duckydan said:
Correct me if I'm wrong but all newer DVR's do not use the Tivo software. It was just the old DVRs. If there was a mass "panic button" shut down they would simply issue the newer DVRs out to their customers that are affected although there aren't that many from what I recall as there is only 1 model out there affected.
I've had my back against a wall so many times for my position that it normally is considered "sky is falling" material. I honestly believe there will be a licensing agreement between TiVo and Echostar/Dish Network. So, the sky is not falling, but it is getting a little cloudy...
From memory, the infringing DVR models were listed as the 501, 508, 510, 721, 921, 942 and 625, and any that are not colorably different than those listed. Dish Network could not update the software in the 721, 921, 942 and HomeZone 1022 (one of the AT&T models). These models cannot be sold nor activated by Dish Network or any of their retailers, as they still use infringing software.
Dish Network sent a letter to their resellers on 18 April. From memory, they told the resellers because DISH/SATS redesigned the software on the 5XX, 625, 622 and 722 and the rest of the AT&T models, they feel they no longer infringe, and will not have to shut-down those DVR's.
The issue is that a copy of the injunction was sent to the resellers along with the letter. If one takes a literal meaning of the injunction, the resellers were supposed to receive a copy of the injunction because the injunction also applies to the resellers, and the court order says to send a copy of the injunction to the "agents". So Dish Network/Echostar took literally at face value what they were supposed to do, and sent the injunction, just as Dish Network/Echostar also stopped selling receivers that were covered by the injunction.
The injunction also stated to shut-down all but 197,208 DVR's that infringed on the software claims on the TiVo Time Warp patent. But Dish Network/Echostar has not complied with that. The assumption is that TiVo will bring this up in their brief to the court on Friday.
One of the main problems is that using the literal directive of the injunction, those receivers are supposed to be off. Even if Dish Network/Echostar has changed the software on these receivers so they no longer infringe, there isn't any proof, yet. In my opinion, that is where the big issue is: the judge may state there should be a finding of fact, if the new software no longer infringes. The problem is that the judge may also state that Dish Network/Echostar is to shut-down those DVR's until the finding of fact is resolved.
That is where the problems start. If TiVo and Dish Network/Echostar cannot find a common ground to get an agreement done, then there will be a problem. You can bet TiVo will ask for the moon when it comes to getting royalties, when Dish Network/Echostar may be faced with shutting down some subscribers. If I were TiVo, I'd ask for a royalty agreement for ALL DVR's, including the newer ones, which may or may not infringe. And Dish Network/Echostar, as everyone knows here, negotiates contracts like lions negotiate with wildebeests. They certainly aren't afraid to pull the plug on their subscribers.
If the courts force Dish Network to comply with the injunction, TiVo will win and quite a few Dish Network subscribers and Dish Network themselves will lose.
