is a workaround, and it involves clearing every piece of copyrighted material on a given station in order to rebroadcast it nationwide. The enjoined license just makes it much easier if used to deliver distant networks.

But the injunction against the use of the distant network license will never be modified, for any reason. Congress, on the other hand, may actually modify the law to allow Dish Network to use it again.

 

[nelson61]

I think you got it right. He want the money. Give him one more year to get his satellites up and running and the locals will all be covered so he has little interest in making a deal with Fox.

The question is what will the jury decide-- " did the lab in Israel leak a week or two after they reverse engineered the card as Dish contends or was it the pirates in Canada as NDS contends.

 

[tomcrown1]

It had to be those folks in Israel it just has to be or were would Charle get the DO RA ME for more HD Channels???

 

[nelson61]

Just so all of us jailhouse lawyer are ready when the jury decides. Here's a link to a copy of the Federal Rules of Civil Procedure. Rule 60 is informative.

LII: Federal Rules of Civil Procedure

 

[jacmyoung]

... but as everyone is waiting for verification, the judge may force the disconnect of the receivers until it is verified the software no longer infringes....

That is a very big prediction, not that I don't think it is possible, but given that the hardware verdict was reversed, and only the software verdict is in place, it will be hard to argue DISH may not be allowed the opportunity to argue for their new software claim while the DVRs continue to operate.

In similar cases when the winning party requested contempt ruling, the judges did take time to hear all sides before determining if the new devices were indeed still infringing or not, and only when it was confirmed the new devices were no more than colorably different, did the judges get serious and started threatening the offenders.

Keep in mind the injunction itself clearly defines "only colorably different" condition, and the determination of such condition will be rather quick, it makes no sense to force the disconnect for such time period because the prospect of finding the new software "more than colorably different" is great, therefore the software will be allowed to be used while the judge determines if the new software still infringes or not, and it will then constitute an unnecessary brief disruption of the DVR use for millions of users.

 

[jacmyoung]

I think you got it right. He want the money. Give him one more year to get his satellites up and running and the locals will all be covered so he has little interest in making a deal with Fox.

The question is what will the jury decide-- " did the lab in Israel leak a week or two after they reverse engineered the card as Dish contends or was it the pirates in Canada as NDS contends.

As the judge had indicated himself, the most damning evidence will be the fact both CEOs of the defendants refused to testify, and the only reason for not testifying is to avoid self-incrimination. Such prospect will weigh very heavily on the minds of the jury.

IMHO, even it was not the NDS pirate's leak that caused the major damage, the fact they reverse engineered the DISH security system by the use of a known pirate, kept him on pay roll and offered him bonus the same time the codes were leaked on the web, and the fact the CEOs refused to testify, makes a strong case for DISH.

Though anything is possible by the jury, and News Corp can even get lucky and have the verdict reversed on appeal, you never know.