Studios vs. Real Networks adds antitrust twist

By Eriq Gardner

Earlier this year, on the eve of a California district judge deciding whether to issue an injunction preventing the release of a software that allowed consumers to copy DVDs to their hard drive, Real Networks amended its complaint against film studios to include allegations of an antitrust conspiracy. 

In some quarters, the move was seen as a desperate attempt to change the playing field on a game that wasn't going well for Real. It did, though, add some new intrigue in the case.

Flash forward six months.

After suffering a major defeat when Judge Marilyn Patel decided to halt sales of RealDVD, Real Networks appealed the case to the Ninth Circuit. That move was expected. Real will try to get the injunction lifted while attempting to convince a jury it has a "fair use" right to make digital copies of DVDs.

But before the case moves to trial, Judge Patel still has to decide the sticky issue of whether Real Networks can pursue its antitrust claim.

This month, both sides have been lobbing memoranda in the studios' motion to dismiss Real's antitrust allegation.

Real believes that "each of the Studios could, acting independently, license RealNetworks to make and sell a device that copies their DVD content onto a hard drive."

Lawyers on the studio side seem to be getting a little peeved about this argument. 

"It is obvious what is going on here," reads a memorandum filed a week ago by the studios. "Real was properly enjoined from engaging in illegal conduct and now is looking for litigation leverage."

Expect a decision soon.