Friday, January 8, 2010

Court dismisses RealNetworks' antitrust counterclaims against studios in RealDVD suit

A federal judge has rejected RealNetworks' claims that the major movie studios violated antitrust law by banding together to prevent the sale of RealDVD, a software product that enables copying of DRM-protected DVDs. Last August, Judge Marilyn Hall Patel preliminarily enjoined Real from selling RealDVD, finding that the studios were likely to prevail in their argument that the software violates the anti-circumvention provisions of the DMCA. In the middle of the preliminary injunction hearing last spring, Real asserted antitrust counterclaims, which Judge Patel today dismissed without leave to amend.
RealDVD Antitrust Order

Given that a subsidiary of my current employer is a party to this suit, I'm not going to comment in any detail, other than to note the court's holdings that: 1) any injury Real allegedly suffered resulted from its decision to distribute a product in likely violation of the law; and 2) the studios had every right under the Noerr-Pennington doctrine to work together in their litigation against Real:
Real did not believe a license was required and indeed launched its product without having obtained any license. The distribution of its product has been disrupted only by the entry of a TRO, and later a preliminary injunction, by this court. Real’s injury resulted from that relief, which was necessitated by Real’s own possibly unlawful conduct. To the extent the Studios cooperated with one another and the DVD CCA to petition this court for relief, such cooperation unambiguously falls within the Noerr-Pennington exception to liability under the antitrust statutes. See generally Theme Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1006 (9th Cir. 2008).
Here is a Bloomberg story about today's decision.

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