– in the United States –

But, clearly, there are a few people who claim they have, in fact, copyrighted yoga moves and have used them in various legal fights.

I never even knew the “guy” whose name you mentioned even existed…but then again I am not into yoga. Wondering who he was I looked him up, noted he runs, inter alia, a “yoga training business”…what appears to some degree to mimic a franchise. Given the reference to “IP”, I took a look at the online databases at the USPTO and the Register of Copyrights. None of those databases reflected any patent, trademark or copyright registration directed to anything other than yoga accessories, trademarks and service marks being purportedly used in association with the sale of goods/services. All copyright registrations were identified as being directed to either text or audiovisual goods. In other words, I saw nothing that could reasonably be considered as a hindrance to the practice of yoga by others, be it traditional or contemporary yoga.

I also learned for the first time that some years ago this individual started trying to expand the scope of one of his copyright registrations to embrace the use by some of his former “students” of the specific sequence of “poses” (note: plural and not singular). Apparently these people got a bit miffed at his assertions and filed a declaratory judgement action seeking a court ruling that they were free to practice precisely what he was complaining about. He filed a motion with the court to have their lawsuit dismissed for failure to state a legal claim. He lost on this and other procedural motions. During arguments on the motions the court apparently noted that perhaps he might have a very, very “thin” claim on his specific “sequence of poses” comprising his “yoga method” as a “performance”, but at best this was a long-shot. Interestingly, in the motion arguments it appears none of the plaintiffs mentioned the apparent absence of any registration of a copyright directed to a “performance”. Also, importantly, it appears that his claim was based upon legal principles pre-dating enactment of the Copyright Act of 1976. Prior to that time federal law covered “published works” and states were able to afford state law protection for “unpublished works”. Thus, the gravamen of his long-shot claim was based upon state copyright law in California, and did not appear to be based upon any federal copyright law under the Copyright Act of 1909. For procedural reasons the court did note that factual questions not ripe for resolution at the pleadings stage were presented in the pleadings, questions that would a trial to develop the facts and determine if the defendant could meet his burden of proof (regarding which the trial court expressed substantial doubt). A trial date was scheduled, but a trial was never held because the defendant and plaintiffs rendered it unnecessary by entering into a settlement agreement. I do not have access to that agreement, likely because virtually all such agreements are deemed confidential by the mutual assent of all parties involved in a pending lawsuit. Given the facts as alleged in the pleadings, the trial court’s ruling on the motions, the scope of copyright under California law and the trial court’s admonition to the defendant that his claim on the basis of copyright, while not impossible, was extremely thin (a nice way of saying by the court “Good luck in trying to prove your case because you are going to need it by pulling a rabbit out of a hat…and rabbits are in short supply). Based upon my experience before California courts, it seems quite clear to me that the court was not buying into the defendant’s assertions, but by law was not able to dismiss them as a matter of law under the governing rules of civil procedure.

Other than the one instance noted above, I am unaware, after perusing the PACER database, of any other attempts by the defendant to pursue legal actions. It seems that the defendant “got the message” and retrenched back to operating his “yoga business”. Of course, this does not mean that he could have a change of heart, but at best the only likely claim he could raise in the future would be a breach of contract claim against former students of his yoga method. Others not a party to such a contract would most likely not be affected absent some type of proof that they openly encouraged one or more of his former students to breach their contracts. The likelihood of this happening is remote, bordering on virtually nil, though I cannot totally discount the fact that there may be “yoga” people out there who are not the brightest bulbs in a lamp.

IF YOU PRESENTED A SHRED OF EVIDENCE.

There are shreds of “evidence” all over the place if one only takes the time to look. Anti-Monopoly recently noted one such “shred”. More relevant, however, is that all of the “shreds” for and against I find largely unconvinging simply because I have as yet to read any study that in my view relies upon a data set that I believe is relevant to the study. Petra Moser, who looked at an Exposition in the late 1800’s, is but one example. Her assumption was basically that if a “thing” was important enough to exhibit, then it would seem to follow that it was also important enough to patent. This is a faulty premise. I have seen thousands of inventions that were manifestly important to a business, but for which applications were never filed for a myriad of reasons. Quite frankly, I am not at all even sure that across all industries it is possible to establish any “casuality” between important “stuff” and patents. Yes, sometimes patents are obtained, but more often than not they are not obtained. IP is nothing more than a set of “legal tools”, some of which may be helpful at some point in the future and some of which have no applicability given a business’s business plan for the short term and into the future.

I have stated that the Levine/Boldrin book is likewise fraught with what I view as significant deficiencies in the data set initially chosen. Of course, it does help their case by their resort to hyperbole, making their book at times appear to be less than an economic analysis and more like a simple (albeit lengthy) rant. Moreover, much of their discussion about cases/situations dealing with a specific patent is full of factual errors, and it is difficult to accept their study as compelling evidence if they appear to have difficulty accurately articulating the facts.

I could name more of the research you rely upon, but I am omitting it in the interest of brevity. Keep in mind, however, that I do not limit my views to merely the research conducted by those some would characterize as being Anti-IP. I have equal concerns with much of the Pro-IP research. In each instance I have noted that the researchers seem to have fallen prey to having a definite opinion one way or the other, and have then cherry-picked data in support of their opinion. Just once I would like to read a study where the initial data set I believe is relevant, study the data, and then let the data determine the ultimate conclusions drawn.

As a final note, in another thread you asked me some questions concerning my views of the patent system. I gave your questions considerable thought, and then proceeded to provide answers as best I could. I am surprised that you appear to not as yet have read them. I urge you to do so and to feel free to ask for clarification on any points raised.