that they did not apply the standard summary george judgment protocol the facts here were not view in favor of design basics nor were the reasonable inferences from the other  drawn in favor of design basics but what actual evidence was there that all sore of the designs that you're alleging were the subject of copyright infringement had been uploaded to the design basics website at a time when lexington might have seen them the record as presented is somewhat scarce and that well that is your problem for me well there's there's other evidence word inference can be drawn as to the date we do know from the registration certificates when these works were created and registered and when was that for the four of them i'd have to look at the registration certificates tell me what it was well before the infringing activity here is in the ninety's so your allegation thousand so you're asking us to infer that because they were registered with the copyright office they were also uploaded to the web site without any further evidence of what was available well there  is evidence in the form of a declaration that all of the plans were on the website and i think the reasonable inference here is why would a design company like design basics go through the trouble of creating a new plant hav registered and then why would they stick it in a folder for two years or three years or six months or two days when i don't you all have control of that information yes that we do and their silence well they didn't  didn't wasn't put in the record here as to the date they were actually up what i said i think the reasonable inference is you create the plan when you want it we would have had an incentive to do so that we usually don't say the fact that somebody has an incentive to do something in their own interest is evidence that they've actually done it right particularly because i gather the current owners of design basics purchased a company only  maybe may not make two thousand and nine is not recent anymore but long after these designs were supposedly created and registered that's correct so all the more reason to examine what one's predecessors might have done even identical thing doesn't fringe absolutely but if you look at the judge agrees box decision what he held was there was no evidence that they had these four plans in their possession but there unclear actually what the judge says is just bite the foregoing evidence suggesting that access to the plane of sorts in general there's no evidence that they had access to the four works at issue in this case and he notes that these five plan books don't have it there a couple of other things and he's also not satisfied with the quality of the of the internet i mean i don't think you have any evidence by the way myself or others in the internet evidence and so that falls on the internet when i don't have that they're not a problem that's their problem so you know let's let's assume you can solve that one ok let me ask you about my more basic problem with the case and it essence it is in this field of designing single family homes in middle range of experiences what counts is so similar that a jury could infer copying and what effort did you all make to identify what is actually original and protected in your copyrighted works i'll answer the last part of the question first if you look at mr cruz ols declaration he knocked about what he bedrooms you know upstairs in a hall and you're going to have certain rooms downstairs and i don't know which things how this becomes creative enough and different enough to be copyrightable common elements scope of protection afforded architectural work and what it says is the work includes the overall form as well as the arrangement in composition of spaces and elements in the design what does not include individual standard features right so  s also a lot there are a lot of differences between defendant's designs and yours and there are you know there  are an awful lot of constraints on architecture doing this kind of design work by customer demand by conventions practical stylistic conventions i don't know if you're familiar with the second circuit's decision called zalewski seven fifty four f third ninety five twenty fourteen decision that really explores this in some detail was problem of residential architecture and theoretical sense but if you've got twenty seven hundred designs for single family houses and if posting them on the internet use enough to support an inference of access i can imagine a case in which in in these sort of loose seek to see look and feel similar positions of mr cuozzo i don't see how you can't sue everybody in the country well and why everybody else in the country can't sue you for that's that's that's not the situation we have to tell me what we want we've also have a situation where these defendants knew of design basis laid her dad other plans her well let's focus on the similarity issue here in the please address the problem i'm talking about about how much is protected what is protectable is what is described in stature but you need to be more specific about how this is you know is it that the doors are you know so i can't go one so unique about a four and you know you need to find something about the the house that's not just driven by it's function well yeah but the make you're going to have a bathroom probably off the master bedroom that the beam of the standard copyright act does not require that something be unique or that there be some type of and some creativity it also can't just be functional absolutely absolutely so the house will be functional if you like of give you an example say four bedrooms in two and a half past and we put one floor and we put all four bedrooms on one side or we split the bedrooms up and put  corner we still have all the same function you can still slip four bedrooms useless in the bathrooms but how you arrange those elements in the design is what is unique and was protected well now that's not to say that another designer can't come in and come up with his own design independently created it happens all the time and that is substantially similar to mine that's ok if there's independent creation they're entitled to copyright protection on that design that doesn't lessen my copyright protections how many single family homes are there in the united states you think how many millions ten fifteen fifty million sure at least right there's an awful settlement soon litigation income seems to be the primary business model i would take issue with that this company is in business to design and develop house plans and licensing mr carmichael said litigation was a testified it's a primary source of revenue right and that he was attracted to the investment because of the litigation potential i was in his deposition could have been but the fact it was or it was in his deposition is there  these designs on design basics website behind a paywall or do you just see them with a little copyright designee here there are floor plans and elevation renderings that are available  website if you want to cursory for free for viewing for viewing if you want to construction drawing that's what you license and they'll send you a construction drawing with whatever modification just the record show what kind of revenue design basics gets from sales of those construction drawings i'm not sure what is in the record i can tell you that last year they developed sixty new plans that were registered so they are registering new copyright as china is going absolutely and they licensed over i believe six hundred plants last year i don't have a reference to the record and i'm not entirely sure it's in there but that is my understanding well the copyright registrations flick i suppose be a matter of public record sure absolutely so as i said you don't have to have a unique design to have copyright  and if someone else comes up with something that substantially similar that they can establish was independently created or was created from a common third source something that was already in the public domain there is no infringement the facts in this case in lexington is that they independently created each of their designs in house so they didn't say that there was a common third party they said it was in house and they also say that largely the functionality point you know if you read if there are if you're building a single family home between about twelve hundred and eighteen hundred square feet there's just so much variation you're going to have people want certain features right well but within there you can have one good morning you're honest from a place of court there is no genuine dispute as to any material fact regarding access in this case the evidence is crystal clear despite allegations and design basics complaint that they themselves directly gave plans to lexington that it never happened they checked their marketing materials their sales history anything they could look at and said you're right we haven't built the gate anything directly to lexington so they say this is the issue about the actual physical plant catalogues and flyers and so forth yes and and that is the issue of is it in a way that lexington might have an actual accessory they're not around when it counted people or they jumped from ok you got us we didn't lexy or from design basis as to the fourth plan at best they should potentially show the home builders association got it a full decade before lexington joined that association and a full twenty one years before lexington built the we get unsolicited plans we don't keep them we throw them away we don't put them on a shelf for potential members to browse through they're not here even if we might have gotten them twenty years ago that's uncontroverted on top of of course lexington personnel so that's why i said i think this gets down to the website one way or the other i didn't see anything it's side from the website and i would agree your honor and what is most important or at least one of the important things after that in this particular case asked more generally what would it have been shortly after they were created i don't know he was asked what's the procedure of design basics to put new plans on their website answer i don't know all they have is later in an attempt to protect themselves from lexington's motion for summary judgment on that issue is the same mr cruz all stating generally we put all our plans on the website so there's no real proof these plans were on the website prior to the date lexington independently created it personnel said they never access the website they didn't even know of design basics website it might be some proof because of one of these plan books that they saw that had designed basics referenced in there among dozens and dozens of other response to discover requests for any plan books of any nature they happen to find or on a back shelf that they testified we didn't even know we had them until they started with the dog eared pages exactly so these are very dated plan books not even designed basics plan they're from other marketing companies with hundreds of plans and a few of which happen to be designed basics so conceivably design of lexington could have someone could have found those old books peach through them found a specifically designed basics name on one but they don't have a website and there's no identified fact the whole model of those books is you don't call or contact the designer they're set up to call the marketing company who puts out the book that's how they make their money so no evidence of the website there could have been evidence of the company's existence itself who maybe you can help explain something to me that was a mystery in mr kreuzer closers affidavit and paragraph the thirteen he says through inspection of c eighty drawings and blueprints produced by defendants during discovery plaintiffs found it on every document plaintiff's and the copyright management information had been removed and replaced with defendants false designation in the title block is there anything to that no i don't i don't mean does it it sounds terrible right that is here's here's the drawing we just take out the little block here and put our stuff in and that would sound pretty bad first of all that whole statements based on a completely false premise that those were designed basics plans they weren't what they found the website where lexington's independently created plans at lexington's name on it so it's it's a red herring right from the start where there if there's no proof of the true exact design basic plan simply having their copyright protection market some hollywood race these are lexington plans that lexington created in lexington's website i feel like these plans must be very cheap to buy if there are so many if there are thousands of them and there's so little room for variation for at least you know a single family homes of a particular square footage and maybe i'm wrong but i believe there iran or and i don't know if this is in the record but just from my searching i you know i believe they get into the several hundreds of dollars to maybe a more complex plan creeps over a thousand roughly to you know purchase mutilations to build that particular mean i can imagine you know if you want you know of a frank lloyd wright style house you might pay an architect a fair amount of money to design something architecturally interesting that this doesn't seem to be that market but i agree with that if i mean one more thing on the website is not only is there no proof these plans are on  recently about the future i have to say because your position seems to be that the company would need to really dig down in find the ip addresses of everybody who visited the website and sorted and go through a very expensive process to see which computers were there to prove actual access and you know in today's world if something's going to come up on the first page of a google search or you know something like other search engines but a search if it's a very easy inference that they had easy access well in my distinction it is easy access doesn't equal access just because of the maybe in today's technology it's a little easier to sit on your laptop at home and pull up a plan than audi's cent jump in your car and drive to a store or something there's still something in common with both of those ways of getting access the defendant has to do something more it's not just it's out there somewhere so they're easy to find it's out there harborside fine our proposition is there needs to be something more that if some bit of evidence maybe not directly this by the way that just you've heard of the company it comes up readily and ordinary search and so almost a burden shift you know shows that you didn't have access because it just seems to me in today's world access is a very as you just described a very different proposition you know if you're the kind of person who likes to sit around your computer for lebanon tonight and do your cyber shopping you know you're a lot different from the person who goes to the mall and way easier the two responses one is that would be a dramatic shift in the law to simply say defendant you have to prove an absence of access that would be a virtual impossibility to prove that negative but the law is changing in a lot of areas whether personal jurisdiction or whether infringement of copyright so other areas as well to try to accommodate the internet which is a bad sit with a lot of legal doctrine and i think there is a way that today's technology in the historic laws relating to access and copyright can merge and one of those ways ironically was suggested bridge they said if you're going to look at internet as an access perhaps other things a quarter consider in that context this site hits search engine result rankings that usability of the web site for browsing or searching for the protected work at issue see there's something more that it's not just it's out there that it's it's a prominent site it has so many even if it's not this particular defendant you know it had a million hits last month or this plan was clicked on fifty times by at least somebody on the planet or this is such and you know you get a google search and which i did and it doesn't pop up on the first page or the first item not even close so you need something beyond  on our internet say into story because that would make the defendant's job virtually impossible to defend these cases especially here when you're talking something it's been is trying to copyright the generic standard starter home a defendant would have to throw in the total right from the start on this question of access so years i've been thinking about a couple of older older technologies books and songs and i suppose if it's born to run or johnny b goode you probably don't have to show access right every everybody in you heard in this culture is probably heard those songs and have has them in their heads on the other hand so would the fact that a book is published in a public library public libraries across the country i don't think is enough to show access and i don't believe it is either i mean perhaps if there was more it's in a public library in your city for which you have a library card now you're inching closer to the opportunity to access but again my point is the mere proof it's somewhere is not enough there always has to be at least some possibility that this defendant or at least the public at large is is going to it somehow stumbling across is there any issue of attorney's fees in case there is your honor the district court awarded attorney fees in this case as to the issue and we're in the middle with three thing as to the the one last thing i would indicate especially with you know with this access issue if i may is you know to the extent you're kind of getting away with actual proof of access and striking similarity which has been brought up in the briefs that's typically in the context of something that's unique or complex you know number on papi right citing cell from the circuit said that that will striking similarities just an ill fit for something that builds it's short and builds on a repeat d pattern in that case it was a song but in this case basic starter homes which only so many rooms you may shift around there are small basic built on a repeated pattern so striking similarity as a replacement for access just does not that well with this type of case relating to architectural works potentially in others but so you just don't you just have to i don't know the test i'm not sure it's a big task but it has to be adapted to the nature of the material and what's gain i think your honor mentioned earlier if there was a question about what's truly unique or original creative about design basics plans and i agree mr cruiser doesn't say so he says you're the one criteria he believes are important don't really say why and then he says and i looked at the plans and they're substantially similar when looking at those criteria which even if he happened to get one or more of those criteria right in that that item is protect the ball in an architectural setting he didn't say what was unique about design basics placement of rooms or overall flow which then again gets to the point of where is there any similarity that they pointed out let alone striking similarity i think judge the district court judge got it absolutely right when he noted these are basics starter homes and there's only so many ways as several cases have cited you can move them around house plan or something else i think the fact that it's simple would make it easier to prove independent independent creation or that they copied it from a common a third source and those are jury questions that have to go in front of the jury once access and substantial once access is established and substance substantial similarity using the ordinary observer test close to the jury so council can get up and say look at these are simple designs this isn't rocket science anybody can do it there are only so many ways and the plaintiff can get up and say listen they knew about these plans and knew about our plans look at these things this is there are four of them this is more than quince and all that off or these are spot