# TiVo and Echostar have filed their latest briefs



## CuriousMark (Jan 13, 2005)

Dish's brief, in response to TiVo's motion charging Dish with contempt of court was sealed, so there is nothing to see. TiVo's response to Dish's request to be able to repair infringing units is available to see.

If you are interested in following the case it is continuing to be discussed openly at the Investor Village website and the TiVo brief is available for free from Mainer_Ayah's website. Feel free to join in the speculation and argumentation there.


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## Bonanzaair (Aug 26, 2006)

Thanks for the info. Mainer_Ayah has been great at tracking all the documents and offering great insight to the proceedings.

Bonanza


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## ZeoTiVo (Jan 2, 2004)

CuriousMark said:


> Feel free to join in the speculation and argumentation there.


we are free to speculate and argue/debate the trial and related filings here as well. the other thread only went south when people started going off on web sites and name calling and various other unrelated to the trial personal things.

anyone read what is public and have a summary of where they think things stand?


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## steve614 (May 1, 2006)

Why would Dish's brief be sealed?
That makes me think of cases where the accused party admits wrongdoing, but as part of an agreement, the info is not made public.

Maybe I watch too much Law & Order.


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## MichaelK (Jan 10, 2002)

I'm wondering that too- is dish tryin gto protect the name of a child in there? (I doubt that's the reason- LOL)


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## ZeoTiVo (Jan 2, 2004)

steve614 said:


> Why would Dish's brief be sealed?


maybe they did not wash them first 

More than likely it contains private DISH competitive information that it does not want other companies to know.


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## CuriousMark (Jan 13, 2005)

It looks like Dish has gotten an extension to file their writ of Certiorari with the Supreme Court from July 10 to August 11. They delayed their Delaware filings, they got this delay and they filed a sealed response in Texas all at about the same time. Could it be that they are finally talking with TiVo? We can only hope.

Link posted by James Long at DBSTalk forum.
http://www.supremecourtus.gov/docket/08a1.htm


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## steve614 (May 1, 2006)

Yeah, I hope they are begging Tivo to be lenient.

CRACK THE WHIP, TIVO!


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## acvthree (Jan 17, 2004)

Could this be just a delaying tactic?

They've had many opportunities to negotiate with Tivo before this and have not gone that route.

Al


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## gastrof (Oct 31, 2003)

CuriousMark said:


> It looks like Dish has gotten an extension to file their writ of Certiorari...


Weren't those the guys with the weird hair on BABYLON FIVE?


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## gastrof (Oct 31, 2003)

steve614 said:


> Yeah, I hope they are begging Tivo to be lenient.
> 
> CRACK THE WHIP, TIVO!


I still say TiVo ends up taking ownership of Dish Network, and there will be satellite TiVos aplenty!!!


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## swinca (Jun 19, 2003)

gastrof said:


> I still say TiVo ends up taking ownership of Dish Network, and there will be satellite TiVos aplenty!!!


That would definitely work for me. I am a loyal Tivo fan with a lifetime sub, but I am also a Dish customer. I just hope I don't end up getting screwed by whatever the outcome is.


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## dig_duggler (Sep 18, 2002)

gastrof said:


> I still say TiVo ends up taking ownership of Dish Network, and there will be satellite TiVos aplenty!!!


God please. I can't work with my cable company anymore and hate my options right now (which are Dish or Direct TV). I'm standard + OTA with an S3 out of spite (and, well, gross incompetence from cable).

I do not care for Tivo's current business model (highly provider dependent).


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## RoyK (Oct 22, 2004)

There's about as much chance of TiVo taking ownership of Dish Network as there is of Joe's body shop buying US Steel.


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## dig_duggler (Sep 18, 2002)

I know, but a man can dream. I really have no other options at this point.


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## Adam1115 (Dec 15, 2003)

CuriousMark said:


> Dish's brief, in response to TiVo's motion charging Dish with contempt of court was sealed, so there is nothing to see. TiVo's response to Dish's request to be able to repair infringing units is available to see.
> 
> If you are interested in following the case it is continuing to be discussed openly at the Investor Village website and the TiVo brief is available for free from Mainer_Ayah's website. Feel free to join in the speculation and argumentation there.


Uhm, care to provide a link, considering googleing "Mainer_Avah's website" only produces this thread...?


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## ZeoTiVo (Jan 2, 2004)

Adam1115 said:


> Uhm, care to provide a link, considering googleing "Mainer_Avah's website" only produces this thread...?


the link was also banned from here


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## ZeoTiVo (Jan 2, 2004)

dig_duggler said:


> God please. I can't work with my cable company anymore and hate my options right now (which are Dish or Direct TV). I'm standard + OTA with an S3 out of spite (and, well, gross incompetence from cable).
> 
> I do not care for Tivo's current business model (highly provider dependent).


 I am sure TiVo does not care for the waiver that DISH and DirectTV got on open access security so they can remain closed and refuse TiVo access.


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## CuriousMark (Jan 13, 2005)

Adam1115 said:


> Uhm, care to provide a link, considering googleing "Mainer_Avah's website" only produces this thread...?


Try googling davy_v_goliath


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## bidderman9 (Nov 8, 2007)

I posted a copy on my website. I credit Mainer for the source:

http://tiny url.com/echoreply-pdf
arg... For some reason the link wont save correctly (remove the space between tiny url)

It seems to me like Echo* is trying to argue the technical points while TiVO is agruing the legal points. I am not so sure that the judge will appreciate Echo* tactics.

Let try to keep this thread open. No personal attacks, just discuss the topic at hand. :up:


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## nrc (Nov 17, 1999)

Wow. That document is strange. They actually claim to have complied with the injunction. They disabled DVR functionality. Then they immediately downloaded new supposedly non-infringing DVR software.

They also effectively admit that the hardware is infringing and then claim that TiVo missed their opportunity to argue that point. 

Some of the logic in this document strikes me as really tortured and bizarre.

BTW, the redacting in this document isn't very effective. I was able to copy and paste the original text. I won't report it since I wouldn't want to violate any court orders. Most of it is pretty mundane and I'm not sure why they bothered.


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## samo (Oct 7, 1999)

nrc said:


> Wow. That document is strange. They actually claim to have complied with the injunction. They disabled DVR functionality. Then they immediately downloaded new supposedly non-infringing DVR software.


Technically, that is a correct statement. During software upload all functionality including DVR is disabled. Boxes are just a bunch of parts that are installing the new software. If new software is not infringing, then these boxes are effectively new units that have nothing to do with infringing units except that they used to be disabled (for whatever number of minutes) to comply with an injunction.


> They also effectively admit that the hardware is infringing and then claim that TiVo missed their opportunity to argue that point.


Care to point out a place that they do it? Like page number or preferably a quote. I couldn't find it in a document. 


> Some of the logic in this document strikes me as really tortured and bizarre.


Like what? Example please.


> BTW, the redacting in this document isn't very effective. I was able to copy and paste the original text. I won't report it since I wouldn't want to violate any court orders. Most of it is pretty mundane and I'm not sure why they bothered.


That is brilliant! How did you guess to try it? Would never occur to me to just highlight black-out portion and copy and paste. Actually, some black-out portions are very interesting. Like number of older (previously infringing units) still in a field or technical details of the new software.


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## bidderman9 (Nov 8, 2007)

nrc said:


> Wow. That document is strange. They actually claim to have complied with the injunction. They disabled DVR functionality. Then they immediately downloaded new supposedly non-infringing DVR software.


IMO I think that is a stretch. In terms of the contempt hearing, they are argueing technical issues. I don't think it will fly for the contempt hearing. They may be able to argue that at another hearing, but not this one. It is like saying that I went to Taco Bell and got a cup for water. I filled it with soda breaking the rule, but then drank it and immediately follow up by filling it with water there by no longer breaking the rules.



nrc said:


> They also effectively admit that the hardware is infringing and then claim that TiVo missed their opportunity to argue that point.


I missed that point when I was skimming through the doc. I will have to check it out.



nrc said:


> Some of the logic in this document strikes me as really tortured and bizarre.


 I have to agree with this one. It sure seems like some back a$$ way of thinking.



nrc said:


> BTW, the redacting in this document isn't very effective. I was able to copy and paste the original text. I won't report it since I wouldn't want to violate any court orders. Most of it is pretty mundane and I'm not sure why they bothered.


 Nice... I am an IT guy and I did not even think of that one. Excellent...


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## bidderman9 (Nov 8, 2007)

"TiVo now takes the untenable position that EchoStar violated the injunction because,
after disabling the DVR functionality in its Infringing Products, EchoStar immediately supplied
those units with new software that provides DVR functionality without infringing TiVos patent."

If you check out the the redacted text, it really did not work out that way. Unless you consider that the DVR functionality is disabled during a reboot, they did not disable the DVR functionality first. This is exactly why they are not going to get into the technical arguements in the contempt hearing. 

The other sticky bone of contention that has not been discussed here is that they started with the original TIVO code base, ripped out a section of code and inserted their own code and called it their code. They did not develop their own code base. They modified it and called it their own code.


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## ZeoTiVo (Jan 2, 2004)

bidderman9 said:


> "TiVo now takes the untenable position that EchoStar violated the injunction because,
> after disabling the DVR functionality in its Infringing Products, EchoStar immediately supplied
> those units with new software that provides DVR functionality without infringing TiVos patent."


 exactly, the only one that has said the new software is non-infringing is echostar - what purpose is an injunction if the business it is against can just say - oh we stopped so everything is fine now.



> The other sticky bone of contention that has not been discussed here is that they started with the original TIVO code base, ripped out a section of code and inserted their own code and called it their code. They did not develop their own code base. They modified it and called it their own code.


do you have asource for that? I can see it as true but would really like to know how to back it up if I am to repeat it.


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## Southie Boy (Jun 21, 2008)

CuriousMark said:


> Try googling davy_v_goliath


http://southernme.com/DAVY_v_GOLIATH/ I keep it on my desktop and use it as a reference to the case documents. It is really helpful. (and I didn't forget to send the guy a couple bucks to help cover the costs of the documents).


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## Curtis (Dec 2, 2003)

bidderman9 said:


> The other sticky bone of contention that has not been discussed here is that they started with the original TIVO code base, ripped out a section of code and inserted their own code and called it their code. They did not develop their own code base. They modified it and called it their own code.


Ummm... no.

Judge Folsom 08-17-06:



> As Plaintiff admits, this is not a copying case. 6/28/06 Hr. Tr. at 9:7-8; see also Dkt. No. 739 at 7. Defendants worked to develop their own DVR device for a number of years even before Plaintiffs company had been formed.


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## jtreid (Jan 12, 2006)

I dunno guys/gals, it looks like a good argument against contempt. If they complied by the letter of the injunction and released new firmware that disabled the infringing hardware and there's no way to reenable the firmware at the box, it sounds like they no longer have an infringing product.

The fact that the model number didn't change seems irrelevant. If Tivo has reviewed the new implementation and says it doesn't infringe, then I somewhat agree with E* in this case. Tivo is just trying to inflict more pain when they no longer have a dog in the fight.

I'm not an attorney, but have had to do something similar to what E* did: design around a patent. A lot of times, the design around simply turns out to be a crippled product. However, if E* gets a patent on the new design around, they should be exonerated of any infringements on Tivo's patent.


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## segaily (Aug 3, 2003)

jtreid said:


> The fact that the model number didn't change seems irrelevant. If Tivo has reviewed the new implementation and says it doesn't infringe, then I somewhat agree with E* in this case. Tivo is just trying to inflict more pain when they no longer have a dog in the fight.


I do not think TiVo has actually said the new software does not infringe. What they said at trial was if it was done in a certain way it would not and Echo now says that is what they did. Echo also seemed to say that by TiVo not saying it still infringed it was as good as saying it did not infringe.

I have to admit that after reading echo brief it sounds good, but for what both sides are paying to have these things written of course it will sound good.

I have no idea who will win this, but I really doubt TiVo would be wasting money on continuing the case unless they felt they still had at least some chance of winning their point.


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## Curtis (Dec 2, 2003)

jtreid said:


> If Tivo has reviewed the new implementation and says it doesn't infringe, then I somewhat agree with E* in this case.





> "*TiVo says that "EchoStar's modified software does not avoid infringement*," and would probably ask for an immediate shutdown of said services in a status conference scheduled for this week. If the court agrees, that would essentially force Echostar/Dish to sign a license agreement with TiVo and start making annual payments to the enemy, or else upset its own users when their DVRs suddenly stop working. "


Link


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## bidderman9 (Nov 8, 2007)

ZeoTiVo said:


> do you have asource for that? I can see it as true but would really like to know how to back it up if I am to repeat it.


Just so I don't get myself in trouble, check out the redacted text, below "The process of translating its design ideas" They discuss how to combine the code.


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## bidderman9 (Nov 8, 2007)

Curtis said:


> Ummm... no.
> 
> Judge Folsom 08-17-06:


That was before Echo* attempted to create thier own "non-infringing" code. How can you create your own code when you "combine" code bases from existing code? By their own brief, they did not do it from scratch.


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## SullyND (Dec 30, 2004)

nrc said:


> BTW, the redacting in this document isn't very effective. I was able to copy and paste the original text. I won't report it since I wouldn't want to violate any court orders. Most of it is pretty mundane and I'm not sure why they bothered.


LOL even better, if you have Acrobat Professional you can just delete the black boxes in Acrobat.


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## bidderman9 (Nov 8, 2007)

Lets talk about the Echo* claim that they disabled the DVR and therefore complied with the letter of the injunction. SO as not to discuss the redacted text, lets use the TiVO update as an analogy. TiVO decides to distribute a new update (lets call it version 2). The Tivo is currently running on version 1. At the time Tivo completes the download of the update (version 2), the unit is still running on Version 1. A reboot is required. After the reboot the Tivo is running Version 2. Accoring to this scenario, Echo* would claim that the DVR funcationality was disabled before loading Version 2. Is a reboor disable the DVR functionality? You be the judge...
In order to accomplish this, TiVo you have to do a version update download to disable the DVR functionality, reboot, download version 2 and then reboot again. Let just say that Echo* (I mean TiVO) did not do this. In my example of course....

But once again, I have always said that this contempt hearing will not be about the technical issues, so it really is irrelevant.


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## danieljanderson (Nov 19, 2002)

I think the thing that helps echostar out here, is that they were able to get the new software in during the stay.


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## Curtis (Dec 2, 2003)

bidderman9 said:


> That was before Echo* attempted to create thier own "non-infringing" code. How can you create your own code when you "combine" code bases from existing code? By their own brief, they did not do it from scratch.


So their infringing code wasn't a copy but the new code is a copy. Unbelievable.


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## bidderman9 (Nov 8, 2007)

danieljanderson said:


> I think the thing that helps echostar out here, is that they were able to get the new software in during the stay.


But that is not what the injunction order says to do. It says that they have to disable the DVR functionality.


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## segaily (Aug 3, 2003)

bidderman9 said:


> That was before Echo* attempted to create thier own "non-infringing" code. How can you create your own code when you "combine" code bases from existing code? By their own brief, they did not do it from scratch.


Well for once in Echo defense they were probably combining there new code with the parts of the old code that did not infringe after removing the parts that did infringe.


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## bidderman9 (Nov 8, 2007)

segaily said:


> Well for once in Echo defense they were probably combining there new code with the parts of the old code that did not infringe after removing the parts that did infringe.


For the sake of agument, lets assume the new section of "rewritten" code no longer infringes. Aren't there now issues of Echo* literally reusing lthe remaining pieces of TiVo's code to create their own new code base? While it may not be the infringing code directly related to this case, it is still Tivo's code base. It does not seem right that you can take out one section of code, make changes, insert it, and then call it your code.

Once again, this is why the contempt hearing will be on legal merit only. There are way too many technical rat holes to go down....


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## CuriousMark (Jan 13, 2005)

bidderman9 said:


> For the sake of agument, lets assume the new section of "rewritten" code no longer infringes. Aren't there now issues of Echo* literally reusing lthe remaining pieces of TiVo's code to create their own new code base? While it may not be the infringing code directly related to this case, it is still Tivo's code base. It does not seem right that you can take out one section of code, make changes, insert it, and then call it your code.
> 
> Once again, this is why the contempt hearing will be on legal merit only. There are way too many technical rat holes to go down....


Echo* never used TiVo's code, this is not a copyright infringement suit. Echo* used TiVo's patented techniques in their code though.

Their new software may still infringe under the doctrine of equivalents. Other areas of their code may infringe other newer TiVo patents that have not been tried in court yet.

You are right in that this is about the injunction and the other things may become an issue depending on how the judge rules on the injunction.


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## Curtis (Dec 2, 2003)

CuriousMark said:


> Echo* never used TiVo's code, this is not a copyright infringement suit. Echo* used TiVo's patented techniques in their code though.


Right, and there isn't a single line of code in TiVo's patent. TiVo patented a process.


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## Southie Boy (Jun 21, 2008)

CuriousMark said:


> Echo* never used TiVo's code, this is not a copyright infringement suit.


So, just because TiVo didn't file a copyright infringement action, does it necessarily mean they didn't steal TiVo's code? It is my understanding, that early on, when TiVo and Echostar were discussing the possibility of E* using TiVo as their DVR a lot of technology was given to E* for them to peruse. THere was a prototype box, that they kept, who knows what they were able to reverse engineer and copy from it, maybe some source code traded hands as well. TiVo was very proud of what they had, and were eager to show it to potential new customers.

Who knows what the E* infringers took from what TiVo showed them.


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## Curtis (Dec 2, 2003)

Southie Boy said:


> So, just because TiVo didn't file a copyright infringement action, does it necessarily mean they didn't steal TiVo's code?


One more time...

Link


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## Southie Boy (Jun 21, 2008)

Curtis said:


> One more time...
> 
> Link


Call me slow, but I just don't understand the point you are trying to make. Could you explain a bit.


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## nrc (Nov 17, 1999)

samo said:


> Technically, that is a correct statement. During software upload all functionality including DVR is disabled. Boxes are just a bunch of parts that are installing the new software. If new software is not infringing, then these boxes are effectively new units that have nothing to do with infringing units except that they used to be disabled (for whatever number of minutes) to comply with an injunction.


Even if this is literally true (and there's some question of that), we're back to the point that the "Infringing Products" were defined in the injunction as a set of devices, not "devices which are infringing". That's the root of TiVo's argument at this point in the contempt proceeding. Did the judge mean exactly what he wrote in the injunction? Given that he rejected E*'s request for language that would have permitted exactly what they've done it seems likely that he did. TiVo wants a ruling on that point and only wants to go into the technical question of continued infringement if it's necessary.

The whole "we did disable it" line of reasoning sounds like the kind of thing you'd hear from a teenager after they leave a bag of trash on the front porch. "You said to take the trash out. I took it out."



> Care to point out a place that they do it? Like page number or preferably a quote. I couldn't find it in a document.


Right off the bat on page 1.



> Well before the Injunction went into effect, EchoStar disabled the infringing indexing hardware in its "Broadcom" boxes as well as the infringing DVR software in more than [redacted]set-top boxes in the homes of subscribers around the country.


Then later on page 12.


> TiVo cannot argue that any of EchoStar's boxes infringe any of the "hardware" claims of the '389 patent. The Federal Circuit reversed the judgment of infringement as to all of those claims (claims 1, 5, 21, 23, 32, 36 and 52). TiVo, Inc. v. EchoStar Commc'ns Corp., 516 F.3d 1290, 1312 (Fed. Cir.2008).


Of course, the appeals court only reversed the judgment of literal infringement, leaving open the possibility of infringement on the doctrine of equivalents.



> Like what? Example please.


Page 3:



> In fact, TiVo seeks through a motion for summary contempt what it did not, and could not, secure at trial: an order affording TiVo a monopoly over _all_ DVR technology and, based on that monopoly, an order precluding EchoStar from providing its customers with _even noninfringing_ DVR functionality.


That's ridiculous hysteria. TiVo has asked for nothing but a prima fascia interpretation of the injunction.

As for discovering the problem with the document, I've seen that mistake before.


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## Curtis (Dec 2, 2003)

nrc said:


> Even if this is literally true (and there's some question of that), we're back to the point that the "Infringing Products" were defined in the injunction as a set of devices, not "devices which are infringing". That's the root of TiVo's argument at this point in the contempt proceeding. Did the judge mean exactly what he wrote in the injunction? Given that he rejected E*'s request for language that would have permitted exactly what they've done it seems likely that he did. TiVo wants a ruling on that point and only wants to go into the technical question of continued infringement if it's necessary.





> 35 U.S.C. 283 Injunction. - Patent Laws
> 
> 35 U.S.C. 283 Injunction.
> 
> The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to *prevent* the violation of any right secured by patent, on such terms as the court deems reasonable.





> [C]ontempt is a shield protecting the patentee against an infringers flagrant disregard for court orders, not a sword for wounding a former infringer who has made a good-faith effort to modify a previously adjudged or admitted infringing device to remain in the marketplace. Arbek Mfg., 55 F.3d at 1570.





> "Under the standard we adopt, a judgment of contempt against an enjoined party for violation of an injunction against patent infringement by the making, using or selling of a modified device may not be upheld without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement."
> 
> http://bulk.resource.org/courts.gov/c/F2/776/776.F2d.1522.84-1568.html


.


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## nrc (Nov 17, 1999)

Curtis said:


> .


There are clear differences between this case and the KSM case that have been pointed out here before. The KSM case dealt with a new product that was more than colorably different. The E* case deals with a device that was specifically enjoined because it was found to be infringing.

Moreover, in the KSM case the defendant did not defy the plain language of the injunction.


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## Curtis (Dec 2, 2003)

nrc said:


> There are clear differences between this case and the KSM case that have been pointed out here before. The KSM case dealt with a new product that was more than colorably different. The E* case deals with a device that was specifically enjoined because it was found to be infringing.
> 
> Moreover, in the KSM case the defendant did not defy the plain language of the injunction.


No. KSM is about a modified device, the same as this case.



> Jones acknowledged the validity of the KSM patent, admitted infringement thereof by its THERMAL-LOCK device, and was enjoined from further infringement.
> 
> Jones subsequently put out a *modified* refractory anchor (ULTRA-LOK I) and on September 22, 1981, KSM moved the court to punish Jones for contempt for violation of the injunction.


The location of the modification is irrelevant. Factory, warehouse, private home - it makes no difference. As far as being more than colorably different, how does that differ from this case?

Even if the DVRs are only colorably different the KSM requirement that contempt can't be found without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement is still true and makes even more sense. They didn't qualify the statement. There are no further caveats:



> "Under the standard we adopt, a judgment of contempt against an enjoined party for violation of an injunction against patent infringement by the making, using or selling of a modified device may not be upheld without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement."


The important thing is that the injunction as *required by law* only prevents infringement. If there is no infringement there is no contempt.



> "An enjoined party is entitled to design around the claims of a patent without the threat of contempt proceedings with respect to every modified device although he bears the risk that the enjoining court may find changes to be too insubstantial to avoid contempt."
> 
> http://www.altlaw.org/v1/cases/411612





> "Turning first to the question of the judgment of contempt itself, we agree, of course, that the issue in contempt proceedings is violation vel non of the injunction, not patent infringement. *Nevertheless*, devices which could not be enjoined as infringements on a separate complaint cannot possibly be deemed enjoined as infringements under an existing injunction in contempt proceedings. Accord MAC Corp. of America, 767 F.2d at 886, 226 USPQ at 518, " 'fair ground for doubt' on infringement." (emphasis added). *Infringement is the sine qua non of violation of an injunction against infringements.*
> 
> The authorities are uniform that the modified device must be an infringement to find contempt of such an injunction. See, e.g., Panther Pumps Equipment Company, Inc. v. Hydrocraft, Inc.,"
> 
> http://www.altlaw.org/v1/cases/411612


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## jtreid (Jan 12, 2006)

Curtis said:


> The important thing is that the injunction as *required by law* only prevents infringement. If there is no infringement there is no contempt.


That was sort of my point. If they effectively removed the infringement by disabling the infringing hardware/functionality, then doesn't the injunction become a moot point and, therefore, there cannot be contempt?

Being an engineer, I tend to over-simplify these patent issues and from what E* said they did, it sounds clean cut to me. Some of you seem to be closer to the patent laws (or have a heck of a lot more time than I do to research it). Can you put some of the latin in laymens terms? i.e.

1. The injunction said this...
2. E* did this...
3. Tivo claims contempt based on this...
4. Why, in your opinion, E* or Tivo have a valid argument.

Thanks


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## GoHokies! (Sep 21, 2005)

Here's my political science major understanding.

1. The injunction said "disable these DVRs"
2a. E* said "can we modify them to be non infringing?
2b. Judge said "No. I said disable and I mean disable"
3. Tivo claims contempt because the DVRs are still operational.
4. In my opinion, E* is in contempt and should die in a fire.


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## 20TIL6 (Sep 7, 2006)

GoHokies! said:


> Here's my political science major understanding.
> 
> 1. The injunction said "disable these DVRs"
> 2a. E* said "can we modify them to be non infringing?
> ...


2c. E* said OK, we will not challenge the language of the injunction.
2d. E* proceeded with their plan in 2a., and ignored 2b.


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## Curtis (Dec 2, 2003)

GoHokies! said:


> Here's my political science major understanding.
> 
> 1. The injunction said "disable these DVRs"
> 2a. E* said "can we modify them to be non infringing?
> ...


2a never happened. Here is what Dish asked for:



> "Defendants argue, the injunction should not extend to DVRs already distributed but *not placed* because they cannot infringe until the infringing software is downloaded."


Here is what the injunction says:



> "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing *Products that have been placed* with an end user or subscriber."


There was no mention of modification in Dish's argument against an injunction. In fact, Dish said that an injunction would cause a lot of harm.



> "According to Defendants, the injunction Plaintiff proposes "would immediately remove DVRs from three million families who are innocent of any wrongdoing... [depriving] those families of DVRs and force[ing] them to incur significant disruption and expense in order to replace them."


----------



## 1003 (Jul 14, 2000)

*Personally*
I hope that this strings along until DirecTV can get the HDPC20 ready for market and I'm ready to ditch my VIP622s anyway...

A truly killer blow would have Dish DVRs going dark during the olympics...


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## ZeoTiVo (Jan 2, 2004)

GoHokies! said:


> 2b. Judge said "No. I said disable and I mean disable"


2b or not 2b
that is the question!
Whether tis nobler in the home to suffer
the slings and DVRs of outrageous infringement
or to take arms against a sea of lawyers,
and by opposing end them? to lie; to sue;
No more; and by a suit to say we end
the heart-ache and the thousands of lost subscribers
That TiVo is heir to, tis a consummation
devoutly to be wish'd. To wait; to sleep;
to sleep, perchance to dream; aye there'sthe rub;
for in that sleep of docket what dreams may come
when we have shuffled off this Texas court
must give us pause; the month be Sept.
That makes calamity of so long infringing;
For who would bear the whips and scorns of Dish,
The oppressor's wrong, the proud man's contumely,
The pangs of despised love, the law's delay,


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## 20TIL6 (Sep 7, 2006)

ZeoTiVo said:


> 2b or not 2b
> that is the question!
> Whether tis nobler in the home to suffer
> the slings and DVRs of outrageous infringement
> ...


impressive...


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## ZeoTiVo (Jan 2, 2004)

20TIL6 said:


> impressive...


I had a good Ghost writer 
Wild how Shakespeare can fit just about any situation.


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## Curtis (Dec 2, 2003)

TiVo's response is out.

Link


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## nrc (Nov 17, 1999)

Curtis said:


> TiVo's response is out.
> 
> Link


Thanks. TiVo covers the points that have been argued here and then some along with the benefit of case law to back it up.


The oft-cited KSM case does not deal with an existing product that has been already found to be infringing and clearly named in an injunction.
Echostar's opportunity to argue that the clear language of the injunction was overly broad for disallowing them the opportunity to modify their software would have been during the original proceedings and appeal. That has now past. 
The judge has broad powers to give injunctive relief from the irreparable harm that TiVo sustained. The infringing DVRs cost TiVo market share that can never be regained. Whether they are infringing _today_ is irrelevant. The judge ordered them turned off because Echostar continues to benefit from the fact that they infringed to begin with.
TiVo points out that the technical claims were supposed to be left until a later date in the event that the court found it necessary to reach that point. Echostar brings these issues up now only to create confusion and delay.
Most of what Echostar says about the supposed changes to their DVR software has nothing to do with the so-called software claims that have been upheld.


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## Budget_HT (Jan 2, 2001)

nrc,

Thanks for a nice job summarizing the main TiVo points. I read through their document and agree with your condensed version.


----------



## Curtis (Dec 2, 2003)

nrc said:


> Thanks. TiVo covers the points that have been argued here and then some along with the benefit of case law to back it up.





> [*]The oft-cited KSM case does not deal with an existing product that has been already found to be infringing and clearly named in an injunction.


KSM deals with modification of an infringing, enjoined device just like this case does. Whether a new label was stuck on the device is irrelevant. Jones won the appeal.


> [*]Echostar's opportunity to argue that the clear language of the injunction was overly broad for disallowing them the opportunity to modify their software would have been during the original proceedings and appeal. That has now past.


Dish seems to be happy with the wording of the injunction. It doesn't require preapproval of modifications. If necessary, an appeals court may take it upon themselves to deny overbroad interpretations of the injunction. By law, a patent injunction cannot punish. A patent injuncton can only prevent infringement.

"35 U.S.C. 283 Injunction. - Patent Laws

The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable."



> [*]The judge has broad powers to give injunctive relief from the irreparable harm that TiVo sustained. The infringing DVRs cost TiVo market share that can never be regained. Whether they are infringing _today_ is irrelevant. The judge ordered them turned off because Echostar continues to benefit from the fact that they infringed to begin with.


Irreparable harm can't be repaired. That's the definition. Injunctions can only prevent infringement. If there is no infringement there is no contempt.


> [*]TiVo points out that the technical claims were supposed to be left until a later date in the event that the court found it necessary to reach that point. Echostar brings these issues up now only to create confusion and delay.


Dish is showing that they made a good faith effort to modify the software and make it non-infringing. That's part of the legal question.

"[C]ontempt is a shield protecting the patentee against an infringer's flagrant disregard for court orders," not "a sword for wounding a former infringer who has made a good-faith effort to modify a previously adjudged or admitted infringing device to remain in the marketplace." Arbek Mfg., 55 F.3d at 1570."



> [*]Most of what Echostar says about the supposed changes to their DVR software has nothing to do with the so-called software claims that have been upheld.


Yep and TiVo should get about the business of trying to prove that Dish still infringes.


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## segaily (Aug 3, 2003)

Curtis said:


> Yep and TiVo should get about the business of trying to prove that Dish still infringes.


Tivo also argues that Dish's changes are actually superficial and the device is not colorably different. TiVo would not have to prove dish still infringes in that case the court can just rule they do.


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## Curtis (Dec 2, 2003)

segaily said:


> Tivo also argues that Dish's changes are actually superficial and the device is not colorably different. TiVo would not have to prove dish still infringes in that case the court can just rule they do.


If the judge rules that differences are only colorable then he could find them in contempt and Dish could appeal. That issue isn't on the table for the 9-4 hearing though even though it is being touched on in the filings.


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## segaily (Aug 3, 2003)

Curtis said:


> If the judge rules that differences are only colorable then he could find them in contempt and Dish could appeal. That issue isn't on the table for the 9-4 hearing though even though it is being touched on in the filings.


If that is not on the table then I would think dish is toast. That would mean they will not consider then different at all. At which point Dish is in contempt and will have to hope for a stay on the contempt penalty until the argument that they are different can be made.


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## nrc (Nov 17, 1999)

Curtis said:


> KSM deals with modification of an infringing, enjoined device just like this case does.


Incorrect. (blue quotes from TiVo's latest filing)


> Fundamentally, the law does not allow relitigation of infringement with respect to adjudicated products. That issue has concluded and cannot be reopened. *None of the cases that EchoStar cites addresses a product that entered the marketplace as an infringing product, and none concerns ongoing exploitation of an unlawfully installed product base by a willful patent infringer.* KSM Fastening Systems, Inc. v. H.A. Jones Co., 776 F.2d 1522, 1523 (Fed. Cir. 1985), for example, involved a consent judgment, not a fully litigated and affirmed judgment of willful infringement. *Moreover, the products subject to the consent judgment were the THERMALLOCK products. On the other hand, the products at issue in the contempt proceeding were the ULTRA-LOK products.* Id. at 1523-24. The decision refers repeatedly to the difference between "the particular device found to be [an] infringement" and modified products that entered the marketplace after judgment. Id. at 1525. KSM casts no doubt on a court's ability to enforce an injunction as to the particular devices found to infringe in the underlying action.





> Dish seems to be happy with the wording of the injunction. It doesn't require preapproval of modifications. If necessary, an appeals court may take it upon themselves to deny overbroad interpretations of the injunction. By law, a patent injunction cannot punish. A patent injuncton can only prevent infringement.


Not true. Judges have broad authority to provide injunctive relief for injury that cannot be remedied by monetary damages - which is exactly what Judge Folsom found in his injunction against these DVRs. The damages TiVo is to be paid cover lost revenue - it does not and cannot provide relief from the lost market share that was caused by these infringing devices. The court determined that the relief for that was to remove these DVRs from the marketplace.


> It is hardly unusual for a court to enter an injunction that includes broad relief as to adjudicated products. Courts have issued drastic remedies such as market recalls, even at the preliminary injunction stage.





> Such rulings are unsurprising, given a court's broad authority to issue and enforce injunctions. 35 U.S.C. § 283 (patent injunctions available "on such terms as the court deems reasonable"); 18 U.S.C. § 401 (broad contempt power); id. § 1651(a) (power to "issue all writs necessary or appropriate in aid of" jurisdiction).





> This Court found that EchoStar's infringement caused irreparable harm to TiVo, including lost market share. The DVR industry was nascent, and customers that EchoStar acquired as a result of its infringement were "sticky," as DVR users tend not to switch providers. Dckt. No. 773, Aug. 17, 2006 Order at 10 (Ex. A).4 *It also found that a narrower injunction applying only to DVRs with particular software would be inadequate to prevent further harm because EchoStar could retain the customers it attracted with its willfully infringing units and perpetuate the infringement under the pretense of an alleged design-around.*





> Irreparable harm can't be repaired. That's the definition. Injunctions can only prevent infringement. If there is no infringement there is no contempt.


The fact that the damage is irreparable doesn't mean the the court can't or shouldn't craft an injunction to provide as much relief as it can "on such terms as the court deems reasonable". TiVo cites multiple cases where injunctive relief beyond simply "preventing infringement" was provided and failure to comply was ruled as contempt.



> In Eli Lilly, the court prohibited a defendant from, among other things, "using . . . the data generated from the infringing, manufacture, use, or sale of the [infringing products]." Eli Lilly, 735 F. Supp. at 654. The court held the defendant in contempt for violating this provision by presenting data about the products at medical meetings. Id. at 658. The Court rejected the defendant's KSM-based argument that "only a showing of 'post-injunction infringement' will support a finding of contempt." Id. at 661. *Because the data itself  while perhaps not infringing  was the fruit of products adjudged to infringe*, the court prohibited its use and found contempt when its order was ignored.


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## Curtis (Dec 2, 2003)

nrc said:


> Incorrect. (blue quotes from TiVo's latest filing)
> 
> The fact that the damage is irreparable doesn't mean the the court can't or shouldn't craft an injunction to provide as much relief as it can "on such terms as the court deems reasonable". TiVo cites multiple cases where injunctive relief beyond simply "preventing infringement" was provided and failure to comply was ruled as contempt.
> 
> ...


Courts often try to invoke unlawful injunctions. Appeals courts overturn them. Injunctions are not precedential. This injunction was never upheld.


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## Curtis (Dec 2, 2003)

nrc said:


> > Originally Posted by Curtis :
> > KSM deals with modification of an infringing, enjoined device just like this case does.
> 
> 
> Incorrect.


ULTRA-LOK was a modified THERMAL-LOK (an enjoined adjudicated device). KSM was about modification of an enjoined adjudicated device. Contempt was not upheld because the district court didn't look at the modified device to see if it infringed. There were no caveats as to where the device has to be located to determine contempt.

Appeals court:


> [W]hether an injunction against infringement has been violated, requires, at a minimum, a finding that the accused device is an infringement.


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## BlackBetty (Nov 6, 2004)

segaily said:


> If that is not on the table then I would think dish is toast. That would mean they will not consider then different at all. At which point Dish is in contempt and will have to hope for a stay on the contempt penalty until the argument that they are different can be made.


ding ding ding ding....we have a winner.


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## RoyK (Oct 22, 2004)

BlackBetty said:


> ding ding ding ding....we have a winner.


Hardly. 
Dish does NOT have to prove they are not infringing - TiVo must prove that they are. The onus is on the patent owner - always.


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## segaily (Aug 3, 2003)

RoyK said:


> Hardly.
> Dish does NOT have to prove they are not infringing - TiVo must prove that they are. The onus is on the patent owner - always.


TiVo already proved they infringed and it sounds like dish can not use the contempt hearing to argue they are no longer the same. To me that sounds like there is nothing for TiVo to prove.


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## segaily (Aug 3, 2003)

Curtis said:


> ULTRA-LOK was a modified THERMAL-LOK (an enjoined adjudicated device). KSM was about modification of an enjoined adjudicated device. Contempt was not upheld because the district court didn't look at the modified device to see if it infringed. There were no caveats as to where the device has to be located to determine contempt.
> 
> Appeals court:


The way I read TiVo's filling it sounds like it was modified in that they built a new device with changes based on the old device. That to me and TiVo's lawyers a little different then recalling an infringing device and changing it. The case could still apply but it is not exactly the same so I would not call that a slam dunk for dish.


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## Curtis (Dec 2, 2003)

segaily said:


> TiVo already proved they infringed and it sounds like dish can not use the contempt hearing to argue they are no longer the same. To me that sounds like there is nothing for TiVo to prove.


The question at the 9-4 hearing is whether it makes any difference whether Dish still infringes or not. Not being able to argue the modification differences wouldn't affect the outcome. TiVo has already admitted that a modification took place.


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## ZeoTiVo (Jan 2, 2004)

Curtis said:


> The question at the 9-4 hearing is whether it makes any difference whether Dish still infringes or not. Not being able to argue the modification differences wouldn't affect the outcome. TiVo has already admitted that a modification took place.


which is exactly where NRC is coming from.
The injunction was -
DISH put out infringing products and grabbed subscriptions with the infringing product.

DISH now has to turn off those infringing products and try again to sell a DVR to those people as fair remedy for lost market share to TiVo. This is in addition to the lost revenue that DISH also has to pay.

just turning off the DVR for the brief moment before an update of software and then turning the DVR back on does not satisfy the true intent of the injunction.

This is why modification of the injunction by DISH was denied by the judge- turning off the DVR is turning off the DVR.

I think the Judge will find contempt and tell DISH to turn them off. I have no idea what the appeal court will do about such a ruling


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## Curtis (Dec 2, 2003)

ZeoTiVo said:


> DISH now has to turn off those infringing products and try again to sell a DVR to those people as fair remedy for lost market share to TiVo. This is in addition to the lost revenue that DISH also has to pay.


TiVo has already been awarded lost profits as calculated by TiVo themselves.


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## ZeoTiVo (Jan 2, 2004)

Curtis said:


> TiVo has already been awarded lost profits as calculated by TiVo themselves.


Yes, and *in addition* to that the injunction was set by the judge to turn off the DVRs so DISH does not get future benefit from the market share it obtained with the infringing product. It forces users to look up and decide on what DVR. 
Even at that it is not that fair to TiVo since most users are now fairly set DISH users and would most likely just expect DISH to take care of the "problem".


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## Curtis (Dec 2, 2003)

ZeoTiVo said:


> Yes, and *in addition* to that the injunction was set by the judge to turn off the DVRs so DISH does not get future benefit from the market share it obtained with the infringing product.


Yes. Judge Folsom explained in his rationale for the injunction that it was to stop *continuing infringement*. Absent infringement the need for the injunction goes away. By law, a patent injunction can only prevent infringement. If there is no infringement there is no contempt.

Judge Folsom:


> The balance of hardships weighs in favor of granting a permanent injunction. As discussed, Plaintiff faces *ongoing* irreparable injury as Defendants' infringement *continues*. As a relatively new and small company, every day of Defendants' infringement affects Plaintiff's business. And, as discussed above, Plaintiff's primary product, its DVRs, are those with which Defendants' infringing products directly compete. The harm caused by such infringement weighs heavily in favor of an injunction.


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## segaily (Aug 3, 2003)

Curtis said:


> The question at the 9-4 hearing is whether it makes any difference whether Dish still infringes or not. Not being able to argue the modification differences wouldn't affect the outcome. TiVo has already admitted that a modification took place.


TiVo admitting that a change has been made is not the same as admitting they are colorably different. TiVo's filling looks to me as though they are saying the change was superficial. That would leave it as the same device that was found to infringe. If Dish can not argue they are different then I would think the injection would hold.


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## RoyK (Oct 22, 2004)

segaily said:


> TiVo admitting that a change has been made is not the same as admitting they are colorably different. TiVo's filling looks to me as though they are saying the change was superficial. That would leave it as the same device that was found to infringe. If Dish can not argue they are different then I would think the injection would hold.


TiVo can say anything it likes. Saying something doesn't make it true. Maybe the change was superficial, maybe (likely IMHO) it was substantial. We onlookers have no way of knowing which at this juncture.

TiVo has admitted that the new software is different. At the proper time they will have to offer up the evidence that the new software also infringes. The court certainly won't take TiVo's word for it any more than a criminal court judge would take a prosecuter's word that an accused burgler must be guilty of robbing you based only on the fact that he robbed someone else last week.


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## CuriousMark (Jan 13, 2005)

From TiVo's reply brief:


> *2. EchoStar's Non-Infringement Arguments Are Insubstantial.*
> 
> EchoStar's "technical" arguments are aimed at creating confusion and delay, obscuring
> the lack of any substantive product change. Most of the arguments concern matters completely
> ...


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## segaily (Aug 3, 2003)

RoyK said:


> TiVo can say anything it likes. Saying something doesn't make it true. Maybe the change was superficial, maybe (likely IMHO) it was substantial. We onlookers have no way of knowing which at this juncture.
> 
> TiVo has admitted that the new software is different. At the proper time they will have to offer up the evidence that the new software also infringes. The court certainly won't take TiVo's word for it any more than a criminal court judge would take a prosecuter's word that an accused burgler must be guilty of robbing you based only on the fact that he robbed someone else last week.


I suspect the change was substantial as well, but if at this hearing dish is not allowed to discuss the changes then I see no reason why the court will not say they are in contempt. Dish can say anything it likes to the court. The court can not just take dish's word for it that it is colorably different. The court can not just take the robbers word for it that he did not rob me.

This is not an attempt by TiVo to get a new injunction were they need to show the device is not different. This is a contempt hearing and dish is not being allowed to argue the changes.

If I wrote an online office app that violated a microsoft patent and all I had to do was shut down my server change one line of code recompile turn my server back on and be back in business until they took me to court again it would make the court system a joke.


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## dswallow (Dec 3, 2000)

segaily said:


> [...] it would make the court system a joke.


It's not already? You mean "more of a joke" right?


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## Curtis (Dec 2, 2003)

segaily said:


> I suspect the change was substantial as well, but if at this hearing dish is not allowed to discuss the changes then I see no reason why the court will not say they are in contempt. Dish can say anything it likes to the court. The court can not just take dish's word for it that it is colorably different. The court can not just take the robbers word for it that he did not rob me.


Again, what is being decided is whether it makes a difference whether the software still infringes or not. If Judge Folsom says it makes a difference then no contempt will be found at this hearing. 


> [C]ontempt is a shield protecting the patentee against an infringers flagrant disregard for court orders, not a sword for wounding a former infringer who has made a *good-faith effort* to modify a previously adjudged or admitted infringing device to remain in the marketplace. Arbek Mfg., 55 F.3d at 1570.


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## RoyK (Oct 22, 2004)

segaily said:


> ...The court can not just take dish's word for it that it is colorably different. The court can not just take the robbers word for it that he did not rob me.
> 
> ...


In the absence of proof that he did rob you the court is obliged to do exactly that.


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## MichaelK (Jan 10, 2002)

RoyK said:


> TiVo can say anything it likes. Saying something doesn't make it true. Maybe the change was superficial, maybe (likely IMHO) it was substantial. We onlookers have no way of knowing which at this juncture.
> 
> TiVo has admitted that the new software is different. At the proper time they will have to offer up the evidence that the new software also infringes. The court certainly won't take TiVo's word for it any more than a criminal court judge would take a prosecuter's word that an accused burgler must be guilty of robbing you based only on the fact that he robbed someone else last week.


not a lawyer but i dont think different or substancially different means a hill of beans.

From the lawyers who post here it appears the important thing is are they "more than colorably" different.

So you can change, you can make lots of changes. But if all your changes are colorably different then it still doesn't matter.

Anywho- it appears that the whole colorable issue is currently off the table and that's for a later stage? Again not a lawyer but sounds to me like the current arguement Tivo is focusing on is what is the meaning and intent of the original injunction. And what would be the proper way for Dish to go about getting it pushed aside.


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## MichaelK (Jan 10, 2002)

RoyK said:


> In the absence of proof that he did rob you the court is obliged to do exactly that.


Roy-

I'll let the lawyers correct me if i am wrong, but i beleive you are mistaken at this stage of the proceedings.

Tivo in the eyes of the court- has already proved that DISH robbed from tivo. The question now is are their current actions (or current software)- different enough ("more than colorably") from their previous actions(software version) that a new trial is in order.

If the court finds yes that things are more than colorably differnt then at a later date you are correct- Tivo must again prove Dish is robbing them.

BUT if the court finds that the changes dish made were not that big a deal (eg the proverbial one line of code) then Tivo isn't required to prove anything- the onus would still be on Dish.

Anyway- it seems the colorably arguments aren't scheduled yet. There's a more fundamental argument apparently that tivo wants to make. Assuming Dish gets past this first set of arguments then the issue of the colorable differnt will matter.


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## MichaelK (Jan 10, 2002)

Curtis said:


> Again, what is being decided is whether it makes a difference whether the software still infringes or not. If Judge Folsom says it makes a difference then no contempt will be found at this hearing.





> [C]ontempt is a shield protecting the patentee against an infringers flagrant disregard for court orders, not a sword for wounding a former infringer who has made a good-faith effort to modify a previously adjudged or admitted infringing device to remain in the marketplace. Arbek Mfg., 55 F.3d at 1570.


that's very intesting- and with Dish's reputation would seem relevent.

If the standard is "good-faith" effort then the fact that Dish just made substantial changes isn't good enough. They would have had to make substantial changes that they beleived in good faith were non-infringing. And that opens can of worms if they get so far as to make the colorably different arguments....

"good-faith" is pretty subjective.


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## RoyK (Oct 22, 2004)

MichaelK said:


> Roy-
> 
> I'll let the lawyers correct me if i am wrong, but i beleive you are mistaken at this stage of the proceedings.
> 
> ...


No, the issue here is did Dish comply with the injunction or didn't it.

If the court holds that Dish is in contempt after changing their software in an attempt to make it non infringing there is no doubt that Dish will appeal that finding and probably win the appeal.

The standard is whether the new software is colorably different. The question here is on what basis is that to be decided. The court is not technical. It will not arbitrarily make such a decision on its own. Dish will continue maintain that it is colorably different and does not infringe. TiVo will continue to argue the opposite.

And we will continue to speculate and root for the underdog even though our wishes will have no bearing on the end results.


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## Curtis (Dec 2, 2003)

RoyK said:


> The standard is whether the new software is colorably different. The question here is on what basis is that to be decided. *The court is not technical.* It will not arbitrarily make such a decision on its own. Dish will continue maintain that it is colorably different and does not infringe. TiVo will continue to argue the opposite.


That's one of the reasons that differences are not on the table for this hearing. Judge Folsom asked whether he needed a technical advisor. He was told "no". This hearing is just about legal questions.



> 10:16 ct/ file that motion in same time period as motion for injunction; technical advisor for this phase of the case;
> 10:16 Chu/ dont feel we need one; strictly a legal question;
> 10:16 McElhinny/ agrees;
> 10:17 adjourned;


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## dswallow (Dec 3, 2000)

RoyK said:


> No, the issue here is did Dish comply with the injunction or didn't it.
> 
> If the court holds that Dish is in contempt after changing their software in an attempt to make it non infringing there is no doubt that Dish will appeal that finding and probably win the appeal.
> 
> ...


I think the real issue being dealt with at this time is "what did the injunction apply to?" The device that consists of the piece of hardware labeled with particular model numbers, or only the specific software running on those devices labeled with specific model numbers.

I think it's pretty clear since the court explicitly dealt with this issue during the trial where Dish wanted to word the injunction in a specific way and the court denied it stating this very reason.


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## Curtis (Dec 2, 2003)

dswallow said:


> I think the real issue being dealt with at this time is "what did the injunction apply to?" The device that consists of the piece of hardware labeled with particular model numbers, or only the specific software running on those devices labeled with specific model numbers.
> 
> I think it's pretty clear since the court explicitly dealt with this issue during the trial where Dish wanted to word the injunction in a specific way and the court denied it stating this very reason.


No one has been able to provide a quote from either Dish or the court. I don't think it happened. Judge Folsom summarized the arguments from both sides when he issued the injunction. There was nothing like that in there.


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## CuriousMark (Jan 13, 2005)

Curtis said:


> No one has been able to provide a quote from either Dish or the court. I don't think it happened. Judge Folsom summarized the arguments from both sides when he issued the injunction. There was nothing like that in there.


I believe the following lines, taken from a quote that I think you posted on another forum provides a reference to exactly what you say can't be found.



> First, TiVo believes that EchoStar is in violation of the injunction by failing to "disable the DVR functionality," and by selling new DVRs, regardless of any changes to the software. In fact, what EchoStar is doing now is what it proposed to the Court in 2006, and which the Court rejected. Specifically, EchoStar's 2006 proposal was that the Court enjoin only "the provision of infringing DVR software upon activation." (EchoStar's (1) Opposition to TiVo's Motion for Entry of Judgment and (2) Cross-Motion to Stay any Injunction Pending Appeal, Docket No. 737, at 16). In opposing EchoStar's language, TiVo warned that EchoStar's formulation would be a recipe for abuse:
> 
> This clever formulation is an invitation for EchoStar to engage in mischief. Such an injunction would only result in EchoStar providing what it deemed as "non-infringing" DVR software to its already-found-to-be-infringing DVRs, creating the opportunity for interminable disputes to determine what exactly is "infringing DVR software." (TiVo's (1) Reply Re Motion for Entry of Judgment and Permanent Injunction and (2) Opposition to EchoStar's Cross-Motion to Stay Injunction, Docket No. 747, at 11). This Court rejected EchoStar's proposal and adopted, instead, the straightforward "disable the DVR functionality" provision that appears in the Permanent Injunction.


So someone with access to those documents should be able to provide quotes from originals and not embedded in a TiVo document as this quote was. If we believe the quote from the TiVo document, then sure enough, Echostar did try to get the language softened, TiVo did object, and the final language of the injunction did not include Echostar's desired language. Since the judge wrote the injunction, it is not a leap to say that on this subject he appeared to agree with TiVo.


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## Curtis (Dec 2, 2003)

CuriousMark said:


> > In fact, what EchoStar is doing now is what it proposed to the Court in 2006, and which the Court rejected. Specifically, EchoStars 2006 proposal was that the Court enjoin only the provision of infringing DVR software upon activation.
> 
> 
> So someone with access to those documents should be able to provide quotes from originals and not embedded in a TiVo document as this quote was. If we believe the quote from the TiVo document, then sure enough, Echostar did try to get the language softened, TiVo did object, and the final language of the injunction did not include Echostar's desired language. Since the judge wrote the injunction, it is not a leap to say that on this subject he appeared to agree with TiVo.


Here is the only reference that is anywhere near what the quote says. This is from Judge Folsom's summary of the injunction arguments.



> "Defendants argue, the injunction should not extend to DVRs already distributed but not placed because they cannot infringe until the infringing software is downloaded. "


Dish's request was granted, the disable order was limited to DVRs placed in homes.


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## CuriousMark (Jan 13, 2005)

Curtis said:


> Here is the only reference that is anywhere near what the quote says. This is from Judge Folsom's summary of the injunction arguments.
> 
> Dish's request was granted, the disable order was limited to DVRs placed in homes.


Did dish submit the referenced information under seal? Is that why it is not available? Or are you saying the referenced docket number documents simply don't exist?


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## curtis0620 (Sep 6, 2000)

Curtis said:


> Here is the only reference that is anywhere near what the quote says. This is from Judge Folsom's summary of the injunction arguments.
> 
> Dish's request was granted, the disable order was limited to DVRs placed in homes.


Because they were ordered not to sell the ones not placed in homes.


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## bidderman9 (Nov 8, 2007)

Does anyone have a copy of the E* and TiVO response that was due this past Friday (7/18)?


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## CuriousMark (Jan 13, 2005)

bidderman9 said:


> Does anyone have a copy of the E* and TiVO response that was due this past Friday (7/18)?


There are links in posts a page or three back.


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## bidderman9 (Nov 8, 2007)

I see the link for the Tivo Reply. Is there one for the E* reply? Sorry, I may just be missing it. E* had one due the same day, correct?


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## Curtis (Dec 2, 2003)

bidderman9 said:


> I see the link for the Tivo Reply. Is there one for the E* reply? Sorry, I may just be missing it. E* had one due the same day, correct?


This one?

Link


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## bidderman9 (Nov 8, 2007)

Curtis said:


> This one?
> 
> Link


No, not that one. E* and Tivo filed a joint extention request to delay their replies 1 week (till 7/18). link

I have seen Tivo's reply, but I do not believe that I have seen E* reply. The link you listed above was before the extension request.


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## Curtis (Dec 2, 2003)

bidderman9 said:


> No, not that one. E* and Tivo filed a joint extention request to delay their replies 1 week (till 7/18). link
> 
> I have seen Tivo's reply, but I do not believe that I have seen E* reply. The link you listed above was before the extension request.


Last Friday, Dish withdrew their request for reinterpretation of the injunction regarding repair of the 193K.

Link


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## bidderman9 (Nov 8, 2007)

Curtis said:


> Last Friday, Dish withdrew their request for reinterpretation of the injunction regarding repair of the 193K.
> 
> Link


That explains it. Thanks for the clarification.


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## BlackBetty (Nov 6, 2004)

Curtis said:


> Last Friday, Dish withdrew their request for reinterpretation of the injunction regarding repair of the 193K.
> 
> Link


what does this mean?


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## 20TIL6 (Sep 7, 2006)

As a play on the subject title,

Maybe someday soon, E* will fill its briefs.


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## ZeoTiVo (Jan 2, 2004)

BlackBetty said:


> what does this mean?


They wanted to take broken ones back in, "repair" them adn then send them back out in the field. Thus keeping a steady 193K out there.
Seems they are now backing off that and will have to let the 193K dwindle over time.


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## acvthree (Jan 17, 2004)

Is there any new news? I thought I remembered something that was to happen this week, but I'm probably missremembering.


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## CuriousMark (Jan 13, 2005)

There will be an hours worth of oral arguments in Texarkana tomorrow. They will be discussing whether dish should be held in contempt for refusing to shut down their DVRs or are justified by having changed software, and discussing the amount to increase the award to cover the time that the injunction was stayed while Echostar/Dish appealed the original verdict. The new number may be substantial.

It is expected the judge will then think about it for a week or three and then publish his decision.

People will be watching closely for body language and tone of voice in order to try to guess which way the judge is leaning.


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## ZeoTiVo (Jan 2, 2004)

CuriousMark said:


> People will be watching closely for body language and tone of voice in order to try to guess which way the judge is leaning.


A good plumb bob will tell yah that.


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## CuriousMark (Jan 13, 2005)

ZeoTiVo said:


> A good plumb bob will tell yah that.


ROTFL


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## Hew (Apr 18, 2004)

From the Yahoo message board:

"Wible's Court wrap-up 4-Sep-08 04:45 pm Wible's Court wrap-up 
TiVo Inc (TIVO) 
Wheels of Justice Move Slowly but Maintain Confidence in TIVO 
Victory 

* No Decision Yet - Judge Folsom did not rule on whether DISH is 
in contempt, leaving DISH to use its DVR's for now. TIVO's sell 
off is likely driven by event driven investors interpreting the 
absence of a decision as incrementally more favorable for DISH 
(i.e., the need to contemplate may be a sign there is more weight 
behind DISH's defense). A decision could come later this month, 
but timing is still uncertain leading to more frustration and 
selling pressure. 
* The Positives - The judge seemed irritated with DISH, 
specifically questioning their actions in DE and the lack of 
communication on the workaround. In addition, the judge did not 
schedule any future hearings and did not ask for a technical 
review of DISH's software workaround - leading us to still 
believe he will side with TIVO. Lastly, accrued damages from the 
appeals process look like they will be in the $16 to $220 million 
range (the mid point is close to what we have been expecting). 
* Remain Confident and Reiterate Buy - We expect TIVO to remain 
volatile as event driven speculators take advantage of the 
uncertainty as they have on previous trial delays. However, we 
continue to believe there is a positive risk/reward on the trial 
given the magnitude of current MSO deals and the sizable benefits 
from a trial victory that could provide about $180 million in 
annual cash flow. We reiterate our Buy recommendation and 
(censored for tivocommunity, no stock talk) target price. 
See Appendix A-1 for Analyst Certification and important 
disclosures. "

Seems like the judge is close to bringing this whole thing to an end. Hopefully he'll come up with a decision before Christmas.


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## dylanemcgregor (Jan 31, 2003)

The judge postponed the ruling until November.

http://www.bloomberg.com/apps/news?pid=conewsstory&refer=conews&tkr=TIVO:US&sid=aDaoiEUNYtOE


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## Curtis (Dec 2, 2003)

dylanemcgregor said:


> The judge postponed the ruling until November.
> 
> http://www.bloomberg.com/apps/news?pid=conewsstory&refer=conews&tkr=TIVO:US&sid=aDaoiEUNYtOE


No. The Judge said he would try to rule by Oct. 1. If he can't do it by then it might be November.


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## Mr.Broncosfan (Sep 1, 2008)

Curtis said:


> No. The Judge said he would try to rule by Oct. 1. If he can't do it by then it might be November.


I'm surprised there's not more comments about what happened yesterday. Stock price took a dump but rebounded a little today (I know, can't comment on the stock). What's your gut feeling? Is this an indication of the Judge siding with Dish or just another stupid delay?


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## kb7oeb (Jan 18, 2005)

The market did poorly the past two days and may have exaggerated the reaction.

There wasn't much talk about it on the dish forums either.


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## nrc (Nov 17, 1999)

The market is consistently fickle in these matters. Anyone who thought that there was going to be an "off with their heads" declaration in court on Thursday was just delusional. 

The limited summaries that I've seen seem to indicate a fair amount of irritation from the judge with Dish and their tactics (the Delaware move and no prior notification on the "work-around" for example). Dish seemed to feel that they were at risk since they noted that if the judge rules contempt they'd like another stay.

The judge is clearly going to take some time and write a considered ruling on this since he knows that whatever he rules will likely be appealed. I'm guessing 75&#37; chance of contempt based on the limited information we have right now.


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## ZeoTiVo (Jan 2, 2004)

kb7oeb said:


> The market did poorly the past two days and may have exaggerated the reaction.
> 
> There wasn't much talk about it on the dish forums either.


well the specualtion is not so much on what would happen IN the hearing as on what the Judge will rule. The hearing itself went pretty much to script with no surprises or new things to speculate on.

I agree with the 75% chance on a ruling of contempt and that DISH will do everything to drag out that outcome as well.


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## gastrof (Oct 31, 2003)

I find this all very attention getting, especially when you consider TiVo and DirecTV are back in partnership in making an HD TiVo that'll work as a DirecTV box as well.

Can't help but wonder what that'll lead to (if anything) where DISH is concerned. 

I can see DISH ending up having to agree to providing customers with TiVo-based DVR boxes; thing is, that might be affected by TiVo's partnership with DirecTV. Might it be an "exclusive" thing that would make any similar arrangement with Dish an impossibility?


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## SullyND (Dec 30, 2004)

gastrof said:


> Might it be an "exclusive" thing that would make any similar arrangement with Dish an impossibility?


The press release regarding the DirecTV deal said it is non-exclusive.


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## jrm01 (Oct 17, 2003)

The downpayment has been made:

http://investor.tivo.com/releasedetail.cfm?ReleaseID=339469


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## Southie Boy (Jun 21, 2008)

jrm01 said:


> The downpayment has been made:


This is old news, it happened a few of weeks ago.
http://www.reuters.com/article/technologyNews/idUSTRE4987M520081009


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## jrm01 (Oct 17, 2003)

Southie Boy said:


> This is old news, it happened a few of weeks ago.
> http://www.reuters.com/article/technologyNews/idUSTRE4987M520081009


As I was told in my similar post in another thread. Sorry about that.


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## Southie Boy (Jun 21, 2008)

jrm01 said:


> As I was told in my similar post in another thread. Sorry about that.


It would help if they would date those press releases posted on their web site. If you come across them as a result of a search, you don't know if they are a day old or a year old.


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## BlackBetty (Nov 6, 2004)

Southie Boy said:


> It would help if they would date those press releases posted on their web site. If you come across them as a result of a search, you don't know if they are a day old or a year old.


they are dated. It says October 9, 2008.


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## jrm01 (Oct 17, 2003)

Southie Boy said:


> It would help if they would date those press releases posted on their web site. If you come across them as a result of a search, you don't know if they are a day old or a year old.


I can't even use that as an excuse. The link I clicked on their website said it was October 9th, I just forgot what month it is.


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## ZeoTiVo (Jan 2, 2004)

Crud - I was hoping it was news of the judge's ruling that would have Echostar _filling_ their briefs


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## BlackBetty (Nov 6, 2004)

ZeoTiVo said:


> Crud - I was hoping it was news of the judge's ruling that would have Echostar _filling_ their briefs


+1


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## MichaelK (Jan 10, 2002)

apparnetly there's a new hearing on the issue...

http://www.tivocommunity.com/tivo-vb/showthread.php?t=410922


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