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Open Source Yoga
March 21, 2005 9:04 AM   Subscribe

Copyright a yoga move? If yoga has been around for 5,000 years, can a 21st century businessman claim to own a piece of it? Bikram Choudhury says yes. The Beverly Hills yoga mogul, who popularized his style of yoga and then franchised a chain of studios bearing his name, has long rankled traditionalists, who dislike his tough business tactics and brash outspokenness. Now Choudhury is facing a challenge in a San Francisco courtroom, where a federal judge is hearing arguments in a lawsuit that some legal experts say could define a new frontier in intellectual property. At issue: Can Choudhury take a sequence of two breathing exercises and 26 yoga poses from an ancient Indian practice, copyright it and control how it is practiced? The Open Source Yoga Unity people say he can't. More inside.
posted by matteo (89 comments total) 3 users marked this as a favorite

 
The legal protection Bikram is allowed may depend on whether yoga is defined as an exercise regimen, a sport, a spiritual practice or a choreographed form of expression, like music or dance. The case, says UCLA law professor Neil Netanel, "really depends on an issue that isn't covered in the law: What is the nature of yoga?"
posted by matteo at 9:07 AM on March 21, 2005


Prior art?
posted by AlexReynolds at 9:08 AM on March 21, 2005


Aren't methods and procedures not copyrightable?
posted by odinsdream at 9:10 AM on March 21, 2005


Breathing ©

now...ya'll send me money!
posted by HuronBob at 9:19 AM on March 21, 2005


Alex: Prior art is a concept from patent law, not copyright. The amount of originality (usually called "creativity" in the copyright field) required for a copyright is very, very small.

A factual compilation (that is, a compilation of previously known facts) may be subject to copyright even where the amount of "original" material consists only of the choice of what material to include and exclude and how to organize it. As the Supreme Court wrote in the seminal decision on the issue:

"Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws."

Feist Publications, Inc. v. Rural Tel. Service C., 499 U.S. 340, 348 (1991)

In Feist, the Court held that merely including all of the names in the phonebook in alphabetical order was not quite creative enough to qualify for copyright protection, but pretty much any creative decision at all beyond that has been held to be sufficient.

The questions in the Yoga case will probably have to do with two other doctrines of copyright law called merger and scenes a faire. Copyright law, unlike patent law, protects a particular expression only, not the underlying idea. If there is only one "right" way to express a particular idea, that idea is said to have "merged" into the expression and is thus not protectible under copyright law. So, if we have a series of yoga positions and there is only one way to express them (if they are, fundamentally, utilitarian) there will be issues of merger or scenes a faire. If, on the other hand, yoga is more like dance (fundamentally creative and choreographed) then Choudhury may be able to protect his particular "choreography".

It will be a very interesting case to watch.
posted by The Bellman at 9:24 AM on March 21, 2005


This is an interesting topic to me, and I'm actually suprised it hasn't been covered here before. Alex, et al- the crux of the issue is that Choudhury claims that it's not the moves themselves, but their specific sequential rendition (developed recently), that is his intellectual property.
posted by mkultra at 9:29 AM on March 21, 2005


hmm wonder if I can copyright skipping?
posted by edgeways at 9:32 AM on March 21, 2005


If I change it a little
posted by edgeways at 9:32 AM on March 21, 2005


I've made my views on copyright law clear before, so I won't rant. Instead, can someone play devils advocate and explain to me why this application of law might benefit society?
posted by Popular Ethics at 9:32 AM on March 21, 2005


"......and I'm actually suprised it hasn't been covered here before"
Kinda has though, here in 2003 "Bikram Choudhury, yoga’s bad boy and proponent of the intense, sweaty version that bears his name, has copyrighted his famous sequences and is suing schools that teach them without his permission."
posted by dabitch at 9:34 AM on March 21, 2005


To the extent that he has a copyright many of these mom and pop shops that deviate substantially are probably not actually infringing the alleged copyright. However, because he has more resources he still wins. I like this strategy of the Open Source Yoga Unity people of attacking the underlying copyright. That might stop his attacks on the mom and pop shops. If they are not successful at eliminating copyright protection perhaps they can at least force this Bozo to define his copyrighted work narrowly enough to allow others to use variations of it.
posted by caddis at 9:52 AM on March 21, 2005


The twentieth century has seen the release of thousands and thousands of spiritual practices, many previously secret, involving movement, breathing, visualization, mantras, etc. (And yoga is a spiritual practice, not "choreography." Anybody been to a "yoga recital" recently?)

No spiritual practice is guaranteed to result in a peaceful and generous soul dedicated to making yoga and meditation more available to everyone for the betterment of the human race, though, as Bikram Choudbury makes clear.
posted by kozad at 9:52 AM on March 21, 2005


The irony of this is actually painful. This is so contrary to yoga philosophy that my head hurts. A lot of people said that about his high-temp version too though.
posted by Kimberly at 9:52 AM on March 21, 2005


Yeah, Bikram is a jackass, and a businessman, there is no denying that. But, the man did invent a sequence of asanas and breathing exercises that no one has ever done before, and has marketed the hell out of them - and if they're going to call it Bikram yoga, then he deserves his piece. Doing the same series of postures and calling it "Hot Yoga" as I have seen several studios around here do does seem like copyright infringement. Interesting case.

FWIW, I submit myself to the 105 degree 90 minute torture at least twice a week. It's helped me a lot, physically and mentally, and I would recommend it to anyone.
posted by salad spork at 9:56 AM on March 21, 2005


The benefit of copyright law lies in the incentive it gives to creators to create works and - particularly in Europe - to protect the creator from people messing around with his work. This is the benefit that copyright has for society. If there was no copyright, a lot less creative works (like books, music and movies, which can be copied easily and cheaply) would be available.

Of course, this does not mean that every application of copyrightlaws will benefit society. The particular implementation of the idea of copyright in a state may be flawed, which can yield sometimes perverse results. Laws can of course be amended, and copyrightlaws are being amended all the time (too bad that, in the USA and the EU, the latest changes particularly benefit vested interests - but that's another discussion).
posted by CKZ at 9:59 AM on March 21, 2005


This particular application may not benefit society directly - it doesn't have to either. It will be a benefit to society if a court finds that there is indeed a work that is protected by copyright and grants that protection despite the fact that it has widely been ignored.

[Somehow I don't think you'll be convinced by this. :) ]
posted by CKZ at 10:08 AM on March 21, 2005


*sigh*©
posted by weapons-grade pandemonium at 10:10 AM on March 21, 2005


This just makes me think about copyrighting various handshake sequences. I know you know what I'm talkin' about. (and I'm not talking about computer slang, yo.)
posted by mic stand at 10:19 AM on March 21, 2005


What a preposterous concept: you can actually copyright a dance? Or yoga moves? Give me a break. How long before any act of creation in America is impossible, as you'll be infringing someone's copyright?

The courts are just plain wrong on this.
posted by teece at 10:23 AM on March 21, 2005


No spiritual practice is guaranteed to result in a peaceful and generous soul dedicated to making yoga and meditation more available to everyone for the betterment of the human race, though, as Bikram Choudbury makes clear.

Yeah. This is a sad thing.
posted by Specklet at 10:29 AM on March 21, 2005


I'd suggest doing his moves daily or even teaching them informally to friends with the additional exercize and emotional release of stretching the muscles of your middle finger in his direction. The man's an asshole.
posted by Shane at 10:35 AM on March 21, 2005


Hmmm...I've surprised myself by being on Bikram's side on this. Teece, I think you've misunderstood what The Bellman was explaining (and thanks for the definition by the way, very interesting). The moves are not copyrightable. Teaching them in precisely the order he proscribes, under the conditions he invented, is and has been copyrighted. In the same way you can't copyright the Viennese waltz, but you could copyright a specific work of choreography that happens to incorporates a waltz.
posted by cali at 10:40 AM on March 21, 2005


That doesn't mean, however, that I approve of his subversion off the intention of yogic practice with his greed and selfishness.
posted by cali at 10:43 AM on March 21, 2005


Bad karma.
posted by asok at 10:49 AM on March 21, 2005


If there was no copyright, a lot less creative works (like books, music and movies, which can be copied easily and cheaply) would be available.

I challenge this assertion.
posted by odinsdream at 10:51 AM on March 21, 2005


I'd suggest doing his moves daily or even teaching them informally to friends with the additional exercize and emotional release of stretching the muscles of your middle finger in his direction. The man's an asshole.

Would copyrighting this (appropriate) addition constitute sufficient creativity (as defined by The Bellman) to usurp Bikram's supposed "ownership", I wonder?
posted by AlexReynolds at 10:52 AM on March 21, 2005


I guess my larger question is: what stops an "arms race" of adding new moves to a copyrighted body of work, then protecting it for yourself?
posted by AlexReynolds at 10:53 AM on March 21, 2005


Most generally, a double post (links are different, but concept identical.) The first post has the advantage of the splendid Bikram Choudhury quote: "I have balls like atom bombs, two of them, 100 megatons each. Nobody f*cks with me."
posted by izizi at 10:55 AM on March 21, 2005


Somehow I don't think you'll be convinced by this. :)
No, but I appreciate the effort. I don't think I buy anymore that without copyright there would be less creative work, in particular a lot less "choreography".

I suppose the case could be made that by successfully marketing a particular flavour of yoga, Bikram is advancing the country's economic growth. I don't buy that either, but I need something to resolve my laws-are-supposed-to-benefit-society dissonance.
posted by Popular Ethics at 10:55 AM on March 21, 2005


See also.
posted by gottabefunky at 11:00 AM on March 21, 2005


All of this discussion seems to be irrelevant given this snip from 17 U.S.C. 102(b).:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

So what if he discovered a new procedure or process of yoga, the concept of which is to be more efficient, healthy, whatever... it's still not protected by copyright.
posted by odinsdream at 11:02 AM on March 21, 2005


Cali: Exactly. Consider for example, teece, the choreography of Alvin Ailey's famous Revelations. This work is (arguably) as stunning, spectacular and creative as any painting, novel or musical composition you will ever encounter. It has been a signature work and staple of the Ailey company for over forty years and is performed hundreds of times a year by the various Ailey companies throughout the world. The Ailey companies "own" the choreography and have a right to make money from that ownership.

The idea that dance of this kind should not be protected by copyright is simply contrary to the basic ideas on which American intellectual property law is founded. If you disagree with those ideas and feel that all information ought to be free, then that is certainly a principled position that intelligent people can and do take (though it is contrary to the Constitutional guarantee of copyright protection). But if you feel that some kinds of work should be protected, and that such protection encourages creative expression, then there is no reason to exclude dance from the class of protected work.
posted by The Bellman at 11:05 AM on March 21, 2005


Bikram Douchebaggery ©
posted by schyler523 at 11:05 AM on March 21, 2005


sorry for the AskMeFi tone, but -- those of you who've tried Bikram's method, what do you think about it? I hear very different reports, some love it some are appalled by it.


links are different, but concept identical

no. two years ago, as shown above in dabitch's comment, we had gottabefunky's post that explained that Bikram had copyrighted his sequences and was suing "unathorized" schools.
Two years later, this post shows that Bikram is facing a legal challenge in Federal courtroom because the Open Source people are challenging him. quite different, of course.
posted by matteo at 11:07 AM on March 21, 2005


Groklaw is especially relevant today:

The origin of the doctrine is in a Supreme Court decision from the 1870s -- Baker v. Selden, 101 U.S. 99 (1879). In that case, an author published a book (called "Selden's Condensed Ledger, or Book-Keeping Simplified"), that described a particular method of accounting to be used in businesses. Some businesses implemented that particular approach to accounting, without purchasing copies of the book or paying royalties. Author sued for copyright infringement. Supreme Court rejected the claim, because the ideas embodied in the work were considered to be outside the scope of copyright. [PJ Editor note: The case is here. There is an article about this case on Groklaw, and one on "What Can't You Copyright?" that might be of interest.]
posted by odinsdream at 11:11 AM on March 21, 2005


Popular Ethics: If you want to see how this could be a benefit, just reverse the players. Suppose you've been practicing yoga for 20 years, studying and honing the poses until you have what you think is a great sequence. You open a small studio and start teaching your sequence - lets call it the "PE sequence" - to folks in your area for a nominal fee. You get some good word of mouth, and you find that you can actually make a living off this, and help some folks out to boot.

A few months down the line, Bikram sends one of his associates out to take a class at your studio. Said associate takes (mental) notes of the PE sequence, and returns to Bikram. Bikram sees that you have a good thing going, and decides to piggyback on your idea. He takes the same sequence, renames it the "Bikram sequence," and starts running ads about its benefits. Since he already has hundreds of studios and a huge marketing apparatus, his ads drown out the word of mouth for your measly little studio. In fact, a few months later, he opens up a glitzty new studio down the block from yours, complete with a huge marketing blitz and special introductory offers. And he offers classes for a bit less money than you do, since he's got economies of scale on his side. It doesn't take long for you to lose all your customers and have to close up shop.

Why? Because, without copyight, this asshole Bikram came along, took the idea that you had spent 20 years figuring out, and turned it into a profitable business - and you don't get a cent of those profits.

So the idea is that copyright law can in fact protect the little guy as well. Unfortunately, it can also be abused and wind up protecting big fish as well.

BTW, I think that Bikram is completely in the wrong on this issue, and I'm fairly anti-copyright in general. But you wanted a Devil's Advocate position.
posted by googly at 11:12 AM on March 21, 2005


What a preposterous concept: you can actually copyright a dance?

No you can't. You can't copyright a magic trick or a part of juggling trick either. A fact much abused by for example Le Cirque Soleil.

There is no way to copyright a coreography. This lawsuit is totally absurd.
posted by hoskala at 11:15 AM on March 21, 2005


Fun things I'd like to see Copyrighted:

Vulcan Death Grip
Karate Kid Crane Kick
The "L" Finger to Forehead Sign
The Million Dollar Dream
The Jean Claude Van Damme Side Split Kick
In Living Color's "Two Snaps in a Z Formation"
posted by Stan Chin at 11:17 AM on March 21, 2005


The reach of Baker v. Selden has been diminished due to the use of copyright to protect software. I wonder whether it has enough juice left to stop Bikram?
posted by caddis at 11:18 AM on March 21, 2005


Odinsdream (and Alex): This is exactly the point I was making in my first post -- it is called the "idea/expression dichotomy" and it is the fundamental difference between the short-term protection of patents and the much longer-term protection of copyrights. Section 102(b) is designed to make absolutely sure that people don't abuse the copyright process to try to get a very long term patent. So the point of that section is that the work may be subject to copyright, but the idea "described, explained, illustrated, or embodied in such work" is not.


I haven't read any opinions in the Yoga case, so I am speaking generally here, but in general the point is that you can teach the various moves and breathing techniques that have been around forever. In fact, even if Choudhury had invented a brand new technique, you would be permitted to teach that technique (assuming he had no patent in it). What you would NOT be permitted to do is use his teaching materials, his particular routines (does yoga have routines?) or his particular "selection and arrangement" of positions and breathing techniques in the combinations he created.

To answer Alex's question directly, if you wanted to modify his compilation enough to make it a new work (and thereby avoid infringement) you would have to add sufficient new material (or subtract or rearrange enough) to make the work independently copyrightable. if you add only elements that are themselves copyrightable, but do not create a newly copyrightable work, you have created a derivative work and that constitutes infringement. Thus, assuming the "Flying Bird" is a copyrightable piece of choreography, simply adding it to the existing routine won't do it. You'd have to mix things up a bit.
posted by The Bellman at 11:20 AM on March 21, 2005


This is what the Economist said about the case last summer:

"His problem now becomes one of legal logic. If Bikram Yoga is indeed, for legal purposes, akin to “Swan Lake”, Bikram might actually have a case. But Bikram himself does not claim that his classes are performances with inherent artistic or expressive value; instead, he boasts that their purpose is health. In legal jargon, that may make Bikram Yoga a “functional” process, which is an area covered by patent law, not copyright. Bikram has no patents and, even allowing for the eccentricities of America's Patent Office, no hope of getting any.

...Intellectual-property law is crucial to economic success. But extending it to yoga will—The Economist's spiritually enlightened, physically limber journalists hope—prove too much of a stretch."
posted by Panfilo at 11:21 AM on March 21, 2005


17 U.S.C. sect. 102(a)(4) specifically provides copyright protection to pantomime and choreographic works.
posted by caddis at 11:22 AM on March 21, 2005


Just to clear things up for the non-lawyers, if you pick a bunch of short stories and put them together in a compilation (with the permission of the authors), that compilation is most likely copyright-able. In other words, the choice of stories and order you put them in itself can be copyrighted.

So in this case he is choosing among many possible sequences of positions (which themselves are not copyrighted, but that changes nothing) and picking one. That compilation is most likely copyright-able and this dude will win, despite the fact that we all hate him very much, and despite the fact that he claims to have "cured former President Richard Nixon of phlebitis".
posted by Outlawyr at 11:25 AM on March 21, 2005


I believe that Economist article pretty much defines the crux of the argument. While a compilation may be copyrightable, Bikram claims that the compilation is functional which dramatically hurts his chances of establishing that this compilation should fit within the pantomime, choreography definition. If it doesn't fit there, no copyright.
posted by caddis at 11:30 AM on March 21, 2005


Most generally, a double post (links are different, but concept identical.)

I think you mean a reincarnated post.
posted by AlexReynolds at 11:32 AM on March 21, 2005


If copyright is granted to Bikram, the Open Source Yoga Unity group ought to create a series (or a number of series) that is similar but substantially different in arrangement and selection that it would be copyrightable in and of itself, register its copyright, and make it free via a traditional open license. This would give the small shops a viable free alternative. Heck, they're called Open Source Yoga Unity.
posted by graymouser at 11:44 AM on March 21, 2005


Check this description of the January hearing from the first link:

As the lawyers for both sides argued their cases, [Judge Phyllis] Hamilton struggled with Indian names and yogic concepts, and with what exactly was at stake. "This is a very unusual case," Hamilton began. "I don't even know what is being sought. Am I pronouncing this correctly? Bikram?"

Hoo-kay, Judge. Way to establish your credibility right at the start.
posted by mediareport at 12:19 PM on March 21, 2005


Bikrams main consumers(in my neighborhood near Beverly Hills) are the brainwashed social leeches that are into this because its the hip hot thing(similar to post-Madonna Kaballah)...i expect this(and Bikram hopefully) go the way of the Dodo, but then you look at scientology and wonder.

Full disclosure: I've steered clear of Yoga since i passed out momentarily while in a "jackknife" position(head hanging down by my knees.) Apparently, i went from that bent over position to doing a forward flip and sliding across the room. I woke up with many worried faces hovering around me...
posted by schyler523 at 12:20 PM on March 21, 2005


This guy is still alive?! I'm not only showing my age here, but also my innate geekiness...back in the Summer of '77, I remember watching an episode of "The Dinah Shore Show" because the Bay City Rollers were going to be on. (Long before the days of VCRs, but I made an audio tape of the thing.) Anyway, among the other guests were Yogi Bikram and Juliet Prowse, who was a student of his. He looked to be about 112 years old then, 30-some years ago. If he wasn't that old, then that's not much of a statement of the benefits of his brand of yoga.
posted by Oriole Adams at 12:22 PM on March 21, 2005


I think you mean a reincarnated post.

Hahaha! Yep, reincarnated and three ways of saying it in this thread. #1, then #2, finally #3.
posted by dabitch at 12:27 PM on March 21, 2005


You want hot yoga domains? We've got hot yoga domains!
posted by AlexReynolds at 12:27 PM on March 21, 2005


I obtained copyright on a sexual manuever. I'm pretty liberal with it, but if you perform a "Boston Terrier" on anyone, please acknowledge to your partner and to spectators (if applicable) that the move was invented by Mayor Curley. If you use it a lot, consider sending me five or 10 dollars.
posted by Mayor Curley at 1:10 PM on March 21, 2005


man on dog, Mayor?
posted by matteo at 1:23 PM on March 21, 2005


RantFilter: As a 30 year Yoga Practitioner this makes me ill, in fact the way yoga has been handled in the west has been fairly shoddy at best it took almost 3 years at beginners level for my teacher to give us even a light advanced practice thus avoiding the injuries that do happen at even the best or rather biggest centers here in NYC not to mention the bizarre ego inflation that runs rampant in many centers there was a point back in the late 90's that if i heard one more person who took Yoga classes describe/introduce themselves as a Yogi or Yogini I was gonna barf....
Our teacher also made it really clear that we were never to attempt to teach anyone for any reason what we learned or to "sell" his services for him . He never took a dime from us except for the rental of the room which in 1978 was like a buck a person and went to the about $10 last year
Why the heck didn't Bikram just copyright or trademark the name and leave it at that seems far reaching and humorous even that anyone could own yoga as the eminent Yogi Elvis Presleyji sang "Yoga is as Yoga does"
posted by RecordBrother at 1:25 PM on March 21, 2005


CKZ: If there was no copyright, a lot less creative works (like books, music and movies, which can be copied easily and cheaply) would be available.

Odinsdream: I challenge this assertion.

CKZ is right. It is only because of copyright that musicians, writers, etc. are able to make a living doing art. Without such, fewer works would be made as their creators would only be doing such work as an avocation. I suspect the quality would be worse too.

I never fail to be astounded at how people's desire to get things for free obscures to them that they are essentially arguing that people do not deserve to make a living from their successful works.* Yes, Bikram's being a big jerk. But this is a case where you have to let the asshole win in order to keep the mostly helpful principle around.

* I fully accept that some big, stupid fish have galvanized opinion against copyright by being greedy bastards. They suck. But think about your favorite indie cartoonist, mid-list author, or moderately successful band--without copyright you would get less of what you enjoy from them.
posted by dame at 1:34 PM on March 21, 2005


I don't think you need to let this one win to keep the mostly helpful principle around. Copyright applies only to a narrow range of works and yoga moves and sequences thereof probably do not fit into one of the delineated categories of copyrightable material. The pantomime and choreographic works category is the closest. Having yoga fall outside of this category I think would be a good result in the litigation.
posted by caddis at 1:40 PM on March 21, 2005


dame, can you remember a time when people gave up creating things because it wasn't possible to make money off them?

Yeah, me neither. Some of the most famous creative works of our time, like Common Sense: Written By An Englishman, were in part wildly successful because of how easy it was to copy and distribute them without legal restrictions.

Paint me as a pirate if you will, but that's not at all what this is about. Copyright law exists because of creativity, not the other way around. Creativity is never going to go away.
posted by odinsdream at 1:42 PM on March 21, 2005


That's right dame because before the Licensing Act of 1662, there was no art or literature or music or anything creative at all in the world. It's only that arbitrary, monopolistic grant of the state that induces people to create or share their creations. Without that, we'd all be dead inside and the world would be a bleak and colorless place indeed.

Note, I would never argue that people don't deserve to make a living. I would argue that copyright isn't the only or even the best way that they can make a living, and the fact of copyright probably results in more bad art than the absence of it would result in a reduction of good art.
posted by willnot at 1:56 PM on March 21, 2005


I think it's ok for him to copyright the order of the 26 postures. If someone is doing that same order in a 100 degree room, they are copying him and he should get a kickback IMHO.
posted by alfredogarcia at 2:09 PM on March 21, 2005


Damn, I lost my response. To try again:

I'm not saying that no one would make art without copyright, odinsdream; I'm saying that there would be less. There are a finite number of hours in the day, and time spent putting food in one's mouth is time not spent making shit. And good shit takes time. I think that there is a benefit to me when people who make good shit get to spend their time doing so instead of doing work that does not take advantage of their talents.

Do you know artists/writers/musicians who are trying to make it and hold down another job at the same time? Do you see what they sacrifice for that? I'd like to think that it's possible to make good art and a good living and have a life at the same time once one reaches a certain level of proficiency and popularity. There are cases in which making something widely available is preferable to getting paid for each instance, but that's the artist's decision to make, not yours.

And willnot, how do you suggest one make a living from one's art without copyright? Before 1662, if I recall, most people who had creation as a vocation were independently wealthy or the beneficiaries of patronage. I'd rather not leave all funding of art (and ths questions of taste) up to rich people.

Also, can you explain how copyright makes for more bad art?

Finally, I'd like to note that I'm not in favor of massive copyright extensions or people being utter cockwads. I just don't think those make copyright inherently bad.
posted by dame at 2:11 PM on March 21, 2005


Is he suddenly not making any money at all because other people teach the technique he developed? Or is it that he wants to have all of the money that derives from it?

A lot of the arguments for strong copyright come down to an assertion that the author of something, and the publishers and so on who act as the author's agents, ought to get all of the money that derives from a creative act. This was always bad economics, because monopolies of any kind are bad economics. Monopolies are bad because (1) they jack prices up, which creates inflation, and (2) if a monopoly stops producing a product for whatever reason, it disappears from the market, and thus further uses for it cannot be developed.

I am very much in favor of Lawrence Lessig's plan of registered copyrights and nominal copyright renewal fees, and a compulsory licensing system. If nobody cares enough to renew a copyright, it should lapse. If a work is not being produced for profit by its license holder, they should not be able to prevent another publisher, who is willing to pay the license fee, from publishing it (for example, as with the unreleased Fiona Apple album).
posted by aeschenkarnos at 2:14 PM on March 21, 2005


That's right dame because before the Licensing Act of 1662, there was no art or literature or music or anything creative at all in the world.

In those days, most works of art were available only to a select few and could not be copied easily. Copyright laws were introduced first with regard to books, because the printing press made it easy to copy books relatively cheaply.

On preview: what dame said.
posted by CKZ at 2:18 PM on March 21, 2005


odinsdream, willnot:
No one, especially dame, was arguing that without copyrights creativity would die. That's absurd and you know it. Yes, people made things before our laws existed, but the laws exist to foster the process. There will always be those who are willing to suffer anything and labor in obscurity to make art for art's sake, but I'm guessing the vast majority would not. People form bands/write books/paint/etc for fame, money, sex, or whatever, and this encourages their creativity because it creates a framework that allows them to reap more benefit from their work than they might otherwise have gotten.

willnot said, "the fact of copyright probably results in more bad art than the absence of it would result in a reduction of good art."
This is an argument for copyright, not against it. The fact that there is more bad stuff than good is a good thing. Copyright allows and encourages more people to try and make things, and of course there will be lots and lots of bad stuff, but there will also be more good stuff because more people want to do it.
posted by Sangermaine at 2:34 PM on March 21, 2005


Thanks for the clarifications, all. I think I see the distinction: if it is "useless" to abuse the term, eg purely artistic expression like a certain performed dance, he may be ably to copyright it. But as he seems to be claiming it is an exercise tool, he can't.

dame: some take the extreme position you describe, but most anti-copyright folks don't, at least the ones I have met. The people that rail against copyright often just feel the pendulum has swung (way) too far towards the copyright holder, and not societal benefit. Lumping everyone that dislikes the current state of copyright as copyright abolitionists hell-bent on getting everything for free is an extreme straw man.

It is important to remember why copyright and patents exist: to maximize benefit to society. They don't exist, nor should they exist, to maximize benefit to individuals.

Two things are troubling here: we do almost nothing to actually find, empirically (rather than, gee, I think ...) that our system is actually doing what it is supposed to do. Second, very, very much of the greatest art is a result of copying and imitation that, every year, it gets harder to do, with copyright holders buying yet another law to protect that which they have created or that which (in many cases) they have rightfully stolen. (*Ahem*, Disney; *ahem* Microsoft).
posted by teece at 2:36 PM on March 21, 2005


There will always, in any creative endeavour, be more bad stuff than good. It's the 80/20 rule. The problem with copyright law as it stands is that stuff, good or bad, can't be propogated as-is or used in derivative works without the permission of the copyright holder, and there is no mechanism for extracting permission out of a copyright holder who is simply sitting on the copyright and not producing the work. Worse, there is no mechanism for default-licensing works where a copyright holding person has died or, more commonly, a copyright holding corporation has been disbanded. These are known as orphan copyrights, and they are a huge problem with "leaving things as they are", which will continue to grow.
posted by aeschenkarnos at 2:43 PM on March 21, 2005


The people that rail against copyright often just feel the pendulum has swung (way) too far towards the copyright holder, and not societal benefit. Lumping everyone that dislikes the current state of copyright as copyright abolitionists hell-bent on getting everything for free is an extreme straw man.

That's a fair point, teece, but it is the railing against copyright as opposed to poor application of copyright that makes that image. In this way, people are being their own worst enemies.

Also individual benefit and societal benefit are not always opposed. I don't think they are in the question of copyright. Corporate benefit and societal benefit, sure, but many many people who benefit from copyright are not the corporations who get the attention.
posted by dame at 2:50 PM on March 21, 2005


It is only because of copyright that musicians, writers, etc. are able to make a living doing art.

That's arguable, but the point is irrelevant. As teece noted, most U.S. copyright skeptics aren't trying to eliminate the concept. They're trying to bring it back into line with the limited scope it was given by the country's founders. From Creative Commons' Founders' copyright page:

The Framers of the U.S. Constitution understood that copyright was about balance — a trade-off between public and private gain, society-wide innovation and creative reward. In 1790, the U.S.'s first copyright law granted authors a monopoly right over their creations for 14 years, with the option of renewing that monopoly for another 14. We want to help restore that sense of balance...

It's the extension of that 14 years to ridiculous lengths, including long after the artist's death, that's the heart of the copyright problem for most folks. Arguing against the elimination of all copyright protection is a straw man.
posted by mediareport at 2:50 PM on March 21, 2005


At first glance, I was in pretty strong disagreement with willnot, in that bad art can be ignored, so something that reduces bad art a lot and good art a little is something that, effectively for me, just means reducing good art a little.

However, on further reflection: the amount of good art obtainable by any person would become wildly, massively greater than it is now. I could have every single good song ever made in my collection, not just a selection based on how much I'm willing to spend on CDs. I could have art books up the wazoo. If there were any art I liked, I could have it (or a good copy of it) without worry. That would be pretty neat.

So, no, I don't think it's at all realistic, but it sure isn't as bad as I was thinking at first.
posted by Bugbread at 2:55 PM on March 21, 2005


It's so typical that EXTREME yoga would be popular in America. It's antithetical to what yoga is really about: balance in all areas of life. Anyway, where did Bikram learn the original poses? Shouldn't he give some of his money to the descendants of his teachers, oh say, 7 generations back?
posted by blissing at 3:08 PM on March 21, 2005


That's a fair point, teece, but it is the railing against copyright as opposed to poor application of copyright that makes that image. In this way, people are being their own worst enemies.

Ah, you are certainly right there, dame. I need to send out a memo — only use the phrase "copyright reform." ;-)

Also individual benefit and societal benefit are not always opposed. I don't think they are in the question of copyright. Corporate benefit and societal benefit, sure, but many many people who benefit from copyright are not the corporations who get the attention.

I would certainly agree that individual and societal benefit can overlap, and hopefully will. But we seem to moving so far toward benefitting the copyright holder, that we are coming close to killing off the public domain. And public, free works are just as valuable to society as the copyrighted, for-fee ones. And then there are copyrights granted for some things (like software), for which copyright is a bad fit, and which (I think) need there own, separate legal protection completely different from copyright law. And don't even get me started on the anticompetitive morass that has become the USPTO...
posted by teece at 3:12 PM on March 21, 2005


Caddis, you state "Bikram claims that the compilation is functional which dramatically hurts his chances of establishing that this compilation should fit within the pantomime, choreography definition." I doubt this will be his position at trial. At trial the argument will be, this is just like choreography, a defined set of moves to be performed in a set sequence. I think this is a winning argument. Just because it is ALSO functional does not harm the claim. This particular sequence, among the many (functional) sequences is his and his alone.

My bet is on the jackass winning.
posted by Outlawyr at 3:22 PM on March 21, 2005


Jerry: I can't believe it. He stole my move.
posted by mr.marx at 3:25 PM on March 21, 2005


But we seem to moving so far toward benefitting the copyright holder, that we are coming close to killing off the public domain. And public, free works are just as valuable to society as the copyrighted, for-fee ones.

You won't get any argument from me on that one. In the case of books, which I know best, the fairest situation seems to be to let copyright be life + twenty if the book is still in print, as someone's oeuvre is essentially her pension and because backlists are what keep small publishers in business. If a book isn't in print at whatever time, the original publisher should have the first option to bring it out, but the rights should then revert back to the author or her estate. And of course authors should have the right to release anything into public domain whenever they choose, assuming the book is out of print and the publisher refuses to bring it back out.

Anyway, *kisses teece for being a nice man to argue with*.
posted by dame at 3:34 PM on March 21, 2005


This case is different from the usual, mainly in that lawsuits are osually over someone creating a knockoff of your product, naming it deceptively, and marketing it. If he was suing people who were calling their own creations Bikram, it would be one thing, but he's suing people who have paid his fees, liensed his name, but not adhering exactly to his system. It's a braning thing: If you do his asana, in his environment, Using his name, you should pay him. But, how much flexibility do you have to hold classes incorporating whetever, if you don't use his name?
posted by Mr. Gunn at 3:34 PM on March 21, 2005


Outlawyer, that is the beauty of the adversary system. That may very well be Bikram's position, but then Open Source Yoga Unity will be presenting his prior statements regarding the functional benefit of this precise series of yoga positions. I am not so sure they will win, what with how we have diminished the functionality principle through a zeal to find some sort of protection for computer code. Nevertheless, I am putting my money on Open Source Yoga Unity.
posted by caddis at 3:36 PM on March 21, 2005


There goes a man who doesn't care about his karmic destiny.
posted by i_cola at 3:50 PM on March 21, 2005


For what it's worth, I'm fully behind the idea of the Founder's Copyright. This seems entirely reasonable to me. I am not for the Death of Copyright altogether. I am for the reasonable protection of creative works that leads to the maximum benefit for society. Mindless extensions (i.e., "mickey mouse" extensions) of a copyright are not in line with the maximum benefit to society. At least with the Founder's Copyright, if something goes wrong, it's fixed in 14 or 28 years.

Nothing is created in a vaccum. If you want to make a living off your work, it's my opinion you should expect to continue making creative works as long as you want, but you shouldn't be allowed to live off the first three hits for the rest of your life, then have the rights move to your children, who live off them for the rest of their lives, or until Disney stops buying laws, whichever comes first.
posted by odinsdream at 6:38 PM on March 21, 2005


I suspect the Bikram technique is a specific sequence of moves. I believe the sequence can be copyrighted, though the moves themselves can not be copyrighted. Seems fair to me that he retains licensing control over the sequence. Seems fair to me that anyone else can crank the heat and put together their own sequence, even if it does use some of the moves used in Bikram's sequence.

OTOH, I really don't care.
posted by five fresh fish at 6:47 PM on March 21, 2005


And willnot, how do you suggest one make a living from one's art without copyright?

Well, how to you suppose that people are able to sell water for more than the cost of gas when water is practically free out of just about any tap?

But, not to answer a question with a question, there's work for hire, there's patronage, there's spec/tips, there's holding future creation hostage to getting paid for present works, there's live performance, there's convenience and ease in finding good works. There's selling your stuff just like everybody else and relying on guaranteed quality as it comes from the source, or increased speed to market or the fact that people would rather buy from the creator or any number of other ways that you can provide a product that people will want to buy.

There's all kinds of ways. Due to a quirk of our laws and a chokehold on distribution, there's also artificial scarcity. Artificial scarcity isn't good for society. It breaks markets. It leads to consolidation and lowest common denominators.
posted by willnot at 7:22 PM on March 21, 2005


Ah, I see the problem we're having, willnot. You actually believe unadulterated capitalism is a useful system. We're not gonna agree.

Odinsdream, I don't think twenty-eight years is really long enough for some things, not if people who create are going to give up so much in the first place. I mean, if the public wants to subsidize artists and then pull copyright in twenty-eight years, fine; but there are people who give their whole youths up to work; they deserve to benefit from that for their lives.
posted by dame at 7:55 PM on March 21, 2005


I don't think twenty-eight years is really long enough for some things

Well, thank goodness the founders' committment to the public domain was stronger than yours.
posted by mediareport at 8:52 PM on March 21, 2005


dame : " Odinsdream, I don't think twenty-eight years is really long enough for some things"

But I think the gains from changing copyright to 28 years would far outweigh those losses.
posted by Bugbread at 3:21 AM on March 22, 2005


Again, of course it's an opinion, and mine is: If I make something creative that people want to pay me for, I'm okay with spending the next twenty-eight years of my life making at least one other creative thing that people want to pay for. That way, when the first thing expires, I can live off the second thing.

Your opinion is, 28 years is too short. That's fine. Mine is... it's just right (if not too long).
posted by odinsdream at 10:18 AM on March 22, 2005


Yeah, we're just gonna disagree on this. I do find it odd that creative property is the only property that people think should be wholly removed from someone when they are still alive. I don't see calls to put land or other tangible belongings that can't be shared for a minimal fee in a big pot every twenty-eight years. But then again, I hope to actually make some living from copyrighted materials and I already do so indirectly, as I work for a little publisher. The fight is kind of personal.

Thanks for being a good arguer.
posted by dame at 10:28 AM on March 22, 2005


Dame's land analogy got me thinking. Right now we allow people to stake out the public domain at no cost; why don't we just just tax IP like we already tax real property.

Tax it at a minimal rate for the first forteen years (you could call this tax a "filing fee") and then charge the original fee every year after that + a percentage of the gross take on the IP. Start at 5% and make the percentage grow each year by 1% for original authors (note not a corporation) and 5% for others. Or maybe just double the filing fee every year. Things would hit the public domain as soon as they stopped making more than the filing fee or if the corporation went out of business. Corporations could pay how ever many years they wanted in advance to ensure they didn't accidently forget to renew.

Use the fees to give artists stipends. It's a big old win-win-win. Artists who haven't hit it big are funded a bit, corporations can keep making money on a property as long as they like (or can sit on stuff they find embarassing), and the taps to the public domain would still be turned on.
posted by Mitheral at 12:24 PM on March 22, 2005


We shall see caddis. I hope you're right.
posted by Outlawyr at 2:29 PM on March 22, 2005


Yoga, from sanskrit, means "to copyright", "to get rich by creating whatever you think it's your creation". The word was originally intended to mean "the union with the money", "to unite with those who claim absurdities".

No, seriously. I hope the Open Source team wins BIG! For God's sake (literally).
posted by nandop at 3:16 PM on March 22, 2005


I don't see calls to put land or other tangible belongings that can't be shared for a minimal fee in a big pot every twenty-eight years.

The fundamental difference, of course, is that tangible property does not build on itself. It's safe to say that creative works are not created in a vaccum. All art builds on other works. If it were not allowed to do so, art would be increasingly illegal as slices of the public domain are eroded. Copyright seeks a balance between benefits for the creator and benefits to society. It was never intended to give creators a monopoly on their works, since the work itself is only a piece of human history, built on the work of others.

If the public domain is slowly starved, people will not stop creating things, but the act of creation will become increasingly illegal. This is why the time limit exists. As to what it should be, sure, we could argue about that, but I'd hope we can agree that creativity is not something each of us invents wholesale, but rather that each of our ideas are part of a range of human experience, built on the work of those that came before us.
posted by odinsdream at 6:48 PM on March 22, 2005


I'm going to copyright my DNA, and everyone whose genetic material comes close will be forced to pay me tribute.

Heh heh.

Heh.
posted by troutfishing at 9:44 PM on March 23, 2005


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