for example if you go to our brief at page twenty four twenty seven the d v d click on the links there we discuss the content and it will play it for you and see exactly what we're talking about the clock you started what you got  your argument me please court this is a case about the proper interpretation of the settlement license agreement district court's decision is wrong on all counts first section one point four subsection three of the green require substantial compliance with the seems content specifications but the district court read that requirement out of the agreement failing even to mention the term substantial compliance in its ruling second the agreement limits their place license to d v d players that when sold incorporate contractually specified software but the district court excused the players on the ground they have the ability to incorporate the software later on and third section one point one four the agreement requires the care place software interface implements quote the following four levels of explicitness not implied explicit in graphical catalyze terms but the district court excused an interface that implements four levels that are not only different than those four but that operate in a way that is opposite to specified levels so the court  one point one four one point four with four point eight at least each of those sections with no operative effect the principal focus of of this appeal there's also i think the facts are also on the factual findings also to support the judgment and would satisfy the clear air standard but there are definite questions wall governing the contract interpretation which is the primary argument here number one concerns the courts construction of paragraph one point four of the agreement which is where the substantial compliance standard comes from such a such a map must identify content in a movie using the content specifications that are attached to the agreement incorporated in the agreement second court possibly be the proper interpretation of a contract whose operative requirement in one point four three says the match shall be in substantial compliance with specifications what is it took a different provision it melded to another provision hold such a four point eight tested it was omitting mapping in certain specified limited circumstances in which the mapping seem to me that the lower court recognize the next part of one point four three which you haven't mentioned yet that it being recognized by the parties that application of both occasions require thought ability of artistic judgment and the issue it seems to me come down to is that second phrase flexibility of artistic judgment the only way in which you can have any deviation from full compliance i e you still have to substantially comply with that little bit of deviation but only if it's in the interest of artistic judgment or is it substantial compliance modified by artistic judgement meaning you have to be a good stand to a compliant but  theor free to exercise or it is the judgement even if it takes you outside of substantial compliance and so it seems to me those are the two competing interpretations of my wrong i mean that i think that's a fair characterization of your and tell me what we do with recognized that application of specifications the flexibility to just a judgment application specification requires flexibility or just a judgement within the overall goal of maintaining consistency in the interest of artistic judgment and i imagine there could be some case still where you could say this was an artistic judgment you know nothing because then you know there would be some dispute over what really does artistic judgment mean you're allowed to exercise your artistic judgment only so long as what you're removing is critical to an understanding up a plot or something you know it does artistic judgment mean you know you think cigarettes are pretty no probably not you know but maybe it seems to me that maybe that's where your dispute would lie if that were the way the lower court went i don't know what he would do your thoughts on that my thoughts are first artistic judgment i don't believe can properly be interpreted to trump the the active requirement of substantial compliance in this country i believe there to suggest and explains like the requirement shall be is the substantial compliance therefore it's wrong to say i'm just a judgment trumps or diminishes the substantial compliance standard the filters must be in substantial compliance appeared now second what artistic judgment mean the court erred on this too because what he did is it interpreted artistic judgment using the conceptual framework not of one point four but of four point eight movie therefore decides doesn't want to filter for the consume consume the idea of what's essential to a movie that's important to moving the plot or whatever character development that is in four point eight in the all meaning mapping provision which specifies that when it only goes through when you want to eliminate entire category i'm going to allow all violence but clear play probably doesn't want to go that route or not be able to tell movies filter the customers that are are if that the only basis for filtering through which they're entitled to may think they can't chop up a movie and thurber it up in a way to indecipherable it's not going to be effective and you're not going to want that because you can get no royalties right i mean you don't want them to go out of business and be unable to sell movies that customers want because your client gets no no royalty what we're trying to establish a standard for this technology and the standard is that consumers can use it in a matter of the provider no matter the source and they know when they click on the player and they set their settings and they say i want explicit violence removed i want implied substance abuse removed that the playback is going to take all that out not some of it leave some of it in a tick some of it which is unfortunate that the standard is a problem that we have  here the error with the courts idea of artistic judgment is that if it is good thought of artistic judgment in fact it construed artistic judgment by by reference to for a defining art what is artistic judgment the court thought artistic judgment was artistic judgment is only in this contract and one provision which is one point four three it's and it's used in connection of the following phrase artistic judgment in application of the specifications ok what of it let's look at the specifications that  because that clear play the right to say i'm not going to code a particular scene because i don't think that applying a code to this particular scene is appropriate based on my exercise hard to secure it you know your honor i don't believe that's the what what it what it does give them if they want to not code that they have to turn to four point eight and they have to satisfy the conditions of four point eight which wired what first of all it's provision called omitting mapping that mapping this code all right so if they want to not call it well then what it was your idea of substantial compliance when one with someone the in substantial compliance not in full compliance ok i'm going to let me try to explain how that how i think that works so artistic judgment in applying the specifications doesn't mean i'm not going to code movie because i think the continent movie is important to the plot that that's where the courtier artistic judgment in applying the specifications means ok the specifications give me definitions for bunch of content all these content categories and these different levels of content so for example we have implied violence the specifications say implied violence is x and you can look at the definitions of artistic judgment in applying the specifications is  in determining whether something with a continuity falls within or with or outside of the definitions in the specification that's artistic judgment something that the specifications are eighty pages they're very we were designed to be as comprehensive as possible but obviously they can't cover every possible type of content in any kind of movie so you know not all and four point made that's different than four point your honor that's completely different it's conceptually different because the site is using artistic judgment fight to determine whether continent movie falls within or outside of a definition in a spec that's one for artistic judgment in fact the idea of well it falls within the definition but removing content that viewers are specifying that they don't want to see ok that's why for exist for right gives them a special limited circumstance where they can they cannot code something if it's if it's important the requirement that so you say they would be in compliance with this agreement under referring to poor eight by saying i'm going to take out every scene that has to do with violence your way they're not in compliance if they say you know this one scene maybe it has some and testimony from their president it j two four eight eight four what you see is this what is everybody agrees on what four eight means four it means so you code the movie here's how this works you code the movie  supposed to code all the content in the movie that falls within the specifications definitions now when you're done coding the movie if you determine well if i take all the explicit if everything that i just code is explicit violence is going to leave them  viewers not going to be able to have a general appreciation of the new knowledge or not it's all or nothing that's only my isn't that why one point four differs from four point eight four point eight is an all or nothing i've got to remove all of the violence the godfather is now a worthless movie head back and you know i mean at the gap or difference between one point four and four point eight the critical part of the movie that everybody needs there are still there that this is this is this is if you if you interpret one point fo take it when they don't quote the entire category for that movie because it's that category is essentially you got no meaning left for it at all it has absolutely no operative effect if you can if you can pick and choose which things you want to cut based on importance to the movie you'll see that each of those twelve categories has a definition has a rules clarification and examples of what kind of content falls within that category so so for a dockery's to say if i map the movie ok and i the interface and he gets that play back with all the explicit violence taken out and he now has been denied a general appreciation the movie then clearly has the discretion to to not hold up all that explicit violence but it was got to do it across which are pretty limited again you can they have discretion first of all we have to mount the movie according to the spec that's one for they have artistic judgment when there are borderline questions about well does this make a definition of implied violence in th judgment to do to treat those borderline questions of what falls within the spec or not but that didn't happen here this is if you look at the judgment ok the the amended report from the special master first of all he  eight movies that were the sample that issues his discussion of the stuff that was included in those movies is predicated entirely on whether the content was important or not to the plot or character development none of that was whether or not the content was defined as objectionable content or not so it was wrong to say that not coding that stuff is excused by artistic judgment because he didn't even through it into one for ok if he if he was going to look at importance to the movie he would have been analyzing their filters under four eight and in order for them to be excused from not coding something they would have to have not it may have pleased the court what the appellant this asked for here is for you to reverse a federal district judge in florida interpret ing principles of florida contract law that's my problem when the republican interpretation is that i don't see what substantial compliance is actually meaning if i read it the way you would like to read it i tell you have a district court understood it and how i understand it first of all this is substantial compliance in the context of an artistic endeavor of filtering movies this is not how many widgets per hour are you producing pursuant to a manufacturing contract so the idea that's put forward by the pelletier that somehow we ought to measure this quantitatively with reference to statistics and we can look at percentages is a concept that was rejected by the court below it doesn't make any sense in this context no but the question i think we are probing here is is the meaning of one point or section three and the extent to which artistic judgment relates to simply determining what is in or out of the category of what might fall under a particular category or not or does it or is it a broader concept that allows you to do to conclude that all right this particular scene does show some violence but in my judgment i don't think we should code this because the movie requires that scene it's the latter and there is no limitation of the kind that is describing with respect to artistic judgment here it's an undefined term to be understood in its common sense way and the idea only subjective to the point where to pick judgement  yes it being understood that the application requires or just a judgment a little history here is helpful this is in the specific findings of the special master when the parties were negotiating this when when  appellant first proposed well let's settle our patent dispute by you enter into a license with us and we want you to adopt these specifications clear play looked at the specifications and said we can't adopt these these are going to be problematic to our business we're not taking the song maria out of west side story you may have some people in your business who think that's excessively mushy but we're not doing that and we're not taking the light saber duals out of star my understanding the invention properly you would understand the invention properly if someone could look at the specifications before watching the movie and look at all the scenes and say ok how would that work but that's not how the user uses it the user never sees the specifications in fact the seam insists that they be maintained as a trade secret and the user doesn't want to watch the movie and then say in retrospect oh now i'm going to watch it a second time and now understanding how this would be filtered out the side how i want to set my settings the user can only use a common sense prospect do view of what they think is going to be filtered and the problem with not allowing artistic expression is that you get into the box that is created by rigid application of the specification and here's the box by their own admission and by the special ministers finding the scene in the wizard of oz where dorothy says to toto toto we've got to run away because the which is coming to get the dog is classified at the same level of explicitness in the same category as the scene from the movie natural born killers with woody harrelson where they murder the mother and burn the father alive they're both coded at the same level of dishonor parents now think a thing you want to fight for that to procreate right had nothing to do with no but the special master said you cannot interpret artistic judgment in the way that is seen is suggesting without putting clear plate in just that box it's it's living  it you can pick here seen it about which the movie cannot be understood without our because you know what then you wouldn't be outside of substantial compliance you're allowed to exercise artistic judgment and choose a scene or two here or there that is absolutely essential both i was to interpret it that way i was to sign on to the artistic judgment definition contrary to what they would like but consistent with what you would like but i was not to sign on to the notion that substantial compliance is meaningless in the contract and i was instead to hold you to that so i would say you can pick your worth and you can pick your scene but you still ultimately at the end of the day have to be measured to have been in stanch will comply but i think that's right i don't dispute the definition that you're suggesting and that is the one the special minister used and by the would be totally incorrect for the panel to be left with the impression that this concept of substantial compliance was not used in this proceeding we have a special master court appointed stipulated to by the parties with the stipulation that his findings would be reviewed on a clearly erroneous standard that special master made substantial compliance findings which were adopted by the court the idea that nobody looked at substantial compliance i can quote  court to six seven eight places in the special masters ruling in his record report recommendation where he says i find this to be in substantial compliance they properly exercised their artistic j there's a difference between a properly exercised characteristic judgment and after you act through it that they're still from standstill compliant throughout the movie right i mean aren't the two different issues and this is what i'm still trying to appreciate which is the substantial compliance is your view of the contract interpretation of the contract should be interpreted as you shall be insubstantial complying or unless you want to art you need to exercise your artistic judgment and then your pre not to be in substantial compliance if artistic judgment requires you to not do it i wouldn't say it that way the way i would say it is that substantial can and compliance is being qualified by artistic judgment so that if you're using your testing judgment in an objective  subjectively reasonable way in good faith you will be in substantial compliance and substantial compliance captures another concept here that we have with uploads what that really mean then it as i understand it is it as long as you're exercising your artistic judgment you don't have to be in for a potential client or be custom play specification as long as the reason you're not complying i e not mapping theistic themes is because of your artistic judgment  yes i think that's one way to describe it it means something else as well sometimes this is a human process the process of filtering and people make mistakes and there were instances in the course of the trial where people reported poor people mistake tell us about it we'll go back and fix it but that's a mistake but you're still in substantial compliance it's not like you've made an artistic decision oh that's critical and i have to leave that in it's just a mistake but you don't have to be perfectly in compliance you can make mistakes and still be in substantial compliance that's why it's important to cross reference this whole concept to the mapping dispute resolution clause and four point six that is the clause that the parties set up to deal with disputes about the maps and in that provision it specifically says that what we're looking at what we're judging here is whether the filters were created in good faith that's the word now i'm not saying that's just subjective good faith that is an object of an a subjective good faith standard but that's what you're being measured against are you actually sizing your artistic judgment with good faith if you or your is abstention compliance are you if you made a few mistakes maybe so but you can still be in substantial compliance i understand the question to be then to which you're allowed to are exercise your artistic exercise it on because you used it to trump your need to be and the potential compliance with that that's reading i think a conflict into those words which does not exist in the agreement those can be read in harmony as as one qualifying the other not in some conflict with each other but all of this and to get to your point about did we exceed or to stick judgement all i can say about that is that is a factual finding and it led the course of the special master to say in a court to adopt the following findings of fact clear pleather quoting clear play filters allowed movie watchers to remove some objectional content while maintaining the presentation in artistic quality of the movie including the plot emotion and character development quoting again from the special master mr chief witness testified that this seems method of applying for five point five that's at the specifications ignores the context of the content the type of the plot the character it audience and even whether a person would be able to comprehend the movie which led to special master to make this conclusion and i quote again indeed the reality is if the agreement were interpreted as  urges the result would be filters that create a movie watching experience that could be of no interest to clear place customers that factual finding is critical here because it is a reality that the special master looked at the movies filtered the way clear play filtered them looked at the movies unfiltered and then looked at versions of the movies filtered the way that is seems says they ought to be filtered but you know part of part of what you just read strikes me as the special masters but not simply defined facts but to reform the contract to an agreement which he perceived would be more realistic agreement were clear played to have entered into it almost seem like he was he was concluding there is no way i can construe disagreement the way a new theme suggests it should be construed because no nobody in his right mind would sign it that doesn't make any sense there's got to be some artistic judgment there you've got to be some judgment calls made in this agreement so i'm going to construe it differently at it but the question is it in my mind is it is that a legitimate matter of fact finding or is that a an inappropriate rup formation of the contract that's not called for i wouldn't call that fact finding i would call that a proper application of florida contract principles you look at the context in which an agreement is created what is the business to which this agreement relates and you interpret the contract the plain language of the contract in a way that is consonant that is reasonable in the context in which the contract is created and so when he's faced with the question what is flexibility of artistic judgment mean as i look at these words on the page in the context in which they appear in the supreme and it's completely appropriate for him to say what are we talking about here we're talking about the aren't artistic endeavor of creating a movie filters if i interpret it the way to seem says i should interpret it it's nonsense and scovell the kook it produces something no one would have any interest in and no one could understand what they're that that language was not in the us and the court found it not to be ambiguous the cortege or reduced dramatically yes it's always a legal interpretation as to whether or not the language in a contract is in big us so we could look what the district court would do would not knowing with the district court would find it to be ambiguous or unambiguous he could know what that legal conclusion would be made findings of fact about the parole evidence and said it code these movies that they were watching in compliance with an eighty page specific all they were given was this one page document with a category that actually coding the movies in accordance with the specifications substantial compliance is not the job of the movie watchers there are two levels of secret or i need your help there are two levels of people involved here there are the so called filter developers who are full time people who are expert in creating filters there are movie watchers who in the process of revising the filters consistent with the twelve categories in the four levels were assigned very specific projects to capture certain con content that the filter developers were delegating a second look at to the movie watchers so they have a delegated subset of the larger function being performed by the filter developers but in fact every scene in every movie was coded to one of the twelve categories and one of the four explicit levels it wasn't done by the movie watchers they're performing a narrower function and that the filter developers will have done will have and with the use a special master found a very sophisticated computer software will have which had all those well factories all four levels so i probably ought to say just a word about the other issues in the case will that have been the subject of the argument so forth there is another set of issues that were tried not to the special master but to judge hoc relating to whether the software and the players a function the way that they're supposed to under the agreement judge huck found as a matter of fact that the players incorporated the appropriate software contained or appropriated the appropriate software and he also found that the that the misread the word import parades and he misread that word implements those were stipulated to be unambiguous terms it terms of them according to their plain meaning they want to say well incorporates can only mean  the status of the player at the time of its sale and judge chuck said no that's a description of its function what does it do does it incorporate this software that's exactly what he found was inaccurate when he said when he says that everything every every segment is coded using a category in level to the spec what you should appreciate the events that they identified are assigned a category and level from the spec that's true but the problem is there are seven hundred objectionable content events and eight movies that they never identified and didn't go to draw so those one assigned any category so when he says that the movie watchers in the field the developers all the content was assigned the category level of the spec he's talking about the ones they identified and considered to be objectionable they left the  was that there's seven hundred more than half double what they did identify it was not identified and other than a few instances they don't challenge that the unidentified content indeed testified this was just attorney argument when a special master can certainly look at the one with the neat and specification look at the in the clear place that occasion and say don't anything specification leaves me not having a clue what this movie was about and well why good and they really shouldn't be held to it ok the point is they're required to substantially comply with specifications you can't read that require remember the contract because they argue that a customer might not like the product there was no evidence of co in the advertising which is in the record that it's going to skip and remove the violence and i click on my interface to remove the violence because i want ice my four year old wants to watch a movie but i only want to let him see it if the violence is out and the movie gets played back and it's full of people being speared and heads chopped off and got a good night's which if you click on our corresponding brief you'll see all the extreme violence it's left in there i'm going to be pretty disappointed as a consumer but that's what subject t