Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 154

Letter/request (non-motion) from Harvard Regarding Discovery of SFFA. (Attachments: # 1 Exhibit Yoga Source v. Choudhury, # 2 Exhibit SFFA Articles of Incorporation and Bylaws)(Ellsworth, Felicia)

EXHIBIT A

Case 4:03-cv-03182-PJH Document 41 Filed 04/19/04 Page 1 of 13

1
NOT FOR CITATION
2
UNITED STATES DISTRICT COURT
3
NORTHERN DISTRICT OF CALIFORNIA
4
5
6
OPEN SOURCE YOGA UNITY,
7
Plaintiff,

No. C 03-3182 PJH

v.

ORDER DENYING DEFENDANT’S
MOTION FOR JUDGEMENT ON THE
PLEADINGS, OR IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT OR
ADJUDICATION RE STANDING

8
9

11
BIKRAM CHOUDHURY,
For the Northern District of California

United States District Court

10

12
13
14

Defendant.
_______________________________/
On April 14, 2004, a hearing was held on the motion of defendant Bikram Choudhury

15

(“Choudhury”) for judgment on the pleadings, or in the alternative, for summary judgment or

16

adjudication regarding standing and other jurisdictional issues. Plaintiff Open Source Yoga

17

Unity (“OSYU”) appeared through its counsel Elizabeth Rader, and Choudhury appeared

18

through his counsel Robert Ungar. Having read the papers and carefully considered the

19

relevant legal authority and oral argument, the court hereby rules as follows.

20
21

BACKGROUND
Choudhury has compiled a yoga routine known as “Bikram’s Basic Yoga System,” or

22

“Bikram Yoga,” one of the more popular forms of hot yoga. Bikram Yoga is a combination of a

23

specific sequence of yoga postures, breathing exercises, temperature and a dialogue

24

compiled by Choudhury. Choudhury holds various copyrights and trademarks related to

25

Bikram Yoga, and has licensed many of his former students to teach Bikram Yoga.

26

Some yoga instructors have varied the Bikram Yoga routine. Consequently, in 2002

27

Choudhury began to send cease and desist letters to yoga instructors, demanding they stop

28

exploiting his copyrighted and trademarked intellectual property. On February 5, 2003,

Case 4:03-cv-03182-PJH Document 41 Filed 04/19/04 Page 2 of 13

1

Choudhury posted text on his corporate website that announced the registration of his Bikram

2

Yoga copyright and detailed the legal consequences for those who might violate his copyright.

3

In summer of 2002, Vanessa Calder (“Calder”), started an informal group called Hot

4

Yoga Alliance (“HYA”) to communicate with like minded people and build a mailing list. On

5

February 24, 2003, OSYU was incorporated as a California nonprofit Mutual Benefit

6

Corporation, and on March 21, 2003, Calder sent an email to the HYA email list announcing

7

the formation of OSYU. This email explained the purpose of OSYU and invited recipients to

8

join in an open conference call, which was held on March 25, 2003. In sum, the email

9

explained that OSYU was created to help enlist “the courts” in protecting “our” rights to
practice and teach yoga in a “free marketplace.” The email continued, “we will seek to . . .

11
For the Northern District of California

United States District Court

10

define what, if any, rights or exclusivity . . . Choudhury may assert or enforce regarding Bikram

12

Yoga, Hot Yoga,” or any other yoga.

13

Beginning in late March 2003, OSYU began to hold “strategy conference calls” about

14

once a month. Participating in these calls were Calder; the McCauleys, Calder’s parents and

15

owners of yoga studios, who had received a cease and desist letter from Choudhury; Jimmy

16

Barkan (“Barkan”); Kimberly Clark (“Clark”); Brandon Hartsell (“Hartsell”) and “several other”

17

yoga studio owners.

18

On or about April 6, 2003, OSYU sent out a mailing to approximately 200 yoga

19

teachers and studios. The recipients included HYA mailing list members and other yoga

20

studios specifically targeted by Calder. The mailing included a formal letter from OSYU’s

21

attorney and incorporator, James Harrison (“Harrison”), describing OSYU and its purpose.

22

The letter re-stated the purposes of OSYU spelled out in Calder’s Mach 21 email, and stated

23

specifically that “OSYU was formed to provide a common voice, and the pooling of resources,

24

to oppose the litigious position . . . Choudhury is taking against the Yoga community.” The

25

letter listed OSYU’s postal and web address. Included in the mailing was a flyer “welcoming”

26

OSYU.

27

On April 8, 2003, Calder sent an email to the HYA email list announcing the launch of

28
2

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OSYU’s website. This email also encouraged recipients to support “our community” by

2

donating to the OSYU legal fund. Finally, the email encouraged recipients to “spread the

3

word” about OSYU. A second email from Calder on April 8, 2003, informed the HYA email list

4

that they had been transferred to the OSYU mailing list.

5

On June 13, 2003, Choudhury settled pending litigation with the Morrisons, yoga studio

6

owners who had received one of Choudhury’s cease and desist letters. Choudhury’s website

7

advertised the settlement as a significant legal victory and espoused that the “imposters” who

8

exploit Bikram Yoga “must and will be stopped.” In response, OSYU held a June meeting

9

where it was decided that OSYU would file the current declaratory relief action.
This action was filed on July 9, 2003. Prior to that date, OSYU had the following

11
For the Northern District of California

United States District Court

10

characteristics. In declarations and affidavits filed in support of OSYU, no less than eight

12

individuals, including Calder, McCauley, Barkan, Hartsell, Clark, Erin Thibeault, Darla Magee

13

and Ted Grand, claim to be members of OSYU since before July 9, 2003.1 Prior to that date,

14

OSYU also had received donations from 16 different individuals and organizations, ranging in

15

value from $15.00 to $1,125.00. In addition to the purposes of OSYU as explained in its April

16

mailing, OSYU’s specific legal purpose, stated in its Articles of Incorporation, was to

17

“communicate, and defend in any legal way possible, the idea that no form or style of Yoga is

18

proprietary as it can not be owned, transferred, franchised, trademarked or copyrighted.”

19

OSYU’s first and only director, Calder, was appointed/elected to the board of directors

20

by OSYU’s incorporator on the following day, July 10, 2003. On July 11, 2003 OSYU filed a

21

Statement of Information for a Domestic Nonprofit Corporation with the California Secretary of

22

State, listing Calder as the CEO and Secretary of OSYU and Harrison as CFO and Agent for

23

Service of Process. OSYU amended its Articles of Incorporation on July 15, 2003, changing

24

its corporate form to a non-profit Public Benefit Corporation. OSYU adopted its first set of

25

Bylaws on July 29, 2003. On December 18, 2003, William McCauley replaced Harrison as

26

CFO.

27
1

28

Choudhury’s objections to these affidavits are overruled.
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ANALYSIS

2

Choudhury moves for judgment on the pleadings or for summary judgment, alleging that

3

OSYU lacks associational standing because of the inadequacy of OSYU’s purported

4

membership, and because the current action is not germane to the purposes of OSYU. Even if

5

OSYU has standing, Choudhury argues that OSYU’s declaratory relief action should be

6

dismissed because i) OSYU members have unclean hands, ii) judgment in this action would

7

not forestall duplicitous litigation, iii) the nature of relief sought by OSYU is inequitable to

8

Choudhury, iv) OSYU has failed to join necessary and/or indispensable parties, and v) the

9

affirmative claim of copyright misuse is not cognizable.2
A.

General Legal Standard

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For the Northern District of California

United States District Court

10

Article III of the Constitution limits the jurisdiction of federal courts to “cases” and

12

“controversies.” Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993). Standing is an essential

13

component of the case or controversy requirement. Lujan v. Defenders of Wildlife, 504 U.S.

14

555, 560 (1992). OSYU bears the burden of alleging facts demonstrating that it is a “proper

15

party to invoke judicial resolution of the dispute.” U.S. v. Hays, 515 U.S. 737, 743 (1995).

16

Thus, OSYU must demonstrate the constitutional minimum of Article III standing. Because

17

OSYU seeks declaratory and injunctive relief only, it must show a “very significant possibility of

18

future harm.” Id.

19

An association has standing to bring suit on behalf of its members when: i) its

20

members would otherwise have standing to sue in their own right,3 ii) the interests it seeks to

21

protect are germane to the organization’s purpose, and iii) neither the claim asserted nor the

22
2

23
24
25
26
27
28

Choudhury improperly raises a number of legal arguments in his reply brief, which were
not raised in his moving papers. The court will not entertain these claims, including Choudhury’s
“suggestion” for sanctions. Any desire for sanctions must be made known pursuant to the dictates
of Civil Local Rule 7-8.
3

In order to have standing, an individual must have first suffered an “injury-in-fact” to a
legally protected interest that is both “concrete and particularized” and “actual or imminent;”
second, there must be a causal connection between the injury and the conduct complained of;
third, it must be “likely”–not merely “speculative”–that the injury will be “redressed by a favorable
decision.” San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996)
(citing Lujan, 504 U.S. at 560-61).
4

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1

relief requested requires the participation of individual members in the lawsuit. Individuals for

2

Responsible Gov’t, Inc. v. Washoe County, 110 F.3d 699, 702 (9th Cir. 1997) (quoting Hunt v.

3

Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977). Associational

4

standing is particularly appropriate where “the association is seeking to represent the

5

interests which are central to the purpose of the organization” and “where the relief sought is

6

some form of prospective remedy, such as declaratory judgment, which will inure to the benefit

7

of the organization’s membership.” Rodriguez v. California Highway Patrol, 89 F. Supp. 2d

8

1131, 1135 (N.D. Cal. 2000) (quoting Peick v. Pension Benefit Guar. Corp., 724 F.2d 1247,

9

1259 (7th Cir. 1983). Absent both purpose and members, however, an association lacks any
standing to sue. Individuals for Responsible Gov’t, Inc., 110 F.3d at 702.

11
For the Northern District of California

United States District Court

10

In response to a motion for summary judgment on the ground of lack of standing, the

12

plaintiff must set forth, by affidavit or other evidence, specific facts that are to be taken as true

13

for purposes of the motion. Lujan, 504 U.S. at 561. If the affidavits on the summary judgment

14

motion do not go beyond the allegations of the complaint relative to establishing standing, the

15

analysis of the question is no different than it would be at the pleading stage. See Simon v.

16

Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976).

17

Generally, standing is determined by the facts that exist at the time the complaint is

18

filed. Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001). Lack of standing is a

19

jurisdictional defect (Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986)),

20

and standing is a necessary element of federal court jurisdiction. Big Country Foods, Inc. v.

21

Board of Educ. of Anchorage School Dist., 952 F.2d 1173, 1176 (9th Cir. 1992).

22

B.

Discussion

23

Choudhury advances several arguments attacking OSYU’s associational standing

24

based on the status of OSYU’s purported members. Specifically relating to membership,

25

Choudhury claims: i) OSYU had no members on the date OSYU filed its complaint, ii) OSYU is

26

currently a “sham organization” that lacks indicia of a traditional membership organization,

27

and iii) the individual members of OSYU would not have standing to prosecute this action in

28
5

Case 4:03-cv-03182-PJH Document 41 Filed 04/19/04 Page 6 of 13

1

their own right.

2

1)

Legal Standard for Membership

3

The California Corporations Code defines “member” as “any person who, pursuant to a

4

specific provision of a corporation’s articles or bylaws, has the right to vote for the election of

5

a director or directors or on a disposition of . . . the assets of a corporation or on a merger or

6

on a dissolution. . . .” ‘Member’ also means any person who is designated in the articles or

7

bylaws as a member and, “pursuant to a specific provision of a corporation’s articles or

8

bylaws, has the right to vote on changes to the articles or bylaws.” Cal. Corp. Code § 5056.

9

The Public Benefit Corporations Code § 5332, and the Nonprofit Religious Corporations
Code recognize that those types of corporations may refer to associated persons as

11
For the Northern District of California

United States District Court

10

“members” even though the associated persons do not meet the definition of member in §

12

5056.

13

The cases interpreting associational standing take a broader view of what constitutes

14

membership. In Hunt v. Washington State Apple Advertising Comm’n, the Supreme Court

15

rejected the defendant’s argument that the Washington State Apple Advertising Commission

16

was precluded from establishing the requisites of associational standing because it had no

17

“members” under state law. 432 U.S. 333, 342 (1977). Rather, the Supreme Court

18

performed a functional analysis and found that the apple growers and dealers possessed “all

19

the indicia of membership,” and that “the Commission represents the State’s growers and

20

dealers and provides the means by which they express their collective views and protect their

21

collective interests.” Id. at 344-45.

22

Moreover, the Ninth Circuit has held that an organization’s form under state law does

23

not affect its federal standing. Sierra Association for Environment v. Federal Energy

24

Regulatory Commission, 744 F.2d 661, 662 (9th Cir. 1984) (holding that a suspended non-

25

profit corporation had capacity to sue as an unincorporated association under Fed. R. Civ

26

Proc. 17(b)(1), and any incapacity under California law was accordingly irrelevant). Thus, the

27

“indicia of membership” test is the correct test to apply to determine whether a corporation,

28
6

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despite its failure to meet state law requirements, has “members” whose interests it can

2

represent in federal court. See Friends of the Earth, Inc. v. Chevron Chemical Co., 129 F.3d

3

826, 829 (5th Cir. 1997); Public Interest Research Group of New Jersey, Inc. v. Magnesium

4

Elektron, Inc., 123 F.3d 111, 119 (3d Cir. 1997).

5

The Hunt “indicia of membership” test looks to whether the organization represents the

6

purported members and provides the means by which the members express their collective

7

views and protect their collective interests. Hunt, 432 U.S. at 344-45. Generally, the test looks

8

to see if the organization in question is the “functional equivalent of a traditional membership

9

organization,” whereas the test specifically looks at whether an organization’s purported
‘members’ elect the governing body of the organization, whether the members serve in the

11
For the Northern District of California

United States District Court

10

organization, and whether the members finance the organization’s activities (including the

12

costs of litigation). Id. Other circuits have looked at additional factors, including whether

13

‘membership’ is voluntary, whether there is an articulated and understandable membership

14

structure and whether the lawsuit is within the organization’s central purpose, and thus within

15

the scope of reasons that individuals joined the organization. See Friends of the Earth, Inc.,

16

129 F.3d at 829.

17

2)

18

On July 9, 2003, OSYU’s only legal vestiges were its initial Articles of Incorporation and

19

its incorporator. OSYU had no legally appointed or elected directors, officers or members, as

20

that term is defined in the California Corporations Code. Moreover, at the time the complaint

21

was filed, OSYU was a Mutual Benefit Corporation, not a Public Benefit Corporation or

22

Nonprofit Religious Corporations, so the ‘member’ definition exceptions in those codes are

23

inapplicable to OSYU. However, because an organization’s lack of legal form is not fatal to

24

the standing inquiry (See Sierra Association for Environment, 744 F.2d at 662), the court

25

applies the Hunt “indicia of membership” test, when evaluating this issue as of July 9, 2003.

26
27

Membership in OSYU as of July 9, 2003

First, OSYU’s purported ‘members’ did not elect the governing body of the
organization. In fact, there was no official governing body of OSYU on July 9. Even assuming

28
7

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1

that Calder, by virtue of her organizational activities, qualifies as a “governing body,” she was

2

not elected to her role by the purported members. This factor weighs against OSYU.

3

Second, as of July 9, OSYU’s purported members did “serve in the organization.” At

4

the beginning stages of a fledgling organization, that organization’s activities will necessarily

5

be limited in scope. Calder, the McCauleys, Barkan, Clark, Hartsell and several other yoga

6

studio owners participated in regular conference calls, discussing OSYU’s initial strategy and

7

activities, including the filing of the current action. Additionally, Calder drafted and distributed

8

OSYU related information to those interested in OSYU. The court finds that OSYU’s purported

9

members did “serve” in and with the organization by fashioning OSYU’s strategy and

11
For the Northern District of California

United States District Court

10

disseminating its message. This factor weighs in favor of OSYU.
Third, OSYU’s purported members did help to finance OSYU prior to July 9, 2003.

12

Sixteen different individuals and organizations donated to OSYU prior to the date this law suit

13

was filed. This factor weighs in favor of OSYU.

14

The additional factors examined by other circuits also tip in favor of OSYU.

15

Membership in OSYU is voluntary, a factor which supports OSYU’s position. However, as of

16

July 9, there was no understandable or articulated membership structure. Membership in

17

OSYU simply seemed to be determined by desire to affiliate with like-minded people. This

18

factor weighs against OSYU. Finally, this lawsuit, which seeks to clarify Choudhury’s yoga-

19

related intellectual property rights, is clearly within the organization’s central purpose. This

20

factor weighs in favor of OSYU.

21

The court finds that on balance on July 9, 2003, OSYU did represent its members and

22

did provide the means by which they could express their collective views and protect their

23

collective interests. At least four of the Hunt related factors weigh in favor of OSYU, therefore

24

OSYU passes the “indicia of membership” test to establish associational standing. Moreover,

25

since the filing of this lawsuit, OSYU has established an articulated membership structure.

26

Thus, the court finds that Choudhury’s argument that OSYU currently lacks “indicia of

27

membership,” and is a sham organization to be without merit.

28
8

Case 4:03-cv-03182-PJH Document 41 Filed 04/19/04 Page 9 of 13

1

3)

2

Choudhury argues that OSYU’s members would not otherwise have standing to sue in

3
4

Standing of Individual Members of OSYU

their own right, and that therefore, OSYU has no standing.
On July 9, 2003, each of OSYU’s purported members had reason to fear an imminent

Choudhury’s statements on his website regarding the Morrison settlement, his practice of

7

sending cease and desist letters threatening litigation, and his history of pursuing litigation,

8

each of the yoga practitioners identified in OSYU’s opposition brief had real reason to fear

9

that Choudhury might seek to continue his litigation strategy in protecting his copyrights and

10

trademarks. Furthermore, even if a member felt no actual threat that Choudhury would sue,

11
For the Northern District of California

“injury-in-fact” to a concrete and particularized legally protected interest. Based on

6

United States District Court

5

each member had reason to believe their right to practice and teach yoga might be taken

12

away by precedent established by Choudhury’s potentially victorious legal actions.

13

The fact that some members of OSYU do not believe they are currently infringing

14

Choudhury’s trademark is irrelevant. Although the McCauleys claim that they are not infringing

15

Choudhury’s intellectual property rights, this belief alone would not prevent Choudhury from

16

seeking legal action against the McCauleys. The McCauleys belief that they are not engaged

17

in present activities which could constitute copyright or trademark infringement simply has no

18

relevance as to whether they are actually infringing Choudhury’s copyrights or trademarks.

19

Finally, the members’ injury, namely the inability to teach and perform Bikram yoga or

20

variations thereof without a license from Choudhury, would indeed be redressed by a

21

favorable decision in the current action.

22

4)

23

In his moving papers, Choudhury argues that OSYU cannot demonstrate that this

24

lawsuit is germane to OSYU’s purpose. Choudhury refashions this argument in his reply brief,

25

claiming instead that OSYU’s purpose is not analogous enough to other traditional

26

membership associations such that OSYU has standing to bring suit on behalf of its members.

27

Whether this Lawsuit is Germane to OSYU’s Purpose

Courts have generally found the germaneness test to be undemanding, and the Ninth

28
9

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1

Circuit thus characterizes the germaneness requirement as mandating mere pertinence

2

between litigation subject and organizational purpose. See Presidio Golf Club v. National

3

Park Service, 155 F.3d 1153, 1159 (9th Cir. 1998) (citations omitted).

4

As of the date of this lawsuit, OSYU’s stated purpose in its Articles of Incorporation was

5

to “communicate, and defend in any legal way possible, the idea that no form or style of Yoga

6

is proprietary as it can not be owned, transferred, franchised, trademarked or copyrighted.”

7

Furthermore, the evidence shows that OSYU was formed to provide a common voice to

8

oppose the “litigious position Choudhury is taking against the Yoga community.” This lawsuit

9

is directly related to OSYU’s purpose, which is to seek legal clarification of intellectual
property rights (Choudhury’s copyrights and trademarks in particular) as they relate to yoga.

11
For the Northern District of California

United States District Court

10

5)

Other Arguments

12

In addition to the issue of standing, Choudhury advances various other arguments in

13

support of his motion. Choudhury argues that OSYU members have unclean hands, that a

14

judgment favorable to OSYU would not forestall duplicitous litigation, that the nature of relief

15

sought by OSYU is inequitable, that necessary parties are not before the court pursuant to

16

Federal Rule of Civil Procedure 19, and that the affirmative claim of copyright misuse is not

17

cognizable.

18
19

a)

Whether OSYU Members Have Unclean Hands

Choudhury argues that OSYU’s members, by virtue of their contracts with Choudhury,

20

have “unclean hands” and would be subject to that defense if they were bringing this suit in

21

their individual capacity. Choudhury asks the court to exercise its discretion to decline to

22

entertain OSYU’s action for declaratory relief.

23

The court declines Choudhury’s request. The contractual obligations between

24

Choudhury and individuals who happen to be members of OSYU are not material to this

25

copyright and trademark claim for declaratory relief. Resolution of this suit in favor of OSYU

26

would not impact Choudhury’s ability to bring common law breach of contract claims against

27

certain individuals.

28
10

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1
2

b)

Whether Judgment in this Action Would Forestall Duplicitous Litigation

Choudhury again asks the court to exercise its discretion to decline to entertain

3

OSYU’s action for declaratory relief because this suit will encourage and permit duplicitous

4

litigation.

5

Choudhury’s argument is, again, unpersuasive. Choudhury’s main argument is that a

6

final ruling in this case will have limited geographic impact. Choudhury’s geographical

7

limitation argument presupposes that no court would be an appropriate forum for OSYU to

8

bring its claim, as each court’s ruling would be of limited geographical impact. OSYU’s legal

9

claims are not limited by geography, but even if they were there is no basis for providing

11
For the Northern District of California

United States District Court

10

12

Choudhury with immunity from lawsuits against him which may be filed in other jurisdictions.
c)

Whether the Nature of Relief Sought by OSYU is Inequitable

Choudhury claims, without relying on any legal authority, that the “asymmetrical nature

13

of relief” available to each party renders this action “unfair.” Given Choudhury’s aggressive

14

tactics of protecting his copyrights, including cease and desist letters and litigation,

15

Choudhury’s claim of inequity is unpersuasive. See Societe de Conditionnement en

16

Aluminium v. Hunter Engineering Co., Inc., 655 F.2d 938, 943 (9th Cir. 1981) (reasoning that

17

“the Declaratory Judgment Act was designed to relieve potential defendants from the

18

Damoclean threat of impending litigation which a harassing adversary might brandish, while

19

initiating suit at his leisure or never. The Act permits parties so situated to forestall the accrual

20

of potential damages by suing for a declaratory judgment, once the adverse positions have

21

crystallized and the conflict of interests is real and immediate.”).

22
23

d)

Whether Necessary Parties are Before the Court Pursuant to Rule 19

Choudhury next argues that not all necessary parties are before the court as required

24

by Rule 19. Choudhury claims that Bikram Certified Teachers, who benefit from their licensing

25

arrangement with Choudhury and would be threatened by a ruling favorable to OSYU, have a

26

“financial/contractual” interest in this litigation.

27

Rule 19 protects the legal “interests” of non-parties that will be impaired by the litigation

28
11

Case 4:03-cv-03182-PJH Document 41 Filed 04/19/04 Page 12 of 13

1

“as a practical matter.” Rule 19(a)(2)(i); American Greyhound Racing, Inc. v. Hull, 305 F.3d

2

1015, 1023 (9th Cir. 2002). Where precedent in copyright cases is lacking, it is appropriate

3

to look for guidance in patent law “because of the historic kinship between patent law and

4

copyright law.” Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984); Harris

5

v. Emus Records Corp., 734 F.2d 1329, 1333 (9th Cir. 1984). It is well settled in patent law

6

that a non-exclusive licensee “has only a personal and not a property interest in the patent.”

7

See In re CFLC, Inc., 89 F.3d 673, 679 (9th Cir. 1996). Furthermore, the Seventh Circuit has

8

specifically held that for purposes of joinder in a suit for copyright infringement, a licensing

9

agent is neither the legal nor the beneficial owner of the copyright and has no interest in the
copyright. Bourne Co. v. Hunter Country Club, Inc., 990 F.2d 934, 937 (7th Cir. 1993).

11
For the Northern District of California

United States District Court

10

12

The court finds that Choudhury’s non-exclusive licensees have no legal interest in
intellectual property owned by him, and therefore are not necessary parties under Rule 19.

13

e) Whether Copyright Misuse is a Cognizable Claim

14
15

Choudhury argues in a footnote that the affirmative claim of copyright misuse is not
cognizable. The court is not persuaded by Choudhury’s footnote.

16

In accordance with the foregoing, the court finds that Choudhury’s motion for judgment

17

on the pleadings, or in the alternative, for summary judgment or adjudication regarding

18

standing and other jurisdictional issues must be DENIED. All other motions by the parties

19

currently pending before the court, including the remainder of Choudhury’s evidentiary

20

objections, are rendered moot.

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This order fully adjudicates the matter listed at No. 26 on the clerk’s docket for this
case.

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IT IS SO ORDERED.

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Dated: April 19, 2004

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__________/s/____________________

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PHYLLIS J. HAMILTON
United States District Judge

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Case 4:03-cv-03182-PJH Document 41 Filed 04/19/04 Page 13 of 13

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