A federal judge in Los Angeles has just dismissed the antitrust claims of StreamCast Networks, a peer-to-peer software vendor, against Skype Technologies, a successful Internet company, and other defendants. While these federal claims have been deemed to lack merit, StreamCast has leave to file other claims in state court.

According to StreamCast's most recent complaint, it seeks relief resulting from "an elaborate over-seas shell game" that was designed "to steal and wrongfully profit from technology that rightfully belongs to StreamCast."

Specifically, StreamCast alleges that in March, 2001, it entered into a license agreement with defendant Kazaa for the rights to a P2P software application called FastTrack. In April, 2001, StreamCast allegedly began distributing the FastTrack software publicly under the brand name Morpheus. It is alleged that this allowed end users to search for, find, and download almost any type of digital file over the Internet.

The complaint alleges that StreamCast continued to operate the Morpheus FastTrack network with success until February, 2002, when Kazaa and others activated a hidden "disabling" feature within the FastTrack software, which effectively shut down the network. "Overnight," StreamCast's entire user base of more than 28 million people was "funneled" to defendant Sharman Networks, which had recently acquired the FastTrack technology from Kazaa.

At rock bottom, StreamCast asserts that the transfer of the FastTrack technology from Kazaa to Sharman was in violation of the March, 2001 license agreement, which allegedly provided StreamCast with a right of first refusal in the purchase of FastTrack and any other Kazaa assets. StreamCast further argues that the increase in the Sharman/Kazaa user base created a "networks effect" momentum "that no other P2P market, company, technology or network was able to match," in a way that Sharman/Kazaa "achieved undeniable world dominance of the file-sharing market."

StreamCast alleges that it attempted to revive its Morpheus network and regain its former market share by promptly search for a new file-sharing program. StreamCast asserts that it finally settled on Gnutella, which used "broadcast query algorithm rather than super nodes," causing it to be slower to respond to user searches than FastTrack. Thus, while many users allegedly returned to Morpheus on its re-launch in March, 2002, they rapidly became frustrated and "swung away" to Kazaa or later new entrants.

StreamCast asserts that it continued to operate the Morpheus network using Gnutella with few users until February, 2004, when it added the ability for its users to also connect to the eDonkey and G2 P2P networks. And then in September, 2004, StreamCast states that it acquired a new P2P file-sharing technology platform based upon technology, referred to as Skyris, that permitted users to connect to Gnutella, eDonkey, G2 and a new "Neo Network." Based on all of this, StreamCast alleges that it has been able to rebuild its Morpheus user base back up to six million monthly users.

While this was going on, StreamCast alleges that a Luxembourg company called Skype Technologies was formed. StreamCast asserts that certain individuals orchestrated a transfer of the source code and core of the FastTrack technology to Skype, which Skype then adapted to offer Internet-based voice communications services, referred to as VoIP, to consumers around the world.

StreamCast alleges that in September, 2005, eBay purchased Skype for more than $4.1 billion.

Soon after that, StreamCast filed its original complaint in federal court, asserting various claims against multiple defendants. The court was called upon to rule on motions to dismiss aimed at this complaint and then an amended complaint. Ultimately, a second amended complaint was filed in November, 2006, raising 14 causes of action against nineteen defendants.

This month, the court has ruled on motions to dismiss StreamCast's third and fourth causes of action that seek relief under the Sherman Act and the Clayton Act for alleged antitrust violations by the defendants.

The defendants argued that antitrust claims are defective because, despite the factual story alleged by StreamCast, StreamCast failed to allege a legally cognizable and relevant product market for antitrust purposes. The defendants also argued that StreamCast failed to allege that they had requisite market power to restrain trade unreasonably or to possess a monopoly. Finally, the defendants asserted that StreamCast lacked "standing" for antitrust purposes because it had failed to plead true antitrust injury.

Ultimately, the federal judge agreed with the defendants, and granted their motion to dismiss SteamCast's two antitrust claims. In so doing, the federal judge noted that the many, remaining claims are asserted under state, not federal, law. Having dismissed the two federal claims, the federal judge decided to dismiss the entire case, as he has no obligation to proceed with a case solely based on state law.

Thus, while StreamCast's two federal antitrust claims have been dismissed "with prejudice" (meaning that they have been finally resolved at the trial level), StreamCast is free to file its state claims in state court.

At the end of the day, while StreamCast has tried to paint a picture of wrongdoing and harm, it has not met with a receptive audience in court in the first instance. Perhaps it will try another go in state court, and time will tell whether StreamCast can gain any litigation traction, or whether the state court likewise will not be grabbed by StreamCast's allegations.

Biography

Eric Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to with the word "Subscribe" in the subject line.

Disclaimer: This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Reprinted with permission of Findlaw.com