The Investigation of Sin The': Bullshido.org
My article discusses the historically inconsistant claims otherwise known as bullshido articulated by Sin The', the art's actual founder.
For more information Please see the attached deposition of The', his declaration, a copy of his complaint, and other documents that provided us with our information about The's claims, and what he would later admit to under oath. It Is Fake also contributed a valuable thread article about the business side of Shaolin Do based on his experence as a former instructor in this art. So read on, for a truthful expose of the art called Shaolin Do.
Sin Kwang The' v. Jacob Rydberg aka Jake Mace: An Introduction to a Law Suit
Before discussing the claims that emerged from Sin Kwang The's testimony about the historic, or less then historic, origins of Shaolin Do, a brief review of the grounds of this lawsuit are necessary. Its much easier for the reader to understand what is happening if they know that this suit, filed in the Central District of California on August 5, 2011 is a copyright infringement act, though there were six other claims. Trademark Infringement, Violation of the Lanham Act, Unfair Competion under the California Code, Right of Publicity, Violation of Privacy, and Breach of Contract.
In his original complaint, through his attorney, The' claimed that "Since at least October 2010, defendants have repeatedly used the Grandmaster The's name, image, trademarks, copyrighted teaching forms, and instructional materials, among other things, in their advertisements and commerical activities without his aithorization and consent." (Complaint, paragraph 3.)
After some historically questionable statements, The' asserted "Grandmaster The's Shaolin Do system includes a series of specific martial arts movements and exercises that are performed in a specific manner and order. The exact exercises and movements and the order in which they are to be performed were selected by Grandmaster The', and were eventually recorded on a visual medium in, or about 1980." (Complaint, paragraph 11)
Later in August of 1990, The' attempted to "register his system of ShaolinDo with the United States Copyright Office," which gave him a certificate of Copyright Registration No. PAu-1-493-404. (Complaint, paragraph 12) The' sent in a videotape of various Shaolin Do Kata, but whether this was specific enough to actually copyright a series of movements would become the central issue of this case. The caselaw treats chorography and athletic technque differently, so to win, The' would have to prove that his kata were more like Martha Graham, then say, a kickboxing combination by Joe Lewis.
The' also claimed that he owed service marks and trademarks that the defendant was misappropriating. Some of these included his patches which were still in use by Rydberg. According to The' in late 2008, the defendant asked to be released from his "tutelage of one of Grandmaster The's Elder Masters." (Complaint, paragraph 19) The complaint does not mention that this elder master was David Soard who was engaged in a pattern of behavior that later resulted in a conviction for sexual battery. For more information see this thread. http://www.bullshido.net/forums/showthread.php?t=90641
So The' agreed to transfer Rydberg to the supervision of other "elder masters" as long as he played by the rules and paid him "a test fee ranging from $50 to $100 per student, depending on the level of the student." (Complaint paragraph 14) Rydberg's contract with Soard was not re-executed by Rydberg and The', so their agreement was rather unspecific except for the requirement to provide an income stream from testing. [footnote 1]
In early October of 2010 according to The', Rydberg met with him and told him that he would no longer be complying with his guidelines. (i.e. sending the testing cash) but would be continuing to teach his "copyrighted" system without The's consent. (Complaint, paragraph 24)
So after the standard cease and desist letter in late October, 2010 a lawsuit was filed the next year in Federal District Court. This was not simply a lawsuit but also a motion for a preliminary injunction which had to establish: 1) That the plaintiff is likely to succeed on the merits, and 2) that he is likely to suffer irreparable harm in the absence of such preliminary relief. 3) That equity tips in his favor. and 4) the injunction is in the public interest. (paraphrasing from the defendant's Motion in opposition to the Motion for Preliminary Injunction, page 16) The defendant also made numerous arguments, some which will be reviewed through a discussion of the Court's ruling.
When George King, the U.S. District Judge ruled on the motion for a preliminary injunction he first observed that since the Supreme Court's decision in Winter v. NRDC, 555 U.S. 7 (2008) 'irreparable harm can no longer be presumed in copyright or trademark infringement cases." Just because a Plaintiff could show a fair chance of success did not satisfy this separate prong for the purposes of obtaining injunctive relief.
King wrote that "Plaintiff's moving papers are unclear about the copyright he purports to own". (Civil Minutes General, January 18, 2012 p. 3) "We have serious doubts about the validity and/or scope of Plaintiff's copyright. As Plaintiff acknowledges individual martial arts movements are not copyrightable, each sequence must have at least minimal originality to be protectable. However, we are unable to determine precisely what sequences are claimed to be copyrighted.
Plaintiff lodged a copy of the DVD that was deposited with the Copyright Office. Plaintiff's counsel clarified at oral argument that Plaintiff purports to have copyrighted individual sequences contained within the DVD, as opposed to the entire contents of the DVD as one long, single sequence. However, even after viewing the DVD multiple times, we cannot determine precisely where one sequence ends and another begins, and Plaintiff provided no clarification on this issue at oral argument.
Because we cannot tell precisely where each sequence begins and ends, we are also unable to judge the originality of the selection and ordering of those movements, which is the only element of Plaintiff's work that is arguably protectable. Moreover because Plaintiff's work consists of a combination of unprotectable elements, this reflecting minimal originality, any protection that Plaintiff enjoys is thin and protects against only virtually identical copying. . . . Because we are unable to determine precisely which sequences are puportedly copyrighted, we are also unable to determine whether these sequences were copied by the Defendants." (Id, p. 5)
With these words King dismissed The's likelyhood of success on the merits of his copyright injunction and then proceeded to polish off the rest of his claims. Trademark infringement? The Plaintiff had not established that the defendants were using his trademarks after the crucial October 29, 2010 date, and the patches that his former students wore had been awarded WHILE they still trained with The'. The Plaintiff's case was hampered by a lack of documentation provided by his lawyer, mostly centering around issues of time and identity. Finally since The' did not show that he had any schools in the Phoenix area, or that any of Rydberg's students would have gone to study with him in California. The Magistrate rejected his claim for irreparable harm. [footnote 2]
This is only a light treatment of the legal issues in The's case, however following the rejection of the preliminary injunction, Rydberg's Attorney deposed Sin Kwang The on February 8, 2012. During his deposition The' did yet more damage to his case, leading to a confidential settlement which was submitted to the court on February 15, 2012. We do not know what this settlement entailed, but the fact that it so closely followed The's deposition and the rejection of the preliminary injunction seems to indicate a favorable disposition for the defendant. Similarly, since both parties agreed to pay their own costs and attorney's fees [footnote 3] it did not appear that the Plaintiff was even able to recover the expense he incurred when he filed this suit.
[1] Deposition of Sin Kwang The, in Sin Kwang The, v. Jacob Rydberg et al, Case No. CV 11-6471 GHK, United States District Court, Central District of California, page 99. The' admitted he never had a written contract with Rydberg.
[2] The' would later claim in his Deposition, see page 126 that Rydberg was competing with a student of his in Phoenix Arizona. However the Plaintiff had not asserted this fact as a basis for their " irreputable harm" at the time they filed for the preliminary injunction, or apparently at the hearing itself.
[3] Stipulation for Dismissal, page 2, dated February 13, 2012. in Sin Kwang The, v. Jacob Rydberg et al, Case No. CV 11-6471 GHK, United States District Court, Central District of California. The precise language was as follows: "The parties further stipulate and agree that each party shall bear its own costs and attorney's fees in this action." On pages 13 through 15 of the original complaint, the Plaintiff had previously demanded costs and attorney's fees as part of his claim for relief.
My article discusses the historically inconsistant claims otherwise known as bullshido articulated by Sin The', the art's actual founder.
For more information Please see the attached deposition of The', his declaration, a copy of his complaint, and other documents that provided us with our information about The's claims, and what he would later admit to under oath. It Is Fake also contributed a valuable thread article about the business side of Shaolin Do based on his experence as a former instructor in this art. So read on, for a truthful expose of the art called Shaolin Do.
Sin Kwang The' v. Jacob Rydberg aka Jake Mace: An Introduction to a Law Suit
Before discussing the claims that emerged from Sin Kwang The's testimony about the historic, or less then historic, origins of Shaolin Do, a brief review of the grounds of this lawsuit are necessary. Its much easier for the reader to understand what is happening if they know that this suit, filed in the Central District of California on August 5, 2011 is a copyright infringement act, though there were six other claims. Trademark Infringement, Violation of the Lanham Act, Unfair Competion under the California Code, Right of Publicity, Violation of Privacy, and Breach of Contract.
In his original complaint, through his attorney, The' claimed that "Since at least October 2010, defendants have repeatedly used the Grandmaster The's name, image, trademarks, copyrighted teaching forms, and instructional materials, among other things, in their advertisements and commerical activities without his aithorization and consent." (Complaint, paragraph 3.)
After some historically questionable statements, The' asserted "Grandmaster The's Shaolin Do system includes a series of specific martial arts movements and exercises that are performed in a specific manner and order. The exact exercises and movements and the order in which they are to be performed were selected by Grandmaster The', and were eventually recorded on a visual medium in, or about 1980." (Complaint, paragraph 11)
Later in August of 1990, The' attempted to "register his system of ShaolinDo with the United States Copyright Office," which gave him a certificate of Copyright Registration No. PAu-1-493-404. (Complaint, paragraph 12) The' sent in a videotape of various Shaolin Do Kata, but whether this was specific enough to actually copyright a series of movements would become the central issue of this case. The caselaw treats chorography and athletic technque differently, so to win, The' would have to prove that his kata were more like Martha Graham, then say, a kickboxing combination by Joe Lewis.
The' also claimed that he owed service marks and trademarks that the defendant was misappropriating. Some of these included his patches which were still in use by Rydberg. According to The' in late 2008, the defendant asked to be released from his "tutelage of one of Grandmaster The's Elder Masters." (Complaint, paragraph 19) The complaint does not mention that this elder master was David Soard who was engaged in a pattern of behavior that later resulted in a conviction for sexual battery. For more information see this thread. http://www.bullshido.net/forums/showthread.php?t=90641
So The' agreed to transfer Rydberg to the supervision of other "elder masters" as long as he played by the rules and paid him "a test fee ranging from $50 to $100 per student, depending on the level of the student." (Complaint paragraph 14) Rydberg's contract with Soard was not re-executed by Rydberg and The', so their agreement was rather unspecific except for the requirement to provide an income stream from testing. [footnote 1]
In early October of 2010 according to The', Rydberg met with him and told him that he would no longer be complying with his guidelines. (i.e. sending the testing cash) but would be continuing to teach his "copyrighted" system without The's consent. (Complaint, paragraph 24)
So after the standard cease and desist letter in late October, 2010 a lawsuit was filed the next year in Federal District Court. This was not simply a lawsuit but also a motion for a preliminary injunction which had to establish: 1) That the plaintiff is likely to succeed on the merits, and 2) that he is likely to suffer irreparable harm in the absence of such preliminary relief. 3) That equity tips in his favor. and 4) the injunction is in the public interest. (paraphrasing from the defendant's Motion in opposition to the Motion for Preliminary Injunction, page 16) The defendant also made numerous arguments, some which will be reviewed through a discussion of the Court's ruling.
When George King, the U.S. District Judge ruled on the motion for a preliminary injunction he first observed that since the Supreme Court's decision in Winter v. NRDC, 555 U.S. 7 (2008) 'irreparable harm can no longer be presumed in copyright or trademark infringement cases." Just because a Plaintiff could show a fair chance of success did not satisfy this separate prong for the purposes of obtaining injunctive relief.
King wrote that "Plaintiff's moving papers are unclear about the copyright he purports to own". (Civil Minutes General, January 18, 2012 p. 3) "We have serious doubts about the validity and/or scope of Plaintiff's copyright. As Plaintiff acknowledges individual martial arts movements are not copyrightable, each sequence must have at least minimal originality to be protectable. However, we are unable to determine precisely what sequences are claimed to be copyrighted.
Plaintiff lodged a copy of the DVD that was deposited with the Copyright Office. Plaintiff's counsel clarified at oral argument that Plaintiff purports to have copyrighted individual sequences contained within the DVD, as opposed to the entire contents of the DVD as one long, single sequence. However, even after viewing the DVD multiple times, we cannot determine precisely where one sequence ends and another begins, and Plaintiff provided no clarification on this issue at oral argument.
Because we cannot tell precisely where each sequence begins and ends, we are also unable to judge the originality of the selection and ordering of those movements, which is the only element of Plaintiff's work that is arguably protectable. Moreover because Plaintiff's work consists of a combination of unprotectable elements, this reflecting minimal originality, any protection that Plaintiff enjoys is thin and protects against only virtually identical copying. . . . Because we are unable to determine precisely which sequences are puportedly copyrighted, we are also unable to determine whether these sequences were copied by the Defendants." (Id, p. 5)
With these words King dismissed The's likelyhood of success on the merits of his copyright injunction and then proceeded to polish off the rest of his claims. Trademark infringement? The Plaintiff had not established that the defendants were using his trademarks after the crucial October 29, 2010 date, and the patches that his former students wore had been awarded WHILE they still trained with The'. The Plaintiff's case was hampered by a lack of documentation provided by his lawyer, mostly centering around issues of time and identity. Finally since The' did not show that he had any schools in the Phoenix area, or that any of Rydberg's students would have gone to study with him in California. The Magistrate rejected his claim for irreparable harm. [footnote 2]
This is only a light treatment of the legal issues in The's case, however following the rejection of the preliminary injunction, Rydberg's Attorney deposed Sin Kwang The on February 8, 2012. During his deposition The' did yet more damage to his case, leading to a confidential settlement which was submitted to the court on February 15, 2012. We do not know what this settlement entailed, but the fact that it so closely followed The's deposition and the rejection of the preliminary injunction seems to indicate a favorable disposition for the defendant. Similarly, since both parties agreed to pay their own costs and attorney's fees [footnote 3] it did not appear that the Plaintiff was even able to recover the expense he incurred when he filed this suit.
[1] Deposition of Sin Kwang The, in Sin Kwang The, v. Jacob Rydberg et al, Case No. CV 11-6471 GHK, United States District Court, Central District of California, page 99. The' admitted he never had a written contract with Rydberg.
[2] The' would later claim in his Deposition, see page 126 that Rydberg was competing with a student of his in Phoenix Arizona. However the Plaintiff had not asserted this fact as a basis for their " irreputable harm" at the time they filed for the preliminary injunction, or apparently at the hearing itself.
[3] Stipulation for Dismissal, page 2, dated February 13, 2012. in Sin Kwang The, v. Jacob Rydberg et al, Case No. CV 11-6471 GHK, United States District Court, Central District of California. The precise language was as follows: "The parties further stipulate and agree that each party shall bear its own costs and attorney's fees in this action." On pages 13 through 15 of the original complaint, the Plaintiff had previously demanded costs and attorney's fees as part of his claim for relief.
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