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Cobra, rabbit and half-tortoise are headed for trial. In a mixed ruling Friday, U.S. District Judge Phyllis Hamilton denied both plaintiff and defendant summary judgment in a dispute over whether a yoga entrepreneur can copyright a sequence of yoga poses. Open Source Yoga Unity had sued Bikram Choudhury after Choudhury sent cease-and-desist letters to yoga studios that he believes were ripping off his intellectual property. Choudhury is the most recognizable proponent of so-called “hot” yoga, also known as Bikram yoga. He has registered a copyright for a sequence of 26 asanas, or poses, to be performed in a heated room. Most yoga classes don’t follow strict sequences and aren’t specially heated. Open Source believes ancient yoga techniques cannot be copyrighted and wanted a preemptive declaration from the courts to stave off any infringement claims Choudhury might make. But in her order Friday, Hamilton leaned in favor of Choudhury. “[Open Source] has provided no persuasive authority that a compilation of yoga asanas cannot be protected under the copyright laws in the same manner as other compilations,” Hamilton wrote. “Therefore, if the trier of fact determines that a sufficient number of the individual yoga asanas are arranged in a sufficiently creative manner, copyright protection for the yoga sequence would be available.” Although the spectacle of people exerting themselves is unlikely to occur at trial, Hamilton nevertheless acknowledged the case was unusual. “The court, while recognizing, and even agreeing that application of the law of compilations to yoga asanas appears to violate the spirit of yoga, has been unable to locate any authority that precludes such application,” Hamilton wrote. Susan Hollander, a partner at Manatt, Phelps & Phillips who represents Choudhury, said she took that as a nod to media stories that have portrayed Choudhury as trying to copyright ancient techniques that are in the public domain. “Maybe it was a recognition of the degree of attention to the case and how some people view this case as attempting to appropriate yoga in general, which it is not,” Hollander said. Choudhury has his own certification process that permits yoga instructors to use his name and technique, but some studios copy him without permission, Hollander said. But Open Source attorney Elizabeth Rader of Pillsbury Winthrop Shaw Pittman said that’s Choudhury’s own fault. His techniques have been in the public domain so long they’re now generic, and cannot be protected by copyright, she said. Rader, who is with Shaw Pittman’s East Palo Alto office, hopes the court will eventually view the sequence as exercise and not a form of copyrightable artistic expression like a choreographed dance. “This is a method. Methods are only protected by patents,” Rader said. “He may have put postures in this order but that isn’t sufficiently inventive.” Besides Rader, Open Source is also represented by Keker & Van Nest’s Michael Page, who recently worked on MGM Studios Inc. v. Grokster Ltd., 04-480, at the U.S. Supreme Court. The case is Open Source Yoga Unity v. Bikram Choudhury, 03-3182.

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