at the outset let me note that what we're primarily reviewing here are motions for summary judgment importantly because we are also talking about architectural works those words have had special protection the passage of the architectural works copyright protection act in december of one thousand nine hundred ninety that's important because this court in the garcia versus google case with the have a regime for analyzing the copyright of a party and in the google case it was a contract and works for hire here we have architectural works and a contract and that case it is improper for a court to revert and try to use the analysis for and implied nonexclusive license so the effects case should have never been referred to here importantly when we look at the contracts here there was a letter agreement between frost sujit and highway in that agreement had specific contract copyright language itself and it did two other things it referenced by it referenced the use of standard a contract language and the parties competent to plaited that there was going to be a follow one more for incomplete a i a form agreement which the parties did eventually which cross to the prepared and submitted to highway n on feb first highway n reviewed that agree on a draft came back with a series of questions and suggested revisions to that agreement immediately over that weekend after receipt made every single one of those revisions and answered all the questions and submitted that the agreement back to highway and for execution when we look at the  johnson and morning site cases the court tells us that shows the intent of the parties and here the lower court should have looked at that as the intent of the parties and use that copyright language and factors why weren't the precinct gays in ongoing relationship one of the factors in the letter of agreement show that promise is a career just was the architect throughout the project and the letter of agreement would not be terminated until one of the parties affirmatively chose to do so that your correct well well assuming that the terms were not incorporated why doesn't that answer the question about not being able to revoke or term i didn't understand your honour's question u there was an actual contract here your honor we don't have to imply a contract we have the terms of the agreement and when you look to the two things if if if court would have been proper to look at the standard  terms with respect to copyright ownership and terminations of license because the ai terms are uniform on that highway and never objected to those terms they knew it those terms were but if the court didn't want to go that far and in interpret the contract what the court did hear is the lower court found that there was the contract was ambiguous when it found that the terms of the contract w us i don't believe it should have but would have found that it should have noted that that is a material fact and they're sure for should have denied both the motions on the contract is so your suggestion is that gagnon never comes into existence i don't believe that you need to go that far your honor but if you do and you look at the three parts of gagne and there were supposed to be a long term relationship between the accordance with the a i a standard terms it would grant eric the non exclusive license to use its work for the restaurant that did not happen so when frost sued he was terminated and then when highway in and the other defendants tried to convince frost sujit that they had a quote fresh new design that they weren't using frost sujit swer but in fact they were and that's part of their misconduct from the very beginning and that misconduct sets were at the intent point highway ends principal monica to gucci knew for certain that she did not have a license to use frost's work although highway in failed to disclose the two april e mails that we have mentioned got from commanding us schools those e mails which were in a string on the same day to the same party show that needs to gucci told her landlord that she did not have a license and once the court found out and we disclosed to the court this improperly withheld april e mails the court should have granted our reconsideration at that point and reversed its decision on motions for summary judgment let me ask you a couple of the cases that you cited in your brief i think nelson and johnson but in and those cases it seemed to me there was this very specific language that you often see which is that these documents that come from the architect are not property of the owner and you can't use them in any way and even if you want to use them for the completion of the project you can't but we don't have anything like that so i'm not quite sure how you think we should invoke those cases here because the johnson and morningside cases are so similar you're i mean there are cases of terminations but there the court was able to look at those basically the standard a i a language and if we look at section one point three of the general conditions it specifically says that if you can use you the owner of the project can use our work if you pay us promptly if you don't pay us in full and if you don't pay as promptly you don't have that right i wish we did  though they were excellent but it seems to me that this is comparing apples and oranges to a degree because that's that contractor we're looking at contract language and here we are now then in like we we we do have the reference in the letter agreement honor to the standard ai ai a trick and if we look at the stall case which tells us there are no magic no magic words that you need to use for that reference and then refer a terms and secondly that reference document or this reference materials need to be easily accessible or obtainable by the other side and here a high terms you can go online and find him but importantly here your honor highway in had the contract they had the draft agreement in february they knew what that language was and they didn't object to it highway in had paid for in full let's let's say that we got paid all the money that was oh is this the a i a language says that with that you the owner have a non of a license to highway and to go use it for that and that didn't happen here that didn't happen because highway and didn't execute the contrary corrector on green right but after the terminations frost su if you're not going to pay for it you don't get the benefit of it right let me turn briefly if i could to the d m c a there are we have that here number two there had to be removal of that c m i and that's kind of what some of defendants have disputed and then you need to have that removal to be intentional those are the three elements of that so let's look at what we were able to show even a summary judgment level about the removal of the c m i number one skip elkan it's the princip ie the kitchen equipment supply and bar grease admitting that they had removed the layer that had our title block and c m i from the cad drawings there's room that wasn't negligently done they didn't miss that they purposely removed it later on we also found evidence that highway ends material that it had in the old save documents it had s cad drawings to the new architect without the sea lion title block on it again highway and knew exactly what who had would you be able to say that there was this concealment of an infringement if in fact there was a right license to use yes wrong again and why is that because even if you have a license to use the works those words still need to be attributed to the creator that's what the d m c a says you can have a license to use a b you can't strip it of my copyright and yes ok and how does that happen if it happens because we have been able to show that there is spin c m i removed it was purposeful and then others use those documents so although you might have had a right to use the materials if you would have paid for them right when you strip off the c m r i if that in another itself to any do it intentionally when desist letters clearly told all the parties involved j k i hire way and we hora all of them that they had no right to use this because we understood that their representations being made that we had been paid in full and there was have the designations but would that be still a violation and i'm not sure plea answer that because you read back again the assumption that because you told them they didn't have the right to use it because they hadn't paid in been paid and informed and then it had its work was being used if another party intentionally removed that c m i that would still be a violation of the d morning may please court my name is david major i represent highway in the hall and our office is requested thirteen minutes of the twenty minutes for this side and a quick question with the yellow like come on  know when you see thirteen men and when and means when he says seven minutes your time is not me here on a minute in my time here today i'd like to address three points i think it's really important for the court to understand the preceding procedural posture  underlying proceeding because we have two separate standards at issue here we have the denotable issue which has to do with the dispositive motions importantly the cross motions below on the license issue and then we have basically all the attempts after reconsideration which is subject to the abuse of discretion standard and so when counsel is talking about the mix and matching of evidence and jumping around you sort of ignoring the fact that the parties very early in the case first motion for summary judgment and emit if there was a license they just believe that that license was terminated pursuant to a b want to one because it was their position that that document was express incorporated into the letter agreement in response we and filed a cross motion for summary judgment they very clearly oppose the incorporation by reference issue and they stated they believe that the law permitted an implied license due to the objective facts that were at issue before judge the judge had a very limited record in front of her both parties pushed their chips in on this issue they took two distinct legal positions ok once the judge denied incorporation by reference and found that the implied license was appropriate due to the objective facts in front of her then cross if you spent the remainder of the time trying to take discovery trying to follow reconsideration motions trying to create the very evidence that it should have created before it fired that first motion for summary judgment i think that's important to consider before the court because those efforts are subject to usis question standard as opposed to the  and so those are the two operative documents at the time and once frost sujit lost its incorporation by reference argument which under hawaii law the language in the letter agreement is not sufficient in order to accomplish an incorporation by reference problem it has to be express and it has to be particular and i understand they don't have to be magic words but for us to do is trying to pick in choose based on vague references to the contract and i would say that's my  terms that's absolutely correct your honor and it frustrates you are you think it incorporated some in part incorporated that the entire agreement but the fact of the matter was is the representation of the parties operated pursu minutes wrong and it's not factually supported by the record it didn't happen and and ok well i think the risk of the oversimplifying short what she had was letter agreement and if agreement that we're going to do sign this and by a certain date it would be offered it wasn't offered by a certain day and then the proposed draft that was offered was heavily modified at the risk of oversimplifying shirt with the with the documentation that was before th gave you the right to use the work that they did while the campaign for the district court one found that the document was incorporated by reference the letter focus was on what is the language in the letter and the la letter agreement and this is very important isra sujit hopes to mix and match the term licenses and copyrights as if they're the same thing and not there's a copyright term and it very clearly applies only to ownership there is nothing in the letter been it didn't say you didn't have the right to use the right to sorry i don't know if you are saying that their argument is that the letter agreement said you don't have the right to use this but my question used for the development of a discrete set of work which was the build out of the restaurant and that those plans would be distributed to you just like they were to kitchen designers or engineers or contractors as they were didn't order the building and the evidence also indicated there was something else attached at the time that demonstrated the frost suit he had been fact distribute those works for everybody to use in the project well before they shoot the  proposed b one zero one and the problem is that if you look at the objective facts what's in the letter agreement not as incorporating yeah then those objective facts do not show th h the copyright objective of a non exclusive implied license and we would like folks folks look saying that says you know we don't want architects where they don't have expressed limitations on use or license sure we don't want them holding projects hostage over simple contract because that's that's their avenue they go in in this case we owed the claim we'll thirty nine thousand dollars and said what they want to do was hold the project hostage and amass this big copyright the contract claims have been resolved in the full amount is covered so now that doesn't answer my question that sounds like a lawyer answer at the time the motion was heard your honor there was a skew over thirty nine thousand dollars and was there any the case says that you're talking about is just because you don't pay them money doesn't mean that they're why since he's trans so you can go ahead and build your restaurant but it doesn't mean that there shouldn't be some fair implied royalty license or other feedback well your honor under these circumstances i would say the frost suit you draft in the letter agreement they put it terminations provision in there they place no limitations or with respect for how much did did you pay for that i'm sorry how much we pay for what for the drawing bowings that you got so there was a specific contract amount and then there were some additional services about the total ended up being roughly in the neighborhood of ninety seven thousand because the court had found that there was a non exclusive implied license your honor is absolutely correct you can't meet the last prong which very clearly fires copyright infringement if you have a license then you can't infringe  markings on various documents whether they're trade secret documents i mean obviously a copyright case you have a copyright without the actual putting the sea or the c m i on it but we have a special case here where they put it on there so there's a something that seems odd that with impunity you could remove it would be one thing to use it but it seems like it's another thing to remove it so what you distinguish between the two if there is something to be distinguished sure first of all there was no evidence that any party intentionally removed the copyright management in chief information the representations of f t s council as the skin construct aeration are just not accurate that's not what he says what he says was he took the digital components that he needed in order to address the layout not that he removed for the purpose of infringing on f t s work and the the case is just like they say that you  can't photograph is the best example right if you take what the c m copyright and you take it off and you make a million postcards and make much money and that's you see that's not what happened here what happened here is you have the cases that are talking about the right to copy  reproduce the the sketch ones where you can draw a line in those cases indicate that with an implied license you're allowed to take those kind of privileges in order to you know one declaration and it's it's ok it's right and it's been like the battered about like a ping pong ball and if you carefully read it what he's basically saying is i took the component elements the digital framework that sets up the box on the page where it's supposed to go and i put it there and that's what i did and he said i did not remove their declarations from staples and saying he did not remove the c m i information for the purpose of  the only allegations in the second amended complaint are for removal so awful to be one that's been held and i don't think that issue is particularly appeal as to the question of whether there can be o award wow still maintaining no copyright infringement very clearly you cannot and that is based on the language of section twelve  all of the c m i you cannot have a d m c a phylicia that very first sentence and so if the copyright license he's up held and there's no copyright violation there cannot be a v m c file ation for removal that's one legal point the second legal point which was alluded to is the last part of section twelve zero two which says that the actor must knowingly o and if there is a license there is no infringement there could be a third party infringement that you and it can happen here maybe but it could be a third party infringement under that language and still have a valid implied license correct theoretically that's correct but not you know remove all case you know remove the case which is the only allegation here the actor must remove the c m i and that's where we get to the important part of judge more waste decisions so as to the copyright removal flame which was count five of the second amended complaint we have both legal issues which is the authority and the knowing requirement both of which support the granting  fact her exact language was that frost sujit makes no effort to implicate cotta walkie so but with respect to the other defendants i think it is equally clear in fact the only defendant which there is any question whatsoever of any action has to do with bargaining well let me ask another question that your colleague and opposing counsel it all seems to boil down to a big fight over thirty nine thousand dollars and now you've got attorneys fees ok so let's just say count five yes but you stepped up to the plate talk about if if before the judge ruled on whether or not there was a valid copyright an implied license that was disputed obviously between jaime and and the first sushi correct an there's a copyright why would we have any fees awarded on count five that related to work before the establishment where the determination of five counter motion there is no affidavit there is no declaration there is no expert testimony of removal of c m i there's just no evidence that he asked the question about this for one second if your question is limited only to highway in the operator and owner it is theoretical that they could have because they did receive the information but there is no evidence to show that the manipulated the information or even had access to the computer program which would have gained access into that cad program i do want to make generated his own original file there's no declaration there's no testimony there's no expert witness about cutting and pasting or using the f t file to shine a rate through a computer or digital needs he analogizes it has a painting of glass that he lays on theirs and then does his work there is no competing declaration otherwise that original piece of work was the layer that had the title block and c m i on it so he did remove it and when the defendants asserted they had no idea well let's ask our questions this since ca to walk he received the pricing set which had the title block and the c m i on it and then they started using that later on without that title block at c m i where did that come from one of the defendants had to do it it was either highway in who we know had the file and transmittance it we are in the old save file that we've reference or bar green or j k i r we haro one of them did it and remember where the summary judgment level we should we did not have a trial on and we had hoped to make the motions early so try to get the whole better resolved instead of using a lot of time and money on on discovery but one of the things i want to emphasize the two cents i'm running short of time thirty nine thousand and some odd sense was part of the contract claim that ultimately the party settled your honor but with respect to the d n c a claim that claim carries  statutory of twenty five hundred to twenty five thousand per occurrence and counsels and correct when he notes that it's only a removal case it's not it's removal distribution and use we've talked about that from the outset each and every time they they touch it they use it they already manipulated that's a separate violation and that's what we were going towards the last item i would like to put what are we deciding here what we would do what we would what we would ask your honor his bar green has a potential copyright counter claim that they can reinstitute the cases remained it the only remaining claims in the in the second minute complaint are the copyright claims so the claim that there is not an implied license in there for this copyright violation right yes your honor so in a way the contract claim still remains on the table well that you if you've said that the copyright side of that contract claim remains the license