police records and counsel my name is tom payton i represent why is bill i'll probably refer to that just for habit as y s b this is  a me this is a infringement case over architectural works i will cover after introducing the parties infringement in the subset of  license breach of contract in attorney's fees those are the issues covered by the three briefs i will try not to just simply repeat the briefs but highlight it's built is a design builder of both single residences that they're all generally residences on not there are some commercials commercial property but when  doing clusters of houses which is the example here it makes for arranges for compatible design of both style and expense generally speaking the expenses middle range to high range and they pride themselves in materials and techniques  appellee the defendant in our case is the parents are the parents i think the court is is quite familiar with the facts you make you can use your time any way you want i don't have a lot of time you wanted a substantial reduction in cost below the estimate it's my understanding that you need to prove in order to win here that you have an ownership of a valid copyright yes and that the copying of the constituent elements of the work infringe better original so we're talking about access and substantial some similarity would you agree yes and nobody's arguing about access no but we're really talking about substantial similarity well we're also talk yet yes that's the princip issue so you've got to prove both extrinsic and the intrinsic certainly we also have to prove the copyright and there's no what challenge you make to the intrinsic findings ok i really didn't interpretation in the application of the copyright act to the facts yes there are some questions about interpretation or creation of the facts in the first place and yes certainly there the facts are documents and in our case the building had not been built so the documents had to be the drawings the models and the sketches that were made from the drawings is exemplary so in any case in a sense lee any appeal there will be some findings of fact were prepared and we at least tried to show that they were not substantial and and substantially supported by the of this house and not a complete review of the evidence and trying to replace this or judged opinion with regard to substantial similarity with our own opinion and that my reading the case suggests that the difference is particularly strong her particular appropriate when you have intrinsic similarity is used because it's so subjective let me let me get to the intrinsic test then there still has to be support their house to be support in what the judge rusty in found  the on the intrinsic or the discussion of the elements which is to what that test applies we had an refuted proof of a number of different similarities in fact the entire testimony and evidence was of comparability there was no refutation we had one expert and three witnesses one being the defendants mr washburn who conceded that this was substantially comparable there is no testimony when i would have been cited in your brief because i did not see that and based on review of the evidence by the district judge he came to a totally different conclusion she she  very very specific things and said it's very different on the bottom floor you've got to the balls are moved you've done something entirely different that you've got a lot more balls that helped experts said out that help make it cheaper than having an open area feel so where's the clear error in judge rustin findings on intrinsic there is no adjustment to make it any more open and it's clear on the right there is no adjustment to make it more open no they didn't they didn't change the wal in the in the basement for example no the first floor they added a room in the basement her description of let me address this one first let me please address the lack of evidence accumulation of elements for the individual elements intrinsic as do the overall impact ok you are ok and i don't recall you even dealing with that in any material  she begins by saying well there are objective similarities no question butterfly roof you look at the through the front view looks a little different but you know it looks sort of got the same sort of sort of boxy feel i she acknowledges all of that and then tells you very specifically why she thinks that's different she does in both cases the extrinsic in the intrinsic are brief addresses both on the intrinsic she has found it to be substantially different intrinsically because it is an application of the original design of changing it from an artistic and expressive original to a utilitarian and cheap or copy that's what she said on page five and there is no case that says if you can see if you can see the original and the copy whether it is whether the adjustments were made for economical purposes or not it is  extrinsically comparable intrinsically comparable and in the court's view there is a case cited for the proposition that merely saving money and changing things does not make the design different and that's arthur rutenberg there are no ninth circuit or court of appeals decisions that we can find either way there's nothing cited on either  side but i think those do not help you if that is actually the truth and there's no legal basis to suggest that the judge er we're only talking about then after a three day bench trial that the judge somehow clearly erred in her idea about what the facts were that's why you've had the questions you've had as i understand that's why i have had the questions i mean she says there is no intrinsic similarity the architectural plans have a different concept and feel airy light structure focused on is that a value rather than utility as a dwelling new ones more utilitarian pragmatically focused incorporated a closed wall and more confined floor plan driven by cost conscious and practical considerations yes and frankly i look at that and i say what is the clear air first of all there are no that subset that you mention your honor of straight lines i'm sorry saw that lines and distinct room functions is not present in the documents it is comparable in both cases or it's true in both points you try to make is the butterfly roof which is a style you get a room but i'm looking at pictures right now exhibits one four three two four six and one seven three  and they don't look anything like the roof design is very different one looks like a nice healthy butterfly the other looks like a butterfly with a broken wing one has two levels one has four levels  i don't see how anybody looking at this would say if one is a copy of the other or one is substantially similar to the other in the design they're both there well i'm just looking at the docking right now right and the plan that this full of references to a specific copper bill comparable or studies of comparability both on the plan view as well as the elevations and if they're not what the trial was about three day trial you put your evidence on the other five but it's evans on the judge next item or discretions and i looked at the plans heard the testimony compared the photographs in the models that were present find that there is no intrinsic similarity of actions and that there is also no basis for saying no authority for saying that if the distinction is because one is definitively and purposefully cheaper but that's not what you did that wasn't yes she dated both nations as to her intrinsic finding that one is artistic and expensive than the other is utilitarian and cheap but they both follow the same model the second one was divined or devised to try to replicate the first one deliberately and used the drawings the original yes she also said that the well i think she said there was copying but the evidence was quite clear there was nothing that said there was not agree there are some copying but  have to start over again so they did effectively start the footprint right is the footprint of copyrightable to be part of the it's part of the copyrighted thought drawings is done to use the same footprint to design a completely different house that would violate the  law no i don't think so it would be evidence perhaps of partial copyright infringement but the only testimony about the remainder of the drawings was that it was connected to the demonstrated why it was wrong the evidence the defensiveness stated that the footprint was necessary or at least it would take a long time to get permission to do it copyright infringement claim the district court clearly applied the correct analysis the two part test there's the extend sic part in the intrinsic part and the court covered both of those the district court pointed out in particular perhaps for most prominent similar features between the two designs in question and  extrinsically looked at those elements namely the butterfly roof the footprint the east elevation and the contemporary look to the house and in each of those cases the doctrines of merger and send they saw fair if i'm sure i'm not pronouncing that right but those two doctrines explained the similar features between the two designs and i would just point out that both designs are contemporary as the district court also pointed out and such things like the butterfly roof are there are part of a contemporary look for a house  with regard to each one of these extrinsic elements they are not identical palance have tried to use language that tries to capture  have a physical copy or they were given a physical copy of schneider plans but they weren't in and at the editable format and the only thing that was copied per n was the footprint and even the footprint in the standard plans is not identical not verbatim as the appellant's used that word it is different and you can see stand stayed within that footprint because they felt that was the most practical thing to do because the land use permit this is on a steep slope and changing if they went outside the footprint it would require a new permit process and they may not attain that permit but the footprint also just before i leave that is also heavily dictated by the lay of the slots as the district court pointed out correctly when i was in the location of a house situated on the lot is when an idea is so closely related to the expression of the idea that the doctrine of merger kicks in and provides a very thin thin level of predictability in those situations especially when the expression is limited to only a few options such as a perfect example is the  footprint i shift to another subject yes reach contract district judge found there was at best an agreement to agree which is unfortunate under washington law the poet says that the judge had in mind a different contract and they were pursuing this case that the agreement was that you would not hire someone else not that you would hire us why why a speak but you couldn't hire someone else could you comment on that yes interesting lee sleeting so he just complains the request for relief is this they request that well in their requests for relief they say that  schneider plans can't be shared with a third party and that the schneider plans can't be built by anybody else except why ask built by the time they reached trial they made the allegation that the huang's can't build any plans on their property in the district court question that goes in council during opening statement to really get that clear and asked opposing yes and i said that's yes to what that the agreement was that you can use another contractor to build correct that you can't use another contractor to build any plants on the property so they  argument is really the inverse the same thing as saying that i mean if if the wayans are not obligated to hire why yes to build a house on their property then if so facto i think it means they're free to hire anybody to build a house on their property and i don't think it is i mean it would be obviously a punitive and liquidated type damage to say that the whole ings wouldn't be able to use any builder to build any house on their property unless it is why yes and the pellets argue that that should be inferrable by these letters of intent that there is no plain language in the letter of intent that says the  decide not to hire why yes they can't build a house on their property ever what about the agreement when we do a paragraph six this one says of the contract god has to be signed before huang obtains title it is not a condition preceding on him in taney title he obtained title without getting the contract so is he in violation of this agreement this was a very this was a very awkward arrangement and you know in hindsight why as we would have been better advised just to a purchase of the all the property outright and then said here's what we're building do you want a house or don't you want a house that they didn't do it that way but they did try to tie it in a particular way and said before you get title to the property you are going to obligate yourself to sign a contract with us and if you don't get the contract we'll give you back your money on the on the property that's paragraph seven is just the property does not get subdivided for some reason that the city does not approve that then when gets their money back they're down payment of two hundred twenty thousand paragraph six you're right hindsight being twenty twenty why yes should have signed the construction contract in in conjunction with transferring the land sure but that last sentence says this contract that is so that the seems to this seems to say you if you're going to go over and buy property from my aside you have to sign it you obligate yourself to sign a contract with us first before you obtain title that would have sort of the sort of shored up the by his father in law his father in law right who lives in israel who's totally removed from all of just again it's an it's an awkward it's an awkward relationship but why isn't paragraph six and forcible that the district court addressed that paragraph before y a s got around to signing the contract i mean the contract never got signed it was negotiated over a period of a year following the lame transfer but but an ok it was ignored was this a point at the bottom of page seven lines seventeen to twenty yes the district court referred to that language that we're looking that there in paragraph six but again just pointed out that it's a letter of intent promise to promise language and it's not enforceable it seems to me that this court suggests in both instances that these are merely agreements to agree correct correct so is the determination of an agreement to agree rather than a contract is that a matter of the noble review in our court or is that an abuse of discretion i believe it's a mixed question of law and doesn't answer the question of can i look at this and say this is an agreement to agree or do i have to say the district court had a chance to listen to the parties look at the language evidently the language is not on its own clear non ambiguous and therefore accepted  terms and additional evidence to determine what it was do i owe that terminations some discretion that's my question yes your honor i believe there was plenty of testimony surrounding the letters of intense both of those documents and to some extent those documents speak for themselves in there but well they speak for themselves and i can if in fact they speak for themselves and they're clear and i am unambiguous then it would seem to me that i would say these are did an overview because then i can determine what they are as well as the district court can but it seemed to me that in this particular situation the district court had to if you will look at the letter of intent look at this i s i guy l l c purchase agreement and take testimony about what it all meant or didn't mean and after doing that came to the idea that it was an agreement to agree which under washington's laws not enforceable is that true that is true that just a court definitely listens to a lot of testimony by especially you've also for regarding both of the agreements and that's  mean my worry with all of this is what is the standard of review i mean we looked through the copyright plans and we looked at whether this was in trick sick contract we determine that novo except merely agreement to agree that determination that's why i ask you the question is that a dunno vote is that a question of law or is that a fact question it's a little next but i would say the weight of it is de novo because we can look at both of these agreements they especially the letter of intent dated april sixteenth specifically contemplates a future obligation to go i think just of course right this is an agreement to agree but it says if we fail to agree then you don't get to you don't get to buy the property the real property that paragraph seven regarding refunding the money is just if i aside i got that i think you're correct on that so i thought i'm only concerned about paragraph six paragraph six that last sentence this contract is will be signed before going obtains title property yet yet i think i assign i would be in a good position to say hold on i'm not going to sell you the property because you haven't satisfied this condition yet but i aside let the property go and if i just named comment very briefly inside of a few seconds the pelleas would request attorney's fees on appeal for the same reason as they requested them in the district court there's five fogarty factors that are examined in a copyright infringement case in regards to attorney's fees and the biggest one that i think is relevant to our case i guess the biggest two are the fact that these two plans are quite obviously not substantially similar with regard to protected elements but equally that the motivation behind why it's is used for the copyright it was all orchestrated after the fact and it was obviously done with the intent to bully the whole wings into signing a construction contract and that that's not promote the advancement of original art did i sell them the sale of the the property without verifying whether the condition in paragraph six was satisfied y s is not a party i understand so they're not a party but they may be the only one with standing to enforce this  why s b is a party to the contract as well maybe y has been needs to sue i s i for selling them the property without satisfying the condition precedent yes judge it's not going to happen of course not but that's that they emphasized what a close relationship they had and so why is the certainly do that i as i was selling the prop i'm shouts out a slightly condition i'm sure they all expected that that was not a waiver well if they expect that it was not a wavered then the why isn't the district court right that this is just an agreement to agree because an agreement to agree in washington isn't forcible to the extent that it's partially performed that that was what i don't or the law yes and it was where i didn't see it it's in both of them it's in our brief below before the district court yes not not up here i realize you want to throw in a new argument here this is not a new argument it was it was it was argued below it's part of our original trial three i didn't worse the worse the partial performance a tween y s b and the wangs the arrangement to pay for the design and the payment for the design that is the one contract calls for  and i think we're talking about the first one the design contract calls for well we're talking about book one contract calls for all specifications in plans or if they couldn't make a deal with with why s p or higher why a speed to prepare or build the plans that were part of the that resulted from the first question  pretrial stipulation you set forth exactly says rob and i were on behalf of kevin for not obligate to enter into a construction agreement why as they were obligated not to enter into such an agreement with anyone else either with or without the original plan and that's to some you might just contract claim is kind of a continuum of different variations i see what you're saying it wasn't raised as something that we didn't argue about and indeed there was an agreement on that point below that if indeed there was part performance he was still or if you didn't discuss any of this you make a passing reference to part performance without any explanation whatsoever i frankly didn't have any idea what the part for me was all or mr so for is painted as is belligerent and hostile because he was trying to force a contract there's no evidence that he intended or expected to do any contracting with someone for a different design or for his design at a steep discount at that i mean he had agreed with the son all the way through the the origin of the agreement between y s and the whole way was predicated on the business plan which was why yes would take care of all of the construction that was the underlying essence and when this failed when the parents were unable to reach a deal or didn't want to reach a deal  plans using the estimate of the original plans or something consistent with the estimate or we will try to sell your property and the use of your plans to the best of our ability that is not abusive we were and why as we did not hold out for a contract he was us or i think the phrase is the highway or something to that effect he did not we didn't leaner y s did not lean on kevin to make the contract in the first place it p twelve the exhibit in exhibit p twelve shows he wasn't there are two main three main issues all interrelated although one is a contract and one one is a contract issue not as a copyright but they're obviously  related the copyright claim is i think supported by virtue of the fact that we can and the evidence is that the original was copied off and you're really way over your talk westmead i was just nervous as you've got to s up and tell us what you'd like us to do i would like you to reverse the decision on the copyright infringement and i would like you to at least agree with us that there was a reasonable