TiVo Patent Victory Over Dish Network Upheld

Thomas Hawk writes "An appeals court today shot down Dish Network's last chance to avoid a multi-million lawsuit verdict won by TiVo over their time shifting DVR technology. In addition to having to pay TiVo a minimum of $92 million, Dish Network will also now have to honor a court injunction to turn off DVR software to most of their customers. I hope Dish Network customers like commercials with their daily dose of Dr. Phil."

The shit's going to hit the fan

[JonTurner (178845)]

Americans are a complacent lot. They'll tolerate taxes and fee increases, regulation, government snooping, abridgement of century-old (and God given) rights, etc. with maybe one in ten thousand even bothering to pick up a telephone or a pen and contact their congressman or senator.

But if you fuck with their television, you'll see angry roving mobs take to the streets that make "21 days later" look like a tea party. I suspect this will not end well.

I tried

[OMNIpotusCOM (1230884)]

I was trying to think of something really witty to say, something that would totally make the parent rethink their post and question their whole thought structure on Americans... but all I could come up with was this Family Guy quote:

"Who touched the thermostat?" ...how sad is that?

Re:

[OrangeTide (124937)]

We already accept DRM. And in the very near future we'll be blocked from recording or timeshifting some programs and we'll just shrug our shoulders and accept it. This is how IPTV will "revolutionize" television.

Re:

[fyngyrz (762201)]

You accept DRM. Acting on the presumption that the consumer is a criminal before the fact is ample evidence that the system - not the consumer - is broken.

Re:The shit's going to hit the fan

[Cheesey (70139)]

If he does, then he's not in the minority. I bet 99% of the people who read this post are XBox, PS3 or Wii owners: I think the DRM on those systems is tolerated so widely because it just works. Even nerds who understand the implications are willing to buy into it.

Some people object to DRM on ideological grounds, but not many. It's like free software versus commercial software. You can decide to use only free software because it fits your personal ideology, but most people use a mixture of free and non-free software. If good free software doesn't exist for a task, then they pay up. Equally, we would all prefer to have no DRM, but we can tolerate it if it means we get to do something that we wouldn't otherwise be able to do.

Re:The shit's going to hit the fan

[fyngyrz (762201)]

Use is not synonymous with acceptance. Toleration or passivity in the face of it is; personally, I'm active in a number of ways, from not allowing DRM of any kind on the commercial executables we produce, to creating PD software that demonstrates the fallacy of the GPL type of approach, to pestering my representatives to stop creating legislation that presumes citizens are criminals absent probable cause, oath or affirmation, and warrant. I donate to causes that support this view, and speak against causes that criminalize legitimate action.

Re:The shit's going to hit the fan

[OrangeTide (124937)]

As long as you continue to replace DVD players with Blu-Ray players. And continue to upgrade your equipment to DRM-enabled versions, you are accepting DRM. As long as there demand for DRM there will be supply. And providing demand is acceptance when alternatives exist and are actually cheaper.

Alternative to HDMI - component video, dvi
Alternative to Blu-Ray - DVD (which has laughable DRM)
Alternative to iTunes - DRM-free MP3 download(amazon, etc), CDs that are not protected(harder to tell)

ps - try as we might, we will not be able to defeat the GPL empire. I do MIT license and PD software. But it just gets bundle with a bunch of GPL stuff anyways. GPL's model always wins even if it's the wrong model.

Re:

[multisync (218450)]

Alternative to Blu-Ray - DVD (which has laughable DRM)

It's DRM none the less, and it is (if I'm not mistaken) a felony to circumvent that DRM in the US. Also, how many VHS tapes are available for rent or sale at your local video store? Watch as studios slowly squeeze out the DVD and force those pesky "consumers" to "upgrade" to Blue-Ray.

Alternative to iTunes - DRM-free MP3 download(amazon, etc), CDs that are not protected(harder to tell)

Sure, if you live in the US. Amazon does not sell MP3 downloads to fore

Re:

[OrangeTide (124937)]

I disagree. Blu-Ray and HDMI and HDTV and IPTV are all hot technologies with consumers right now and all have very intrusive DRM.

I think Vista is having trouble in the market because consumers perceive it as incompatible, slow, unstable and annoying (with its attempts to protect users by using a million dialogs). Vista will win out despite consumers because Microsoft has the strength to force a noisy minority to comply. (it's a significantly large minority though!)

Re:

[Jonner (189691)]

You're painting with some very broad strokes there. I receive completely DRM-free and free of cost HDTV broadcast all the time. AFAIK, the FCC neither requires nor allows any kind of DRM on ATSC broadcast, though it has been threatened and defeated (hopefully indefinitely) in the form of the "broadcast flag."

Also, IPTV does not refer to any particular system or standard, but just the general approach of sending TV over IP. I don't know how many different IPTV systems there are, but there are probably some t

Re:

[aplusjimages (939458)]

I have to disagree. I think you're thinking of alcohol.

Re:

[dgatwood (11270)]

What's the point of the beer if you aren't watching the big game? Trust me, you screw with TV and you'll even have the alcohol companies marching in the streets....

Re:

[noidentity (188756)]

I know you joke, but it's the truth. Why else do you think the government organized a huge coupon program to help people get the converter boxes? And kept pushing back the changeover date as well...

Re:

[headkase (533448)]

As the "Dead Kennedys" so aptly put it: Give me convenience or give me death!

Re:

[deblau (68023)]

But if you fuck with their television, you'll see angry roving mobs take to the streets that make "21 days later" look like a tea party.

I live in Boston. We can get pretty angry at our tea parties.

Dish DVR

[by Anonymous Coward]

FYI this has no effect on anyone with a newer model Dish DVR, i.e. they aren't going to take it away from you. New software was pushed out 6 months ago to replace the infringing software. If you have a real old one, now is a good time to upgrade.

new software was pushed out 6 months ..

[rs232 (849320)]

"New software was pushed out 6 months ago to replace the infringing software"

Like where does it say that, do you have any citations. If as you say new software was pushed out then why did they lose the ruling and why are they appealing.

"Dish is now saying that they actually will appeal this verdict all the way to the Supreme Court"

Re:

[Teran9 (1163643)]

You can look up the press releases from Dish that say that they have updated their software. They are appealing because they don't want to have to shell out the bucks for past transgressions.

Re:

[Burgundy Advocate (313960)]

Actually, 'next-generation' software was pushed out for all models. Nothing is going to stop working. The article description is highly incorrect.

Re:

[danielsfca2 (696792)]

I don't know about you or your parents, but our Dish DVR wasn't hard to use in the slightest. It was far superior to the crap Comcast pushes.

And I'm sure plenty 60-year-olds, no offense intended towards my elders, couldn't figure out how to do more than pause and rewind on TiVo either.

(I've never had a TiVo because I refuse to pay $15/mo for the rest of my life for a few kilobytes of guide data. When I moved to a no-dish apartment, I built a PC-based DVR that kicks ass).

Responses

[ArkiMage (578981)]

Tivo's:
http://investor.tivo.com/releasedetail.cfm?ReleaseID=304285 [tivo.com]

Dish's:
http://dish.client.shareholder.com/releasedetail.cfm?ReleaseID=304293 [shareholder.com]

The latter includes these tidbits:

The decision, however, will have no effect on our current or future customers because EchoStar's engineers have developed and deployed 'next-generation' DVR software to our customers' DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuit's ruling.

"All DISH Network customers can continue to use their DVRs without any interruption or changes to the award-winning DVR features and services provided by DISH Network.

"We intend to appeal the Federal Circuit's ruling to the United States Supreme Court."

Re:Responses

[BACPro (206388)]

If DISH network has corrected the problem with a new software download, why do they need to pursue this to the US Supreme Court?

It would seem that it is SOP for a manufacturer to EOL a piece of equipment. Tell the users they need to upgrade. There will be some gnashing of teeth, some users will flee, but if the new product is better... Some people need a shove to move on.

Having said that, I would be pissed off if someone told me I had to abandon a perfectly functional piece of kit and upgrade. I sure a community of terrorists that have hacked their own distro of Linux onto it to maintain functionality could be found. Someone would do it because they could.

Any idea how this affects Bell Express Vue in Canada? I notice about 3 months ago we received new software that did more things that were TIVO like. Record all eps, record all new eps, priorities and so on...

Re:Responses

[1729 (581437)]

If DISH network has corrected the problem with a new software download, why do they need to pursue this to the US Supreme Court?

It might have something to do with the $92M judgement.

Re:

[LostCluster (625375)]

If DISH network has corrected the problem with a new software download, why do they need to pursue this to the US Supreme Court? Because the courts have valued the use of TiVos patents for the time that Dish was using them without permission at $92 Million. The appeals process is all they've got to avoid, or maybe just delay making that payment. Just because you've stopped doing the illegal act, doesn't mean you get away with what you did in the past.

Re:

[westlake (615356)]

If DISH network has corrected the problem with a new software download, why do they need to pursue this to the US Supreme Court?

The appeal to the Supreme Court is routine. The denial of cert is also routine. The Supremes take on only the 150 or so cases each year that they think are genuinely worth their time.

Re:

[vtcodger (957785)]

***Since they did the f*cking thing has failed to record the shows I want to watch about half the time.***

I'm pretty sure that someone -- Verizon? Microsoft? -- has a patent on not doing what is requested about half the time. Another patent infringement? Dish's patent problems may not be over.

RTFA

[mrsam (12205)]

No, Dish can (and if you RTFAed, they will) appeal to the Supremes.

But, true, Dish has a tough hill to climb. The Supremes only accept a small percentage of all appeals. Dish's goose is mostly cooked.

Re:

[Zeinfeld (263942)]

I found the original article somewhat interesting as it stated that the rulling was absolutely final with no chance of appeal. Which as anyone would know is not the case as there is always the option of an appeal to the Supreme court.

In ordinary cases this would not be very likely to succeed, but the SCOTUS has already accepted an appeal on a similar patent issue. And it is very likely that this will be decided in a maner that would affect this case.

But any journalist who was familiar with patent law is

Directv and DRM

[ciscoguy01 (635963)]

This is related, in some way.
I have a crappy, buggy Directv HR20 HD DVR. I received a message a couple days ago.

Effective April 15, 2008, DVR recordings of PPV movies will be available for 24 hours of unlimited viewing after purchase. Major movie studios have required that satellite and cable providers alike may no longer allow their customers to view these recordings for longer than 24 hours. During the 24 hour viewing period, you will continue to enjoy all of your DVR features such as pause and rewind.

It seems if I were to record a PPV movie (I don't, I don't like their PPV prices) I now have only one day to watch it before they are going to remotely erase it from my DVR.
Unbelievable.
Now there's DRM for ya!

Re:This will just make tivo look bad

[OrangeTide (124937)]

Knowing Tivo they begged and pleaded for months to get Dish to pay for a license. Either Tivo asked for too much or Dish was uncooperative.

Re:This will just make tivo look bad

[Greyfox (87712)]

I'm rather biased against Echostar, having worked there briefly. Dealing with their HR department several years later to obtain some records was just as unpleasant as actually working for them was. I usually get knowing nods and comments from recruiters whenever I discuss it, so I know it is not just me who has had these sorts of problems with them.

If their legal department is anything like their HR department, talking to them was pretty much useless. I'd be surprised if Tivo had any recourse other than to sue them. Although I hate software patents and think that many DVR-related ones are completely retarded (TV Guide has one for the guide grid format, for example) I can't suppress a certain amount of glee that this misfortune has fallen upon Echostar. So I'm just going to point at them and go "Ha-ha!"

Re:

[PuckSR (1073464)]

Yeah, but knowing Dish Network...they probably weren't interested in paying someone for technology that they developed.

The entire patent is bogus. Tivo combined time-shifting with a digital storage device and an on-screen guide. Hmmm. Time-shifting is not patented by tivo. Digital storage of video is not patented by tivo. Dish Network and DirecTV actually hold prior art on the on-screen guide. This seemed like a fairly obvious usage of common technologies.

Remember. Dish Network is the same company th

Re:

[omeomi (675045)]

I thought DirecTV already used TiVo brand DVRs?

Re:

[chris234 (59958)]

DirecTV used to, but that's irrelevant as this is about Dish Network.

Re:

[BLKMGK (34057)]

They used to, they are now moving to an MP4 format for some of their HD with plans to move all of their HD to it eventually. The DTIVO boxes will be unable to decode this and their HD boxes will also be obsolete. I was going to move to HD but refused for over a year after getting an HD TV because I didn't want to be trapped in this morass (I had DTIVOs). I ended up waiting long enough that FIOS came along and saved me - I now have a TIVO HD and CableCards - very happy!

I have now had two friends BEG me to fi

Re:

[BLKMGK (34057)]

Umm, Direct has some licensing going on and ComCast has also licensed TIVO software from TIVO and is starting to load it on some of their own DVR STB hardware with future plans to roll it out. As for making TIVO look bad, TIVO built some innovative software and patented it. DISH *knew* this, even looked at their software to use it themselves maybe, but afterwards decided to build their own. Like them or not the software patent was there and DISH infringed, worse they built SHITTY software for which I left t

Re:

[Roger W Moore (538166)]

Also, does this have ramifications for other disk-based DVR's such as those offered by cable companies and DirecTV?

Can you even buy disc based DVRs in the US anymore? I was visiting the in-laws at christmas and thought I'd pick up a cheap DVR in the US (given the the US$ is so weak compared to the Canadian at the moment) and could not find one anywhere. Best Buy, Wal-Mart, some local Albuquerque shop - nothing and the same on their websites.

A few years ago in Chicago they were all over the shops and t

Re:

[RalphSleigh (899929)]

Like he said, decoupling the DVR from your television provider would be a great thing. Here in the UK you are free to choose a freeview DVR, or just a converter box, but sky and cable come with their own.

Re:Its not going away

[rajafarian (49150)]

Pet peeve - you infringe somebody's patent - not violate it.

Yeah but violating it sounds funnier.

Re:

[mr_matticus (928346)]

Actually, infringement is one method of violation, so you do both. Infringement is more specific and usually the case with a patent claim, but violation is not incorrect.

Re:

[DragonTHC (208439)]

if you actually owned a tivo, you wouldn't be saying any of that. Tivo really provides a better dvr experience than any other. That and dish network decided they didn't want to deal with tivo in the beginning. So they just made their own bed.

kudos to tivo for protecting their business.

Re:Die, TiVo

[TooMuchToDo (882796)]

Perhaps it's that Tivo "just works"? If I wasn't gainfully employeed and had tens of hours a week to burn, I'd get a MythTV box. If I wanted to be frustrated all the time when watching TV, I'd get a Comcast DVR system. Tivo's benefit isn't software, or the guide data, it's usability. Those of us with disposable income don't mind paying $15/month to have all of our shows waiting for us and not having a problem when we try to watch them.

Re:

[BLKMGK (34057)]

Nothing non-obvious? So then you thought of it first? Wow! Oh wait - you didn't?! Then sit down and shut up.

I've seen\used the other DVRs that are apparently also using the same "obvious" ideas and they SUCK while using a TIVO is actually pretty good. Gee, why is that? Could it be because TIVO has had incentive to innovate and not just give us a VCR with the tape swapped for a HDD? Perhaps because they are divorced from the service providers tit and have to work to get customers?

I like my service providing

Re:

[Waffle Iron (339739)]

I've seen\used the other DVRs that are apparently also using the same "obvious" ideas and they SUCK while using a TIVO is actually pretty good.

How does that relate to the "Time Warp" patent (#6,233,389)? This patent is actually rather narrow and describes low-level implementation details that are totally invisible to the user. The claims are, IMO, obvious to an average developer, but they are worded in such a way that it's not hard to come up with a slightly less obvious implementation that doesn't infringe. The fact that EchoStar put out a software update that works around the patent supports this.

You're talking about the quality of the GUI a

Re:

[vrmlguy (120854)]

Well, not me personally but the guys I went to college with in the mid 90s. They had cable fed into TV tuners and streaming to drives, controlled automatically by TV listens off the Internet. This was an obvious convergence of 1) TV tuner cards, 2) fast-enough processing at affordable prices, and 3) cheap-enough storage. TiVo came along and boxed it all up, then patented what other people had already been doing.

Except that you haven't described TiVo's patent. They cover using a circular buffer so you can watch while you're streaming, without saving to a file.

Even thought I own a DishNetwork receiver, I think that TiVo was right to get their patent and Dish Network shouldn't have fought as hard as they did. TiVo isn't a bunch of patent trolls; they built and marketed hardware which other people copied.

Re:

[mrsbrisby (60242)]

... but didn't offer anything I hadn't already seen people doing with TV tuner cards.

Really? I didn't see anyone using their TV cards to pause and rewind live TV. Can you point to some software that existed prior to 1997 that did this?

Otherwise would you shut the fuck up please?

Re:Die, TiVo

[netringer (319831)]

TiVo has patents on the "jump to tick" on the timeline and the 8 second jump back among other things.

No. Those features DID NOT exist until Tivo came out with them, and you won't see them on any other other PVR - due to the patent.

TiVo's UI and remote and functionality is the absolute best thought out.

I'm going to have to give it up soon, thanks to DirecTV and TiVo divorcing, and TiVo deciding to diss legacy (Lifetime) customers with the removal of discount rates for additional units.

I really hate that situation.

I'll be signing with AT&T UVerse as soon as they get my house address listed as green in the database. I wish they used CableCARDs so I could keep my HD TiVo. *sigh*

Re:

[netringer (319831)]

OMG! The "8 second jump back"! What an amazing, novel concept! Hold us back, lest we froth at the mouth at this momentous innovation!

Spoken like a person who never had it.

The innovation is not only that it can jump back 8 seconds, but that there is a single button right your finger to do it. What's obvious is rewind. A one-button "Wait! What was that just now?" rewind is and was novel.

The jump back is so essential, I've caught myself reaching for it on the car radio.

I held off buying an iPod until the Appl

Re:Unlikely

[Achromatic1978 (916097)]

Replying to this to get a post near top:

DISH WILL NOT have "to turn off DVR to most of its customers". Anyone using the 622 or 722 (what they ship now as their DVR offerings) is NOT affected. Software was upgraded months ago specifically to get around the patent. If you have a far older DVR, then all this means, is you'll get a free upgrade to the new model, rather than paying for it. A pain in the ass though the patent is, a travesty this is not.

Mmm, pimping your own misleading blog FTW! It's not like many people in the comments of his own blog entry he submitted didn't point out this RATHER MAJOR DISCREPANCY... but oh noes! Removing scaremongering does not help pageviews, does it?

Re:

[NateTech (50881)]

Not to mention that Dish like other large companies who have lost patent cases in the past, will simply "license" whatever tech they infringed upon. The lawyers get paid (again) and Tivo gets a well-deserved cash-flow fix.

Whoever thinks Dish will simply turn off DVR service with the flick of a switch, is sorely lost when it comes to even simple business tactics, let alone creative thinking.