# What will happen due to court ruling on DVR-Tivo case??



## RVRambler (Dec 5, 2004)

I assume you all are aware of the tivo-dish court case which dish lost. Dish is to cease dvr service within I think 30 days of ruling, about 10 days ago or more. Dish immediately attempted a stay on the ruling while appeal goes forward but it was rejected, so whammo to us DVR users!!!!

Any news from DIsh on this? 

Does anyone know exactly it was that Dish supposedly 'stole' for the DVRs?

What the heck will happen?

Will all of a sudden I lose the ability to record events ?

I think this explains the delay of the Directv HD dvr, they probably had to strive to get around the Tivo s/w thing.


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## Mike D-CO5 (Mar 12, 2003)

You will lose your dvr service , the world will end as you know it .:eek2:


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## Mike D-CO5 (Mar 12, 2003)

Okay really I think that Charlie will pay to license the Tivo software rather than lose 4 million dvr customers and lose potential ones too. A sat service without a dvr or distant networks will only continue to lose customers and will go bankrupt. Isn't that what happened to Voom?


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## Mark Lamutt (Mar 24, 2002)

One way or the other, you won't lose your DVR service. Whether Dish settles with Tivo or not, come 30 days from now, you will still be using your 921 the same way that you're using it today.


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## DonLandis (Dec 17, 2003)

Mark is right, IMO-
From a business perspective- this is not about TIVO wanting to be a monopoly on DVR technology- It is all about TIVO getting paid for the technology they feel they have patent rights to and the court upheld those rights. I posted elsewhere that Dish will negotiate a deal and this will probably be done in the last minute in true Charlie style. If Dish chose to shut down its DVR service it would be suicide and Dish knows this. 
Dish will pay TIVO and that means higher rates for us. Whether Dish licenses the TIVO hardware and/or software remanis to be seen. Personally, I don't care one way or the other although TIVO, IMO, has a better application of NBR than Dish but its guides are slower than either 921 or the 622. 
Unfortunately, Dish is caught between a rock and a hard place on this and by waiting until now to strike a deal has little bargaining power. 

As for DirecTV release of its own DVR- DirecTV already had a deal contract with TIVO. There will be no lawsuit or the need to get around TIVO.


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## ClaudeR (Dec 7, 2003)

I know it will all work out, but Charlie has a habit of waiting until AFTER the deadline - he may get more leverage that way, but the customer gets screwed for a few days. I just hope the existing recordings don't get screwed up.


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## sNEIRBO (Jul 23, 2006)

DonLandis said:


> Mark is right, IMO-
> From a business perspective- this is not about TIVO wanting to be a monopoly on DVR technology- It is all about TIVO getting paid for the technology they feel they have patent rights to and the court upheld those rights. I posted elsewhere that Dish will negotiate a deal and this will probably be done in the last minute in true Charlie style. If Dish chose to shut down its DVR service it would be suicide and Dish knows this.
> Dish will pay TIVO and that means higher rates for us. Whether Dish licenses the TIVO hardware and/or software remanis to be seen. Personally, I don't care one way or the other although TIVO, IMO, has a better application of NBR than Dish but its guides are slower than either 921 or the 622.
> Unfortunately, Dish is caught between a rock and a hard place on this and by waiting until now to strike a deal has little bargaining power.
> ...


From what I remember of my "Itellectual Property Law" class for my MBA . . . Software can not be patented, it's considered a form of writing and can only be copyrighted. Copyright cases for software are virtually impossible to win. You would need proof that someone literally lifted your code and put it in theirs.

Equipment can be patented. But, DISH will not have to literally purchase and use TiVo equipment to "license" it. They can just pay a fee to TiVo for the equipment / features they've developed that infringe on TiVo's patents.

Likewise, I remember something in the Patent code saying that the courts can not cause a company to stop using any technology, even technology that infringes on a patent, if it would effect their business detrementally, or would seriously impact their customers experience or service. That being said, they can impose (and often do impose) serious fines for infringment (up to and including an amount equal to the profit generated by the infringement), or high fees for licensing of the infringing technology (imagine them forcing DISH to pay $100 to TiVo for every DVR they sell from now on).

There is also precedence for companies that improve upon a patent. In those cases they have to pay very little for "licensing". I'm not sure what exactly TiVo has patented with these devices, or where DISH DVRs are infringing. But I've owned DirecTV Tivo units in the past, and in my opinion the DISH's DVR is a far superior machine.


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## sNEIRBO (Jul 23, 2006)

RVRambler said:


> I assume you all are aware of the tivo-dish court case which dish lost. Dish is to cease dvr service within I think 30 days of ruling, about 10 days ago or more. Dish immediately attempted a stay on the ruling while appeal goes forward but it was rejected, so whammo to us DVR users!!!!
> 
> Any news from DIsh on this?
> 
> ...


DISH lost the original TiVo suit back in April.

Federal Appeals Court overruled the lower court on the injunction portion of the ruling on August 18.

See attached -

http://www.gizmodo.com/gadgets/dish-network/


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## pjm877 (Apr 27, 2003)

naw.. TIVO will want $12.99 each month for each Receiver. 


time to dig deep.


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## BarryO (Dec 16, 2003)

sNEIRBO said:


> From what I remember of my "Itellectual Property Law" class for my MBA . . . Software can not be patented, it's considered a form of writing and can only be copyrighted.


Source code acquires copyright as soon as it is typed (unless is was written by a Federal Gov't. employee; U.S. docs do not have copyright). However, patents can also be granted on Means and Procedures implemented entirely in software. Just needs to be a useful, novel "invention".



> Likewise, I remember something in the Patent code saying that the courts can not cause a company to stop using any technology, even technology that infringes on a patent, if it would effect their business detrementally, or would seriously impact their customers experience or service. That being said, they can impose (and often do impose) serious fines for infringment (up to and including an amount equal to the profit generated by the infringement), or high fees for licensing of the infringing technology (imagine them forcing DISH to pay $100 to TiVo for every DVR they sell from now on).


Nope, a patent grants an inventor exclusive, temporary ownership of the inventor (20 years from filing) in exchange for public disclosure. They can demand injunctions against use, sale, import, etc.

You may be thinking of a patent embodied in an industry standard, for which the inventor has previously stated they would license on a "reasonable and nondiscriminatory" basis. In that case, getting an injunction is just about impossible. Tivo, AFAIK, has not made such a statement, so they can demand whatever they want to.



> There is also precedence for companies that improve upon a patent. In those cases they have to pay very little for "licensing".


?? Not sure what this refers to.


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## koralis (Aug 10, 2005)

BarryO said:


> Nope, a patent grants an inventor exclusive, temporary ownership of the inventor (20 years from filing) in exchange for public disclosure. They can demand injunctions against use, sale, import, etc.
> 
> You may be thinking of a patent embodied in an industry standard, for which the inventor has previously stated they would license on a "reasonable and nondiscriminatory" basis. In that case, getting an injunction is just about impossible. Tivo, AFAIK, has not made such a statement, so they can demand whatever they want to.
> .


I think he's referring to this, which discusses remedies in discovered infringment. Note that not granting a license when they have granted others licenses, or would have previously given a license at a given price is not really allowed. After winning the court case proving infringement, they're entitled to *reasonable royalities* and can't jack up their rates as extortion. ("pay me 5 times my normal rate or you get no license at all and will go out of business.") This is noted as items 1, 12, and 14.

The fact that Tivo DOES grant licenses to others for the technology means that they can basically not selectively choose to withhold one from Dish (item 4) so long as Dish is willing to pay what is considered a reasonable royalty.

http://www.ipwatchdog.com/patent_damages.html



> In the event that a defendant is found liable for infringing one or more patent claims the patent owner is entitled to request various remedies, some of which are routinely granted and others of which are rather rare. Below are the various potential remedies.
> 
> Lost Profits
> Reasonable Royalty
> ...


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## koralis (Aug 10, 2005)

In a similar sort of case, Finisar's request for permanent injunction was denied. Getting an injunction barring production when someone can and will pay for a license isn't easy at all, even when the patent holder hasn't set the precedent of licensing the same patent to others.

http://www.patentlyo.com/patent/2006/08/injunction_deni.html



> Finisar v. DirectTV Group (E.D. Tex. 2006).
> 
> A jury found willful infringement by DirectTV. However, in the post-trial hearing, the court denied Finisar's motion for injunctive relief and instead granted a compulsory license.
> 
> ...


http://www.law.com/jsp/article.jsp?id=1153744535390


> Legal relief in the form of an *injunction -- a shutdown to prevent continued use of an infringing device or process -- has long been considered the birthright of any patent owner*. Patent trolls have made use of that fact, and the threat of prolonged patent litigation, to extract exorbitant license fees from allegedly infringing companies. Companies fearful of being shut down, or afraid of the cost of patent litigation, often will take the license as the path of least resistance. But *the U.S. Supreme Court recently has taken away the patent owner's birthright of the permanent injunction*, which may have the intended effect of deterring patent trolls. In the process, this decision may also have decreased the value of potential licenses.
> 
> In eBay Inc. v. MercExchange LLC, the Supreme Court returned injunctive relief back to basics, *requiring a patent owner, like any other plaintiff seeking an injunction, to prove entitlement to injunctive relief*. In the dispute, eBay was accused of infringing MercExchange's patented buy-it-now feature on its auction site. MercExchange was not in the business of providing buy-it-now services, but rather of selling licenses to third parties under its patent.
> 
> ...


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## DonLandis (Dec 17, 2003)

BarryO and koralis- You guys are beginning to make this a law school class. Interresting but what people want to know is the direct effect of this case on them. As I understand it- none! for the moment since the order to shut off our 921's was blocked. Now the whole thing is pending on future decisions. Bottom line for us couch potatos? Go watch your recorded , time shifted programs and enjoy it, probably until it breaks on its own. I think we stand a better chance of losing the 921 due to MP4 obsolescence than this TIVO win.


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## Dr. Smoke (Aug 19, 2006)

Your training is a little out-of-date sNEIRBO.

The Digital Millennium Copyright Act gave broad discretion to corporations over what is protected, and was written so generally as to be almost universal. Various other laws passed by Republicans over the past eight years have simultaneously broadened what can be patented (including software and 'business processes', ie a one-click purchase button), while making it ridiculously easy to get a patent, and enabling patent-holders to extend their patent almost indefinitely. (study Paxil)

Brave New World.


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## Dr. Smoke (Aug 19, 2006)

DonLandis said:


> what people want to know is the direct effect of this case on them. As I understand it- none! for the moment since the order to shut off our 921's was blocked.


The effect on us is clear. Higher prices.

It could be an additional $15, but that would cause a severe backlash so Dish may subsidize the additional cost from other revenue, and price increases for non-DVR customers. There is no other option.

Charlie gambled on this, just like he gambled on DirectTV acquisition and forfeited $200mm. I guess he usually wins when screwing people to the wall, and so it's become his M.O.

When the price increase happens, at the very least I'm giving my 942 back, I will require for a refund of half my $250, and will set up MythTV/KnoppMyth. Screw it, can't save 942 recordings offline anyway... so I'll be $aving, and also will have freedom to archive whatever I want, in HD. :lol:


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## DonLandis (Dec 17, 2003)

As far as cost goes- Dish will remain a competitor in this business, so whatever the rates will be will be based on the market at that time, The difference is whether the E* coffers get filled with reserve cash from these rates or whether it goes to pay for law suit losses and gambling losses. IMO, those who cut and run over a 5% increase over something like this and then give up the opportunity to have the great HDTV channel choices plus the quality they are now giving us with even more channels to come will be the real losers. I have D*, E* and Comcast here for personal reasons but ever since about June this year with the latest MP4 collection of channels, E* has about 95% of my viewing time. Not because I like Charlie but because they just give me the best selection of programming, no contest. 
Regarding your archiving desire- Several of us are currently doing this with our 921's, ie multiple hard drives for storing movies. I look forward to Dish's offering of USB ext. HD's too for the 622. While the HD TIVO has archiving hard drives too, unfortunately, DirecTV is just 3 years behind the current trend in HDTV choices. They just don't have the Satellite capacity to do much with HDTV like Dish can.


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## Dr. Smoke (Aug 19, 2006)

To archive by disk is short-term. The data is encrypted, and so requires its receiver; as technologies change, likely the archived data will be lost. Not to mention magnetic domain migration in all magnetic media, and the very idea of the taking of our Fair Use rights in the first place. 

We had Fair Use rights for analog data (Sony Betamax decision), but it has been taken away from us for digital (DMCA). Go ahead, buy into the corporate pirates' line that customers are pirates, but you are shackling your own self.

Luckily, there are options for those of us who see the forest, not the trees.


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