Bloomberg News

Yoga, Microsoft, Oracle, Netflix: Intellectual Property

June 28, 2012

The U.S. Copyright Office says that a sequence of yoga poses can’t be copyrighted.

In a release published in the Federal Register on June 22, the Copyright Office found that “a selection, coordination, or arrangement of exercise movements, such as a compilation of yoga poses, may be precluded from registration as a functional system or process.”

The policy statement acknowledged that the question of whether a sequence of “preexisting exercises, such as yoga poses” can be copyrighted has “occupied the attention of the Copyright Office for some time.”

The policy statement refers to the eight categories of works that the federal copyright law specifically names for protection, including “pantomimes and choreographic works.” Because “exercise is not a category of authorship,” the Copyright Office said in its statement, a “compilation of exercises” can’t be copyrighted.

The question has dogged many in the yoga community. Last year, Bikram Choudhury, the eponymous owner of Bikram’s Yoga College of India, brought several suits attempting to enjoin former instructors from teaching yoga that incorporated elements that he used, including a hot studio and the sequence of poses.

In the litigation, the defendants submitted an e-mail from Laura Lee Fischer, who was at the time the acting chief of the office’s Performing Arts Division, stating that yoga sequences couldn’t be copyrighted.

The new policy statement was a result of that e-mail.

David Carson, the general counsel of the Copyright Office, said in a telephone interview that the issue is one “that we had been mulling over for quite some time. Once the e-mail from the office surfaced in the litigation -- and it was at best an incomplete statement -- we felt like we needed to set the record straight.”

Carson added that the Copyright Office wasn’t seeking comment on the statement because it isn’t a proposed regulation. The statement clarifies “our practice.”

The lawyers representing Yoga to the People have filed the Copyright Office statement with the court. Jordan Susman, one of the attorneys representing the defendants, said only that “the Copyright Office statement speaks for itself” and otherwise declined to comment.

Choudhury’s lawyer, Robert Gilchrest, a partner at Silverman Sclar Shin & Byrne PLLC in Los Angeles, didn’t return a call seeking comment.

To read the Copyright Office release, click here.

The case is Bikram’s Yoga College of India LP v. Yoga to the People Inc., 11-cv-07998, U.S. District Court, Central District of California (Los Angeles).

For more copyright news, click here.

Patent

Microsoft Challenge to EU’s 899 Million-Euro Fine Rejected

Microsoft Corp. (MSFT:US) lost a European Union challenge to an 899 million-euro ($1.1 billion) antitrust fine, with a court saying it “essentially” upheld the penalty.

The EU General Court cut the fine by 39 million euros, or 4.3 percent, to 860 million euros in a ruling yesterday. The Luxembourg-based tribunal rejected all of Microsoft’s arguments over the fine levied by the European Commission for the company’s failure to obey an order to share data with rivals.

The fine was on top of Microsoft’s earlier penalties of 497 million euros and 280.5 million euros in the antitrust case and surpassed only by a 1.06 billion-euro levy against Intel Corp. during a period of EU scrutiny of U.S. technology companies.

The court’s endorsement of the fines “is likely to embolden the commission in pursuing procedural violations,” said Suzanne Rab, a partner in the London office of King & Spalding LLP.

Microsoft, based in Redmond, Washington, said while it was disappointed, it paid the fine several years ago. The world’s largest software company can challenge yesterday’s decision at the EU’s highest court, the European Court of Justice.

Yesterday’s ruling backed the EU’s so-called periodic penalty calculated because Microsoft was in breach of the EU order for 488 days, regulators said in 2008. The court cut the fine to take into account a letter from the commission in 2005 that accepted limits on Microsoft’s supply of information to open-source software developers.

Microsoft is the only company in more than 50 years of EU competition policy penalized for failing to comply with an order. The company reached a settlement in 2009, which allowed yesterday’s appeal, in a bid to repair the company’s relationship with the European Commission.

The case is T-167/08, Microsoft v. European Commission.

For more patent news, click here.

Trademark

Oracle Wins U.K. Supreme Court Ruling Over Marketing in EU

Oracle Corp. (ORCL:US), the world’s largest database maker, won a U.K. Supreme Court ruling protecting its right to be first to market its hardware in the European Union before third-party resellers may do so.

The judgment yesterday in London reversed a Court of Appeal ruling in favor of M-Tech Data Ltd., which was sued by Sun Microsystems Inc. in 2009 for importing Sun disk drives into the EU after Sun sold them in China, Chile and the U.S. Sun, purchased in 2010 by Oracle, may be first to market its goods in the EU under an “economically controversial, but legally well- established policy,” even if it had previously sold the products elsewhere, the Supreme Court ruled.

M-Tech, based in Manchester, argued that Sun tried to control the secondary market for its hardware in the European Economic Area valued at $1.07 billion in 2007, according to the judgment. M-Tech claimed Sun did so by withholding data from independent resellers that would have helped determine whether certain goods had already been sold in the region, producing a “chilling effect,” M-Tech said.

“The unlawful conduct alleged by M-Tech does not amount to a defense, even if proved,” according to a court summary of the judgment handed down by a panel of five justices. “On the agreed facts, the disk drives were never marketed in the EEA until they were imported by M-Tech without Sun’s consent.”

M-Tech is “surprised and disappointed with the decision,” Harvey Stringfellow, the company’s lawyer at Hill Dickinson LLP in Liverpool, said in a phone interview. “This was a case that generated a huge amount of interest within the independent sector for” information technology, he said.

M-Tech had argued that Sun can’t enforce its trademark because Sun is trying to divide the market in the 27-nation EU in violation of laws permitting free movement of goods. The case was filed as a trademark dispute because Sun has distribution rights to products that carry its logo.

Oracle, based in Redwood City, California, acquired Sun in January 2010, for $7.3 billion, and renamed the unit Oracle America Inc.

For more trademark news, click here.

Trade

House Democrats Say Pacific-Region Trade Talks Need Transparency

A majority of U.S. House Democrats said talks on a Pacific- region trade agreement the Obama administration is negotiating with eight other nations haven’t been sufficiently open to public and congressional scrutiny.

“We are troubled that important policy decisions are being made without full input from Congress,” lawmakers led by Representatives Rosa DeLauro of Connecticut and George Miller of California said in a letter yesterday to U.S. Trade Representative Ron Kirk.

The complaint, lodged by 132 of the 191 House Democrats, reiterates comments by senators including Ron Wyden of Oregon who have sought more transparency in discussions for the Trans- Pacific Partnership.

Negotiations resume next week in San Diego to create an agreement among the U.S., Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore and Vietnam. The accord would cover issues including small-business access to global markets, agriculture, intellectual-property rights and protections for companies that compete against state-owned enterprises.

Carol Guthrie, a spokeswoman for the U.S. Trade Representative’s office, said in an e-mail that she hadn’t yet seen the letter and didn’t have an immediate comment.

The partnership is one of Obama’s top trade priorities, and administration officials have said they are working expeditiously to conclude the talks.

Internet

Netflix Wants Help From U.S. as Cable’s Caps Threaten Growth

Netflix Inc., (NFLX:US) the provider of video by mail and over Internet connections, asked U.S. lawmakers to prevent cable providers from squelching its growth by imposing online-data consumption limits for customers.

Netflix, with 23.4 million subscribers, made its request at a hearing yesterday before the House communications and technology subcommittee in Washington.

“When you couple limited broadband competition with a strong desire to protect a legacy video distribution business, you have both the means and motivation to engage in anticompetitive behavior,” David Hyman, Netflix’s general counsel, testified.

The session was called to examine changes since the last broad revision to cable law in 1992, when few consumers used the Internet and cable companies controlled 98 percent of the pay- television market, according to a staff memo. The 1992 law set terms for broadcasters to demand payment from cable companies for their signals.

Since then, the U.S. television market has been reordered by the emergence of satellite providers Dish Network Corp. (DISH:US) and DirecTV (DTV:US) as competitors to cable, and an array of online video providers including Netflix and Google Inc.’s YouTube.

Netflix could face higher prices and lowered growth from limits on data consumption by providers of high-speed Internet service, or broadband, the Los Gatos, California-based company said in a filing.

For more, click here.

Enforcement

Federal Government Seeks Comments on IP Enforcement

The Federal government is developing a joint strategic plan on intellectual property enforcement, according to a notice in the Federal Register.

Through the office of the U.S. Intellectual Property Enforcement Coordinator, known as IPEC, the government is seeking public input in formulating its enforcement strategy.

The request for comments and recommendations is divided into three parts. The first seeks detailed recommendations from the public regarding specific ideas for improving intellectual property enforcement. It also seeks input on the existing and emerging threats to the protection of intellectual property rights, the identification of threats to public health and safety and the U.S. economy resulting from intellectual property infringement. Finally, IPEC seeks submissions to help develop specific action items.

Submissions must be received on or before July 25.

To read the announcement in the Federal Register, click here.

Law Firm Moves

Reed Smith Adds Music Lawyer in New York Office

Edward H. Shapiro has joined Reed Smith LLP as a partner in the firm’s New York office. He is a member of the firm’s music industry practice.

Shapiro had been in the New York office of Grubman Indursky Shire & Meiselas PC, an entertainment law firm. Previously, he had worked at record and electronic media companies.

Fish & Richardson Adds Counsel to its Washington Office

Anne M. Sterba has joined Fish & Richardson PC as of counsel in the firm’s trademark and copyright group. She will be based in Washington and will work on trademark prosecution and counseling, false advertising, unfair competition, copyright, licensing, and litigation matters.

Before joining Fish, Sterba was a member of the intellectual property firm Rothwell, Figg, Ernst, & Manbeck PC.

To contact the reporter on this story: Ellen Rosen in New York at erosen14@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.


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