if you morning they please the court and brian voice on behalf of the appellate court by such the group we have here a case which is not a federal question it's a good old fashion common law state law state law common law issue on correspondence there's other evidence in the record there's other communications but it really comes down to three pieces of correspondence the first was in march of two thousand and one in which after communication between the parties worldwide subsidy group proffered a proposed contract that was somewhat detailed changes have been made to it more referenced in the cover letter the contract wasn't executed the parties had communications after that but there was an execution and the way this business works is there's a july thirty first deadline every year that has implications as a result in july twenty second two thousand and one will lead subsea groups another fax it was a letter but it was faxed saying with regard to the july twenty second so your theory is that they were on notice that right to protect these rights when you hear back from you by that date and well and did right yeah i mean if the statement somewhat is somewhat equivocal in that they're saying at some point we're going to provide things to different agencies now in fact what happens on the thirty first you don't have turned over a signed agreement from on the thirty first but what's up so you had to make filings with the copyright office on that day and what it would prefer to do it with a signed contract in his back pocket even though it didn't have to produce that contract at that time the pressure to do it you know with a signed contract in his back pocket right didn't get one but it got the next best thing which was his e mail on the thirty first july twenty second communication it says we still need to receive executed originals of the contracts previously forwarded to your attention now i understand what you say given the timing in the urgency of it that they were moving forward without it but what is any indication  eventually received no your honor we do not we are not aware of that whether they exist or not we suspect they may exist but why such a group does not have them we also have been able to to do discovery to ask it is never said that they do not exist we don't have them though and there was a footnote in our briefs explain the reason why there was a dispute among ownership at the time that these might have been returned to world wide subsidy group worldwide subsea group was being run together with there are these pieces of paper at the same time that they said we're going to proceed in reliance on their terms and they said please go ahead so the question is it really that terms which is what representation agreement that was provided in negotiated there is a form selection clause which the district court said if that's effective in their jurisdiction then we move along with everything else but because it's depend the district court said it's dependent upon whether or not evidence that that there was an agreement here in the july thirty first e mail responding and again how we say this the july thirty first e mail in the context right of referencing incorporating the july twenty not just a very significant reoccurring deadline but also said until we receive such a originals or comments we will proceed in reliance on the terms set forth previously and then you get to please go ahead right well yours i mean yes of course the july twenty second letter now the thing is going to be second letter yes they're saying we're going to proceed on on those terms you're right and perhaps that's enough but i guess in upon my mind what locks it down is when we have a statement from the other side of the saying yes please take all necessary as i mean that's the context and they say he's ok but so when he gets up he's going to say that you skipped again the please go ahead part it certainly cuts in favor of your team but it says fifa is interested in testing yes that's equivocal language well and here's that and clearly that's what draw drew the attention of the district court verb testing ok and then the question is what testing do what does that mean and i guess if i understand why that might draw that inference but here here's the thing is that in the july twenty second facts what i substitute was saying we need to get the executed contract because at some point someone's going to ask for it different agencies me ask it but we're going ahead anyway to make these filings so that we don't blow the july thirty first deadline because if they didn't make those filings with the us copyright office they would have been forfeit for fe a contract is the notion that they could have gone ahead and try it out without there being a contract and and it has been told earlier that essentially you can't do that because you're not going to be able to  actually in the end accomplish this unless there's a contract in effect they're saying i mean yes i think in effect yes that is what they're saying they're saying we're going to needed an executed contract at some point the fact the matter is  different is that distribute these royalties have different rules on those things and frankly the u s copyright office does not as a bright line rule insist upon a written agreement between the parties the issues and wh substitutes so i don't want to mislead anyone here in that regard but what will i substitute was doing this trying to get the signed agreement in case it needed to produce what i don't i think that's clear from your briefing but i have another question about please go ahead with the necessary steps because it seems to me if you if you go on those two sentences together we're interested in testing your services and it's that's juxtaposed right next to please go ahead with the necessary steps the necessary steps meet might mean hey please go  preserve our rights for us you know do the these filings and but it might mean we're interested in testing go ahead with you know send us something that will be a not the contract we've got because otherwise we would sign it and send it back to you but send us something that would what memorialize an agreement to test a trial period but they didn't there's nothing in here that says those words that you just said it says please go ahead with the necessary steps i'm trying to figure out what the necessary steps are your position is that the necessary steps are outcome would be the end of something that's the part i do understand that's the part i do understand ok but it but i'm trying to read it in conjunction with this word testing and it just strikes me that testing is a tough word for your team so what's your strongest argument the testing doesn't demonstrate and sort of quizzical nature to this response it's not in isolation there is the rest of the response there is the next sentence that says please go ahead and so i mean we've talked about and we talk a lot about these two particular emails if we documents really demonstrate mutual sent because we're not clear on what the terms are maybe one way to look at it is that it had some uncertainty about whether they were going to go ahead and do and obscure in two thousand and seven at one point they say oh you know proceedings now looks like they're going to start it is it turned out they didn't but they kept them apprised what was going on the proceedings themselves didn't get going for two thousand and twelve which is when this lawsuit arose because beef is that we don't want you doing this now i like that argument a lot better i think that's a much better argument just saying an ok could you could you what about what about the july twenty second tax we have made all the program registration so we've discussed with you what about the discussions ar of your argument premised on the discussions and so the last part is any part of your argument premised on the notion that there were other discussions well i mean we have certainly there were other discussions they're not they're not documented like you know these exhibits are of course but yes in the declaration of rogue laws which was filed and it's in the record he describes the discussions the parties had and what those discussions were essentially ok what is your programming well we have this ok when it was a put on ok to do is get these people money because role the law has had a criminal background they freaked out and said we'd rather take no money than work with you is the are the declarations that the discussions such as the evidence that we have of the discussions that part of the extensive evidence that ought to be considered yesterday that wasn't a question i'm just trying to bring that to a close thank you counsel here from opposing camps you are going to the questions may have a minute or two well yes we'll put the afternoon your honour's may have please the court my name is margaret dale and i represent fee for your honors the july thirty one email from feet does not demonstrate demonstrate that they whine that they agreed to have representation yes i don't think so i think testing your service is ambiguous as to what that means there were discussions apparently before between some the necessary steps and keep us informed about the proceedings and the outcome so there doesn't seem to be any doubt that they were agreeing to have representation perhaps your honor but what we're talking about is whether fifa can be sued in california under the represent understand that i was just trying to come in steps all right so your argument isn't that they didn't in some respect have a meeting of the mind to the fact that they were going to be represented by this group before the copyright   the march agreement references world wide representation and i know that the july two thousand and two facts references a deadline in the united states but i don't think that we should be here reading into the these few pieces of paper we have and filling in the gaps of what exactly was meant by we're interested in testing your services for the so please go ahead and take necessary steps i think judge christian said well couldn't they be saying send us something that is more on a test basis again i don't think it's our burden to fill in the gaps here if there are there is not there is not mutual assented where there is not an unequivocal or that there's not but  can i ask you to respond to the opposing councils argument i think is a powerful one what if the what if the girls were reversed and they had gone forward to protect the foes right and raef and then with relying on these three seem p said yeah we want you to go forward and protect our rights i mean that does and they are fully clear to me so what's your response to that please my response to that is it says keep us informed about the proceedings and the outcome and there are absolutely no substantive communications between that point in time so if they hadn't done anything they could say well we didn't keep you informed and therefore you didn't know what we that we weren't performing i mean in that when the shoe is on the other foot for the equitable or stop will claim we didn't know we had no idea what they were doing but here i think your argument would be a little stronger if it weren't for the fact that the july thirty one e mail specifically referenced us the july twenty two facts so i think we have to start with the july twenty two facts because that's what i was specifically referencing and when you go back to the july twenty two facts it says you know we had prior discussions with you about our services we have we sent you the contracts right get us the original back but there's a deadline coming and so until we receive the original we're going to go ahead and proceed to protect your interests based on the terms of the contract that we sent you and then the very next communication all right we're going to talk about your facts that you sent to us please go ahead with the necessary steps so those two together seem to indicate to me the fever was referencing go ahead with the registration to protect our interests go ahead and represent us is a fair interpretation of those two communications together and that i think it i think you could argue that it is a fair representation of those two communications but i don't think it goes back to the march two thousand and one representation agreement i don't think you can read these two documents in july and say they were talking about the unsigned and my ad interested in testing their services relating to the retransmission proceedings but i don't think that you can say that that is language that therefore is acceptance a mutual acceptance of the terms of the march two thousand and one representation agreement of council to just stop there then if if that i mean i understand your point because it doesn't say we accept right we have to do some reading and but what do i make then of this please go ahead with the necessary steps and keep us informed please go ahead right go go ahead in terms of testing we want to test your services so it seems to be indicating that they go ahead with the program given the option of going and some other bases your honor it says previously forwarded contracts in plural and we the entirety of my adversaries argument is based on the fact that these contracts are actually one contract the representation agreement that was sent in march of two thousand and one so let's say that we read the necessary steps and it's unclear as to what whether necessary steps to keep us informed refers to testing of services or necessary steps pursuant to the contract that's reference in the earlier facts do we then look at the expense of evidence i'll ask you the same question that i asked opposing counsel do we look at the fact that there was in fact representation and all of these  and it's not reasonable in our view to infer that fee for agreed to a contract of this many years duration by an e mail that made no one record no reference to that agreement and that supposedly documented whatever deal was in d for the term that you say three years and then we don't need to do it anymore because it wasn't a permanent commitment i just i disagree with that logic i think that there needs to be  more clarity about what the terms of the agreement were and i go back to this period of time between march and july when we are all potentially assuming that the only contract at issue that we're discussing is an unsigned march two thousand and one agreement when the language of the later correspondence also references multiple contracts and i think that is further ambiguity your honor about your answer your question judge about the three three six and the declaration and three four zero and there is not discussion in this declaration about you know conversations that were had over time between  five that said dear that had their name on it and said your client they did but they do not have any they state they just do not talk about the how the how the proceedings are going they talk about changing contact information again there are it's just a bit a very generic and vague statement in a form notice about of change of contract information none of them specifically identif as a client none of them indicate what filings had already been made follow up on the request for an executed contract or address royalties that might be sought from sources other than the united states copyright office as the district court found below fee for therefore quote would have had no adequate means of learning of ws g s performance with reasonable promptness insert certainty the lack of any communication direct by keeping feet informed of developments for over ten years following this july thirty one two thousand and one e mail we think further demonstrates the implausibility an unreasonable  questions about it just a couple quick points based on what just came up there first let me remind the court that the district court had no problem with the issue of whether or not the july communications were talking about the terms of the contract but way back in march the district court's problem was the one we've been talking about mostly here which is were the july communications constant did the gleick indications constitute an acceptance should they be legally held to constitute acceptance so just bear that min d the first round here there was no question about oh yeah ok the these clearly are talking about the margin agreement if there is an acceptance here the district court had no problem saying yes the terms of the march agreement hold and basically said and if they hold there's  the other thing is just very quickly about this reference to contracts plural in the july twenty second that's because there's a contract and there's a form now when the person who wrote this wrote it they said contracts prole because there's two separate pieces of paper there's like a two page form which is the first thing in decoration he does explain again i i think it's clear from the record he does explain that there were communications some of them were form letters in a sense they were sent to everybody but others were not and they were all specifically addressed and during that time period there was actually really nothing to report because the proceedings were going on i'm going out pretty soon in washington go to some of these same years because there's still an issue we can measure how much fun that is this is a process that just gets delayed in some  says that this exchange of communications doesn't make a deal in the real world people are going to go nuts saying well wait a minute if this doesn't constitute a deal then what do i know if i've got a deal or not and i think the court  what you have to sign a piece of paper i beg your pardon the short answer is when you get a signed piece of paper well yeah and unfortunately the way the world works is you know people just don't always get to that even sophisticated lay people and frankly a next case on the calendar is fourteen dash six zero zero seven nine