Clock ticking on EchoStar's DVR

Jonathan Z. has a lovely analysis of the TiVo V Echostar decision last week.

"Last week a federal appellate court upheld a judgment against EchoStar in a patent case brought by TiVo. I think this case is fascinating, and open a chapter of FOI with it:

TiVo introduced the first digital video recorder (DVR) in 1998. It allowed consumers to record and time-shift TV shows. After withstanding several claims that the TiVo DVR infringed other companies’ patents because it offered its users on-screen programming guides, the hunted became the hunter. In 2004, TiVo sued satellite TV distributor EchoStar for infringing TiVo’s own patents6 by building DVR functionality into some of EchoStar’s dish systems.

A Texas jury found for TiVo. TiVo was awarded $90 million in damages and interest. In briefs filed under seal, TiVo apparently asked for more. In August 2006, the court issued the following ruling:

Defendants are hereby . . . 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.

That is, the court ordered EchoStar to kill the DVR functionality in products already owned by “end users”: millions of boxes which were already sitting in living rooms around the world with owners who might be using them at that very instant. Imagine sitting down to watch television on an EchoStar box, and instead finding that all your recorded shows had been zapped, along with the DVR functionality itself—killed by remote signal traceable to the stroke of a judge’s quill in Marshall, Texas.

With EchoStar’s lost appeal, that moment is now closer.

Such remote remedies are not wholly unprecedented. In 2001, a U.S. federal court heard a claim from a company called PlayMedia that AOL had included PlayMedia’s AMP MP3 playback software in version 6.0 of AOL’s software in violation of a settlement agreement between PlayMedia and a company that AOL had acquired. The court agreed with PlayMedia and ordered AOL to prevent “any user of the AOL service from completing an online ‘session’ . . . without AMP being removed from the user’s copy of AOL 6.0 by means of an AOL online ‘live update.’”

TiVo v. EchoStar and PlayMedia v. AOL broach the strange and troubling issues that arise from the curious technological hybrids that increasingly populate the digital world. These hybrids mate the simplicity and reliability of television- like appliances with the privileged power of the vendor to reprogram those appliances over a network.

We’ll be seeing more and more of these cases crop up. As our information appliances become exclusively tethered to their makers, the feature (for the maker, and sometimes the user) of being able to update it instantly also become the bug (for the maker, and usually the user) of being ordered to update it instantly. Randy Picker has written a terrific paper arguing that such tethering is a good thing — and that regulators should act to force manufacturers to tether their devices to they be updated later to conform to new or changing legal standards. I think he’s wrong, and in the book try to articulate what’s wrong with his position. His is the presumption to rebut, since actions like demanding the frying of a patent-infringing DVR are completely consonant with the law as it is today — it’s just that there hasn’t been that ability before...

From what I can tell, the stay pending appeal is now dissolved — which would mean that the 30-day clock is ticking towards hundreds of thousands of fried EchoStar boxes in people’s homes."