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Category — Legal Issues

German Police Charge Thousands in eDonkey Raids

Categories: BigMedia v P2P ProvidersPolice ActionsPrivacy

German authorities searched over 130 premises of alleged eDonkey pirates in Cologne and Bergheim on Tuesday. Police have charged thousands of eDonkey users alleging they were sharing up to 8,000 copyrighted works. The individuals face large fines of up to $19K and even jail time.

Sources: BBC | Slyck | Register | ZDNet | Reuters | MP3.com | United Press Int’l | Mac World

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Torrentspy Sues the MPAA for Conspiracy and Invasion of Privacy

Categories: BigMedia v P2P ProvidersCasesPrivacy

Text of Complaint
Torrentspy has filed a lawsuit against the MPAA, accusing the group of conspiracy, unlawful business practices, misappropriation of trade secrets, violations of the California Invasion of Privacy Act, and more. Valencie Media, the operators of TorrentSpy allege that the MPAA hired a former business associate to hack into its systems to access its confidential information.
Sources: ars technica | San Jose Mercury News (AP) | PC Magazine | The Register | CNet | ZDNet | ComputerWorld | Slyck | Security Pro News
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Morpheus’ Maker Streamcast Sues eBay over Right of First Refusal

Categories: AgreementsCases

Streamcast claims in a lawsuit filed Monday in the U.S. Central District Court in Los Angeles that Niklas Zennstrom and Janus Friis, the duo who developed the technology behind the company’s Kazaa and Skype, of breaking an agreement to give StreamCast the first right to purchase their FastTrack peer-to-peer protocol. StreamCast is seeking more than $4 billion in damages.

Sources:
CNet | USA Today (AP) | ars technica

Note: Streamcast has become quite litiguous of late. In April Streamcast turned about-face and chose to battle the RIAA and the MPAA despite earlier statements to the contrary. See earlier related stories posted on April 10, 2006.

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TiVo Seeks Echostar Injunction

Categories: CasesPatents

Evidently TiVo and Echostar could not agree on a post-judgment settlement. TiVo is now seeking a court order shutting down Echostar’s competing DVR. TiVo is seeking an order that would disable the DVR functionality in all but 192,702 of EchoStar’s DVRs already placed with customers. TiVo also seeks a recall of Echostar DVR products already with distributors and retailers and to stop the production of infringing products. A hearing on the matter is set on June 26/27. Echostar promises to challenge the jury trial verdict.

Sources: Rocky Mountain News | Engadget | Business Week (AP) | ars technica | LA Times (Bloomberg) | Washington Post

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Australia Copyright Reform to Add New Time/Format Shifting Exceptions

Categories: Fair Use/DealingInternational Legal Reform

Among other proposed changes, the Australian Attorney General has announced plans to add time shifting and format shifting exemptions into Australian Copyright Law.

Sources: Law Front | Michael Geist | Attorney General's Press Release

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BPI Finally Recommends Legalizing the Copying of Purchased Music for Personal Use

Categories: Big Media Makes ProgressFair Use/Dealing

The BPI, the body that represents British record companies, believes copyright on CDs and records should be changed to allow consumers to copy music if it is for personal use. Currently, it is technically illegal for anyone to copy a CD onto their computer for the purposes of downloading music onto their own portable music player.

Sources: Telegraph Co. UK  |  ars technica  |  The Register  |  P2PNet  |  Macworld  |  PC Advisor
 
Dale’s Comment: While this is a long-over-due recommendation, it amounts to nothing more than a token tilt towards consumer fair use/fair dealing rights. As music distribution models switch from CDs to electronic distribution of music protected by DRM and TPMs, the consumer will shortly be right back in the same place – having no legal way to copy their purchased music into alternative formats. U.K. laws implementing the WIPO Copyright Treaty will make it illegal to defeat the DRM/TPMs (that all future music will be wrapped in) thus effectively taking-away with one law what U.K. consumers might finally achieve of any such change to the U.K. Copyright Act is made.

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New Canadian Digital Rights Organization, the ORC, is Launched

Categories: Copyright

The EFF and Canadian Internet Policy & Public Interest Clinic (CIPPIC) have launched a new grassroots organization called Online Rights Canada to promote the public’s interest in technology and information policy. They believe that Canadians should have a voice in copyright law, access to information, freedom from censorship and other issues that face Canadians in the digital world.

Sources: Michael Geist  |  P2P Net  |  CanOpenER  |  Slyck
 
Dale’s Comment: It appears this group has been around since December 2005, but I’ve just got wind of it today.

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YouTube’s Looming Fair Use Battle

Categories: Big Media v InternetFair Use/DealingiVOD/iTVNew Business Models

In this interesting Engadget article, YouTube's fair use defenses are discussed in the context of an inevitable big media law suit alleging use of video clips infringes their copyrights. YouTube has been very conscientious about establishing copyright policies and removing infringing videos in their entirety, as required by the DMCA. For example YouTube quickly removed the Natalie Portman SNL video when NBC demanded this. But, the more interesting challenge will be when YouTube asserts that use of short video clips/snippets from big media sourced video (eg: a disputed penalty in a sporting event, the Janet Jackson wardrobe malfunction, a snippet from a David Letterman interview or top 10 list, etc.) is fair use under copyright law for educational, parody, commentary and/or criticism purposes. Assuming YouTube's current million-dollar-a-month burn rate doesn't take them down first, every fiber of my body tells me they are in for a fair use fight with broadcasters, organized sports and/or the MPAA at some point down the line.

Source: Engadget

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Echostar Follows RIM/NTP Playbook and Urges Judge to Stay TiVo Judgment

Categories: CasesPatents

USPTO Documents Filed Pertaining to this Challenge
EchoStar filed a request late last year with the USPTO to reexamine TiVo’s ’389 “multimedia time warping system” patent. Engadget reports that Echostar is going the way of RIM/NTP and are asking Judge Folsom to stay the judgment until word comes back from the patent office.

Source: Engadget

Dale’s Comment: Since the TiVo victory, numerous postings on various TiVo forums have indicated that TiVo has been negotiating a licensing deal/settlement with Echostar. No decision on treble damages for willful infringement has yet been handed down. And, of course, Echostar’s patent infringement counter suit against TiVo is still scheduled for next year.

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Consumer Electronic Association Runs Pro-Consumer Ads on Capital Hill

Categories: DRM AnalysisDRM-Free ServicesFair Use/DealingLobbying

Full-Sized Ad Copy
The Consumer Electronics Association has created a new ad, that will run in two Capitol Hill publications today. The add argues that it is time the content industry learns the difference between real pirates and average consumers and that consumers of lawfully acquired music should be able to use it however they wish.

Sources: EFF | Related CEA Fair Use Press Releases | Engadget

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Proposed “Perform Act” to Restrict Satellite & Web Streaming Recording

Categories: Big Media v InternetBigMedia v NewTechCopy RestrictionsFair Use/DealingLegal ReformSatellite Radio

Text of Proposed Perform Act
The PERFORM Act (“Platform Equality and Remedies for Rights Holders in Music Act of 2006“) was introduced into Congress yesterday. The bill prohibits satellite radio from offering its subscribers devices capable of recording off the air unless royalties are paid and content is locked with DRM. The catalyst for the bill was new devices XM Radio is bringing to the market that allow customers to save songs on the receivers. Sirius had already made deals with the major record companies that compensate them for downloads on its S-50 receiver.

Also in the bill is a provision that would effectively require music webcasters to use DRM-laden streaming formats, rather than the MP3 streaming.

Sources: EFF Deep Links | ars technica | BBC | TMCNet | Reuters | Billboard | CNet | Tech News – HRCC’s response | Red Herring | Hollywood Reporter | Washintgon Times | Techdirt | PublicKnowledge | Cathy Kirkman

Dale’s Comment: Aspects of this bill have merit. I agree that anyone wishing a permanent, transferable copy of a song broadcast through XM or Sirius should pay for it. If, however, the device does not permit the user to copy the song to an external device, then the concept is more akin to a PVR such as TiVo and fair use rights should allow the user to enjoy the song within the specific device for a reasonable period of time without an additional royalty payment – remember, XM and Sirius subscribers already pay compulsory royalties via their subscriptions to these services. To the extent an additional royalty payment is made to purchase a song, the user should have the right to copy/transmit the song off the XM/Sirius device to any other device owned by the user and, of course, all the other incidents of fair use for purchased music that I advocate for on this site should apply – the right to of the owner to transcode it to any other format, the right to play it on any device owned by the consumer, the right to sell/give-away/alienate the purchased copy (without retaining a copy) etc. If, however, this bill results in an obligation to pay for music that can’t be removed from the device or otherwise fairly used by the user, it should not be adopted.

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Canadian Music Creators Coalition Formed to Counter CRIA/RIAA

Categories: Artists Against DRMFair Use/Dealing

Many of Canada’s most prominent recording artists, including the Barenaked Ladies, Avril Lavigne and Sarah McLachlan have formed the CMCC to have their “voices heard about the laws and policies that affect our livelihoods”. Contrary to the lobbying efforts of the CRIA/RIAA, the CMCC believes that: (i) suing fans, as is done by CRIA and the RIAA, is destructive and hypocritical – “the government should repeal provisions of the Copyright Act that allow labels to unfairly punish fans who share music for non-commercial purposes with statutory damages of $500 to $20,000 per song”; and (ii) digital locks enforced by DMCA-like laws are risky and counterproductive – “laws should protect artists and consumers, not restrictive technologies – consumers should be able to transfer the music they buy to other formats under a right of fair use, without having to pay twice.”

Sources: CMCC Press Release | CMCC Website | Michael Geist | Howard Knopf | Globe & Mail | ars technica | P2PNet | Digital Copyright Canada | Wired Bogs | Tech News World | Linux Electrons | CD Freaks | EFF

Dale’s Comment: As Howard Knopf so eloquently says: “This is music to my ears”. The CMCC is essentially calling for copyright reforms similar to those passed by the French Legislature on March 21 (see story here). Let’s see if American recording artists follow suit.

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Publishers and Copyright

Categories: CopyrightPolicy Analysis

In this very interesting piece, Professor David Vaver discusses the interesting history of copyright law and argues that copyright lasts too long, is too oppressive, too restrictive and that publishers should not only have copyrights, but duties as well:

Publishers owed legal duties of fair price and free access when the copyright term was only 28 years long, when their only exploitation right was to prevent outright copying of all or most of a work. They then had no power to stop translations, fair abridgments, even stage adaptations or performances. The copyright laws no longer impose the same legal obligations on publishers that they faced in the 18th and 19th centuries. But now that publishers have got copyright terms that run four or five times longer, now that they can control almost every way a work can be exploited, perhaps they should look into their souls and ask whether they do not continue to owe the public, morally at least, those same duties of fair price, fair access and fair contract.

Source: Slaw: Professor David Vaver

Dale’s Comment: I had the pleasure of studying International Law with Professor Vaver when he was a professor at Osgoode Hall Law School. He is now Professor of intellectual property & and information technology law, University of Oxford.

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Burst.com Countersues Apple for Audio/Video Delivery Patent Infringement

Categories: Patents

Burst’s technology speeds up the delivery of audio and video files over a network. Burst.com has filed a counter suit against Apple claiming that the iTunes software, the iPod and the Quicktime streaming software all infringe its patents. The company was involved in a similar patent infringement dispute with Microsoft last year that ended with a $60 million settlement and a Microsoft license to the Burst technology.

Sources: CNet  |  ars technica  |  PC Magazine  |  PC World  |  The Inquirer  |  GameShout  |  Pocket-lint  |  Red Herring  |  MacWorld  |  silicon.com

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TiVo Wins Patent Infringement Case Against Echostar

Categories: DecisionsPatents

– Jury Verdict Form Part 1
– Jury Verdict Form Part 2
After deliberating for about two hours (including a cigarette break), a Texas jury awarded TiVo $73,991,964 in lost profits and royalty damages. The award was less than the $87M TiVo sought. The jurors thought TiVo had not done everything it could to protect its patent. The patent was granted in 2001, but the jurors calculated the damage award starting in January 2, 2002, when TiVo started clearly marking its products with patent notices. As the jury found Echostar willfully infringed, the judge could treble the damage award. Echostar is vowing to appeal. TiVo has said it will next seek an permanent injunction. TiVo will no doubt be seeking license fees from both PVR manufactures such as Moxi, Microsoft, Cisco/Scientific Atlanta, Motorola and NDS, and U.S.-based cable companies using competitive PVRs such as Time Warner, Cox, Charter and Cablevision.

Sources: Fox News | USA Today (AP) | Bloomberg | CNet | MarketWatch | ars technica | Bloomberg | San Jose Mercury News | Business Week | L.A. Times | TiVo Press Release | Echostar Press Release | Red Herring | Oxford Press | PC Magazine | Link

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TiVo Case Against EchoStar Headed to Jury

Categories: CasesPatents

The Jury in the TiVo trial is expected to commence deliberations today after opposing lawyers give closing arguments and Judge Folsom gives his final charge to the jury. It is unclear whether they will deliberate at all on Friday (perhaps for a half day as Texas state departments and agencies work a half day on Good Friday). Judge Folsom denied both parties’ last-minute motions for matter-of-law judgments this morning. No settlement has been reported.

Sources: Marshall News Messenger (AP) | San Jose Mercury News (AP) | Grand Forks Herold (AP) | Team 4 News | The Ledger (AP) | Pierceland Herald | Wall St. Journal (Subscription)

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DAY NINE: TiVo-EchoStar Trial – Final Day of Testimony (Tues Apr. 11)

Categories: CasesPatents

The April 12 Marshall News Messenger account of the trial (upon which I am wholly reliant) largely presents a recap of some of earlier testimony. However, it does contain a few new testimony details.

Jim Barton returned to the stand to rebut allegations made by EchoStar’s witnesses claims that “trick play” technology elements existed in products prior to TiVo’s May 15, 2001 patent grant. Barton also refuted Ergen’s prior testimony: (i) that the only technology TiVo had to offer was a feature that tracked viewing habits of users; (ii) that these features invaded users privacy; and (iii) that TiVo wanted to sell that information to advertisers and split the proceeds with Echostar. [Dale's Note: This earlier Ergen testimony was not previously reported as far as I know]. Barton testified that this was not true, that as users of TiVo they did not want their privacy violated either, that TiVo’s method of aggregating data in no way personally identified individual users and that the the FTC gave TiVo a clean bill of health saying it obeyed the letter and spirit of all privacy laws. On cross-examination Echostar’s lawyer attempted to refute Barton’s claims that TiVo created a cost-effective DVR by pointing out TiVo’s boiler-plate language in its Jan 31, 2004 10-K where it said: “Consumers may not be willing to pay for our products and services since they are already paying monthly fees for cable and satellite connections.” [Dale's Note: What this gets Echostar I don't understand - this statement was nothing more than a typical boilerplate statement, the likes of which are made in every public company's SEC filings.]

TiVo also called Professor Jim Storer of Brandeise University as a patent ‘validity’ expert to counter Echostar’s ‘invalidity’ expert, Dr. Nathaniel Polish. The essence of Polish’s earlier testimony was that some 50 DVR-related “prior art” patents pre-existed TiVo’s patent, thereby nullifying TiVo’s patent claims. Storer testified that Tivo’s patent is “absolutely” valid: “This is pioneering technology … [s]ure, all these bits and pieces – that were very expensive – existed before, but I have seen no prior system that does all these steps …”. The prior patents dealt with “little pieces of technology … in incremental steps … [t]here’s a big difference between these and the gigantic leap of putting all of them together as is done in the Barton patent”.

Both sides rested their case Tuesday. Judge Folsom is using today (Wednesday) to rule on various issues and to prepare his charge to the jury. He advised the jury to bring a sack lunch on Thursday to start their deliberations.

Sources: Marshal News Messenger

Note: This story is being discussed in this TiVo Community thread.

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Who Owns Culture?

Categories: Big MediaBigMedia v NewTechDMCA-like LawsDRM AnalysisFair Use/Dealing

Lawrence Lessig presents a terrific speech/slide show explaining how promoters/users of each of the player piano, records, broadcast TV, cable TV, the Sony betamax etc. were, in their time, considered pirates and how, ultimately, the law evolved to favored the “pirate”. Laws adapted to changing technology. He points out some of the absurdities taken by the content industry then and now and argues against locking down content in a way that limits people’s creativity and fair uses of content. He argues against laws (such as the DMCA) that limit fair use rights to the 20′th century paradigm (as the RIAA and MPAA argue) and that limit the ability of content purchasers to fairly use content with future technologies. He argues against the rhetoric of the “war on piracy” and advocates that artists start speaking up to bring their thoughts ideas to the debate.

Source: Google Video

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DAY EIGHT: TiVo-EchoStar Trial (Monday Apr. 10)

Categories: CasesPatents

Echostar’s CEO, Charles Ergen, took the stand. Tivo’s lawyer, Sam Baxter, established that Ergen’s ownership in Echostar translates to $7.5 billion. [Dale's Note: Can you hear "David & Goliath in the back of your head?] In an attempt to discredit Echostar’s early claims that TiVo was bringing this case only because it was a loosing money, Baxter asked Ergen if this was fair. He pointed out that Echostar had lost $3.9 billion before it turned a profit. Ergen conceded that losses are to be expected when a company has to do a lot of R&D and customer education. When asked again if this was fair Ergen responded “I’ve seen a lot of criticism (of TiVo) from Wall Street, but I can’t say if it is fair.” When asked if profitability and criticism gives somebody the right to take someone’s IP, Ergen responded “no”, adding he and his company respected others inventions. Baxter attempted to get Ergen to agree that DVR is indispensable to Echostar’s customer retention but Ergen would not directly answer the question when asked several different ways. Baxter net referred to early Echostar comparative advertising copy which read “for people who think the idea behind TiVo is cool, but the price isn’t”. Baxter pointed out how TiVo is a verb and that sportscasters say things like “I wish I had TiVo’d that moment”. He asked Ergen if he had ever heard anyone say “I wish I’d 501′d that moment”. Ergen agreed he had never heard that. Ergen testified that Echostar had no need to steal TiVo technology since it employs its own staff of “the best engineering experts in the world’). [Dale's Note: Whether patented technology is independently developed has no bearing whatever on whether it infringes on someone else's patent claims - innocent infringement is just as much infringement as willful infringement.]

Echostar’s last witness was Dr. Nathaniel Polish, an inventor of DVR products. He testified that TiVo’s technology was nothing new and that more than 50 DVR-related patents had been granted before TiVo obtained one for its media switch. Among inventions that preceded TiVo’s was the Screamin’ Streamer, an EchoStar product, and the MRx1. On cross-examination Polish acknowledged that the Screamin’ Streamer was only used in-house and never marketed commercially and admitted that the MRx1 was not capable of recording and playing live TV simultaneously. Tivo’s attorney quipped, if the MRX1 was such a good product, “one wonders why they threw it out the door shortly after…” Media Four was purchased by Echostar.

Echostar rested its case and testimony is expected to be completed today (Tuesday the 11th). Judge Folsom told the jury they will have Wednesday off as he prepares his final instructions. As Friday is a holiday for some, the judge left it for the jurors to decide if they wish to deliberate Friday or not.

FYI… the following was posted by MTChamp on the Motley Fool subscription only board:

For those who use PACER, you may have already read some notices by Echostar in response to the courts rulings against Echostar, that testimony by EchoStar’s expert validity expert, Dr. Polish, was not allowed. He was going to argue prior art.

The other notice has to do with a couple of documents or exhibits Echostar wanted to show the jury from the Patent Trade Office as I understand it, to show that TiVo’s patent is being re-examined for validity. I guess the PTO is making sure there was no prior art that would invalidate the TiVo patent. I don’t know the details of why the PTO would do this, however the court would not allow Echostar to talk about it.

TiVo also filed a brief regarding EchoStar’s objections to some demonstatives of a possible prior art invention called Media Streamer. Echostar objected to some slides that TiVo was to show that illustrate how this Media Streamer device could not record a program while watching it and could not store and extract video at the same time. I guess the labeling wasn’t to the courts liking so TiVo has reworded these demonstratives with the language contained in a supplemental claim construction order made in March 2006.

Sources: Marshal News Messenger  |  Motley Fool (Subscription)

Note: This story is being discussed in this TiVo Community thread.

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CRIA Wants No Further Part in Canadian Blank Media Copy Levy

Categories: CopyrightDMCA-like LawsMedia Levy

In 1999, the Canadian Copyright Act was amended by adding Part VIII, permitting private copying of music for the “private use of the person who makes the copy”. In exchange the Canadian Private Copying Collective (CPCC) was established to collect levies on all recordable media (eg: currently 29 cents per audio cassette, 21 cents per CD-R and CD-RW and 77 cents per CD-R Audio, CD-RW Audio and Minidisk) and to distribute the levies to songwriters, recording artists, music publishers and record companies. The CRIA had spent 15 years lobbying for the levy. Apparently in response to the Canadian Federal Court’s preliminary decision in BMG Canada v. John Doe (since overturned in part), that “the downloading of a song for personal use does not amount to infringement”, the Canadian Recording Industry Association (CRIA) recently changed its tune [pun intended] saying to Billboard “We don’t want a private copying levy that, in effect, sanctions online theft”. Instead the CRIA is now advocating for Canada’s ratification of the controversial WIPO Internet Treaty which lead to the extremely controversial, consumer-unfriendly DMCA-DRM system in the U.S. The compromise reached in the 1999 amendment was, in exchange for the levy, reproductions of musical works for private use would not constitute infringement of copyright. Now as Canadian courts determine that this right may be inclusive of the right to copy music from P2P services, CRIA wants nothing to do with it.

Sources: Billboard | ars technica | Michael Geist | CPCC | .doc version of Billboard Article (from CCFDA) | CRIA | Copyright Act (Canada)

Related CRIA’s Own Study Counters P2P Claims

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DAY SEVEN: TiVo-EchoStar Trial (Friday Apr. 7)

Categories: CasesPatents

- Text of “Multi-Media Time Warping Patent” in Dispute
- Claim Construction Order (August 18, 2005)
Echostar called Stanford Professor Margaret “Maggie” Johnson to refute testimony by TiVo’s witness Dr. Jerry Gibson. By analogy to writing novels she testified that TiVo and Echostar used different approaches to writing software to achieve the same end. [Dale's Note: Frankly, I don't understand the point or substance of this testimony - based on the account in the article linked below!]. Moving on … TiVo next cross-examined Dr. Tom Rhyne. TiVo attempted to discredit Dr. Rhyne by painting him as an expert-for-hire. As Echostar had earlier done with a TiVo expert, Tivo’s lawyers ensured that the court learned that Mr. Rhyne was being paid $495 per hour as an expert witness. Rhyne acknowledged that TiVo inventor Jim Barton “knows more about DVRs” than he. Both Rhyne and Johnson acknowledged that they relied on what they were told by Echostar engineers as the basis for their testimony [Dale's Note: Frankly, I don't understand the point or substance of this testimony - based on the account in the article linked to this story! Please review it yourself to see if you can make heads-or-tails of it.] The last Echostar witness to testify Friday was Dan Landreth, Echostar’s V.P. of Engineering. He testified that in 1997 he and others from his prior company, Media Four, made a “sales pitch” to Echostar about their MRX1 “media stream receiver” invention which he claimed had “time-shifting” capabilities. He demonstrated the MRX1 to the jury. Landreth said that Echostar subsequently purchased Media Four and all of its I.P. Under cross-examination Landreth said that Echostar abandoned the MRX1 and a patent that had been pending for it at the time of the merger. Chu said that in order for a consumer to have a functioning MRX1 receiver it would have cost almost $5,000. [Dale's Note: The article does not indicate whether Landreth agreed with this.] Landreth, however, showed the jury a copy of a check for one of the first sales of the MRX1 receiver in the amount of $60,000. Landreth also admitted that at the time of the buy-out, Media Four’s sales had “dropped to zero.”

Sources: Marshal News Messenger

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TiVo Requests Curative Instructions Re: Improper Claim Construction Testimony

Categories: CasesPatents

- Claim Construction Order (August 18, 2005)
The terms “converts” and “object” were defined by the court in the August 18, 2005 Claim Construction Order. TiVo alleges that Echostar is re-arguing the definitions that the court previously determined for use in this case. TiVo alleges that “EchoStar’s deliberate use of claim construction that was not adopted by the Court is a very serious matter and requests, at a minimum, that the Court provide the jury with a limiting instruction on this issue”. TiVo is asking the court to instruct the jury to disregard testimony that conflicts with the Claim Construction Order.

Sources:
‘ChuckyBox’ on TiVoCommunity Forum  |  NewsJournal.com

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Geist’s CBC Interview: France Tunes Apple Out: Apple Bites Back

Categories: DRM AnalysisDRM as Market LockFair Use/DealingLegal Reform

In this CBC ‘The Hour’ episode Michael Geist is interviewed about the recent proposed French National Assembly Bill. If passed by the French Senate, the law would require companies such as Apple, Sony and Microsoft to open their DRM/TPM so that competitive media player manufacturers can make their products interoperable. With this law, just as CDs can be played on any CD player, regardless of the manufacture, digital content (eg: movies and music ) purchased online would be playable on any media player. Consumers would be assured that the thousands of dollars spent to purchase music online from, say Apple’s iTunes, will be playable on any competitive media player purchased in the future. Online music consumers would not be locked into using only the hardware provided by the music vendor. Michael argues, as do I, that Canada should consider following the more consumer friendly, ‘fair use’ copyright trends in France, Australia and Denmark rather than the overly restrictive RIAA/MPAA-lobbied-for DMCA/DRM approach adopted by the U.S. and Britain.

Source: CBC’s ‘The Hour’ Show <-- Note: Follow this link and select the first “France Tunes Apple out; Apple Bites Back” segment (dated March 22, 2006) to play the interview in Windows Media Player or Real Player.

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DAY SIX: TiVo-EchoStar Trial (Thursday Apr. 6)

Categories: CasesPatents

- Text of “Multi-Media Time Warping Patent” in Dispute
- Claim Construction Order (August 18, 2005)
Echostar called three witnesses. First up, Tom Rhyne, TiVo’s Expert witness – a retired electrical engineering professor from Texas A&M. Rhyne testified that while there were some similarities between TiVo’s patents and Echostar’s products, there were a number of ways the Echostar box differed from the functions outlined in TiVo’s patent. Ryan, [Dale's note: stating the obvious], said EchoStar boxes do not convert analog signals into MPEG streams. He pointed out that Echostar’s boxes do not separate audio and video components, as do TiVo products [Dale's note, since Echostar's product is an all-digital end-to-end, why would it?] and therefore do not reassemble them as the TiVo patent claims [Dale's note, the unstated premise being that this is all the TiVo patent claims]. Since MPEG is already in digital format, there is no need to do the two-step conversation as is needed on TiVo boxes that use analogue inputs. Rhyne said EchoStar products do not have/use a media switch as TiVo alleges.

Next up, Dan Minnick, vice president of software for EchoStar. Minnick also testified that there was no media switch. He also testified that after Echostar’s engineers met with TiVo’s engineers “early on”, they followed-up with Echostar’s inhouse counsel, Kerry Miller and that Miller gave them a verbal legal opinion over the telephone that Echostar did not infringe TiVo’s patent [Dale's note: I wonder if Miller rues the day he gave that opinion?] Minnick said “We know we don’t have a media switch because we broadcast in MPEG, we have no need for software that will convert (television signals) to MPEG. [Dale's Note: Interesting how they are narrowly defining the scope of the patented media switch with this testimony.]. Minnick explained that an in-house e-mail from an EchoStar engineer on the day TiVo’s patent was announced saying “Oh no, tell me it isn’t so?” was a sarcastic e-mail mimicking a clay cartoon character.

Finally, Jason Demas a senior Broadcom director testified that Echostar chose to source a DVR chip from Broadcom whereas TiVo, after being approached by Broadcom to do this on a chip, opted to use software instead. On cross-examination, Demas conceded that Echostar’s boxes are capable of the same “trick play’ features of pausing, re-winding and fast-forwarding live television as outlined in the Barton patent. Demas was not aware, as TiVo’s lawyer put it, that “Echostar has demanded — if they lose this trial — that Broadcom will pay for all the damages this jury may award”.

Tom Rhyne will be cross-examined Friday April 7.

Sources: Marshal News Messenger

Dale’s Comment: It appears that EchoStar’s strategy here is to pick away at the various TiVo patent claims and to argue that because they don’t infringe claim a, b or c, that they don’t infringe the patent. TiVo only needs to convince the jury that Echostar infringed ANY claim, not every claim to succeed. Rhyn’s point that there are a number of ways in which Echostar’s products differ from TiVo’s patent, it seems to me, is beside the point. What is relevant is the way in which Echostar’s products incorporate technologies claimed in TiVo’s patent – not in the relevant or irrelevant ways in which it is different.

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DAY FIVE: TiVo-EchoStar Trial (Wed Apr. 5)

Categories: CasesPatents

Echostar first made routine motions for dismissal (arguing Echostar’s use of non-infringing alternative technology) that were rejected by Judge Folsom. Echostar called its first witness, Dave Kummer, VP of Engineering and Technology. His testimony revolved around the development of EchoStar’s 7100 and 7200 set-top boxes that had a pause feature before PVRs existed. He testified that other features such as rewind, fast-forward and record were added to the 7200 model in December of 1999. He testified that when Barton approached Echostar in 2001 or 2002 about building a set-top box for Echostar, the company already had its own. After meeting with Barton, he says, Echostar determined that its customers did not need the extra features that TiVo was building for DirecTV. TiVo’s attorney Morgan Chu, in his remarks on cross-examination pointed out that “the key is the media switch … and there is a Barton media switch in every one of EchoStar’s products”. “We agree they built their own boxes, but we disagree that they own their own technology”.

Sources: Marshal News Messenger | NewsJournal.com

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