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In what is shaping up to be one of the most important software copyright cases of 2018, the Bikram Yoga case, decided by the Ninth Circuit in 2015, may prove to be pivotal in the battle between Cisco and Arista.
The fight between Cisco and Arista is over code that Cisco alleges to have created and thus believes deserves copyright protection. However, Arista and several amici contend that the sections of code Cisco seeks to protect are not creative or unique enough to merit copyright protection. A jury also ruled against Cisco on the same issue. Interestingly, how Bikram Yoga fits into this all is a little less curious than it all sounds.
In the Bikram Yoga case, the creator sued another party for allegedly infringing upon the Bikram Yoga copyright, which he claimed included the yoga method's process. The Ninth Circuit found that the yoga method includes breathing exercises and yoga poses that were not unique, nor could the sequential order of the poses be copyrighted as a process either. While a book containing the process can be copyrighted, the Ninth Circuit explained that the process itself cannot be copyrighted.
Cisco's opponents believe that the Bikram Yoga matter parallels their case as the code in question is basically a sequence of commonly used commands. In short, those commonly used commands are like the yoga poses, and the sequence is akin to Bikram Yoga's sequence of poses or process, which cannot merit copyright protection. If the Federal Circuit Court of Appeals sides with Arista, it will mean that Cisco's end product using the code can be protected, but the pieces of code used to get there can't.
This case is on appeal to the Federal Circuit after a California jury ruled in favor of Arista, finding that no copyright infringement occurred. The jury concluded that the code Cisco sought to protect fell under the scènes à faire doctrine, which holds that some aspects of creative works are too typical to be protected.
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