text:
Domain name - Domain name registration - Bad faith - Competitor using domain name - Identical - No legitimate use - No trademark - Common law trademark rights - No intent to use name - No fair use - Application of United States laws - United States trademark law - United States common law - To announce litigation is not legitimate use.
Complainant is an electronic publishing and electronic book distribution company. Since at least as early as December 9, 1999, the geniebooks.com name has been used to refer to the geniebooks.com business in contacts with third persons. By January 7, 2000, a deal was being closed on behalf of geniebooks.com with a major software publisher. On December 8, 1999, Complainant submitted a reservation for the geniebooks.com URL. However, the reservation was not confirmed and Complainant was not aware the reservation had been unsuccessful.
Paragraph 4(a)(i) requires that Respondents domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights. Respondent contends that Complainant has not met this requirement because Complainant lacks trademark rights in the geniebooks.com mark because Complainant has made no showing as to any trademark registration.
Since all parties are domiciled in the United States, to the extent that it would assist the Panel in determining whether Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel will look to the principles of the law of the United States. Under United States law the fact that the Complainant does not have a registered mark does not end the trademark or service mark rights analysis. Actual use in commerce establishes protectable trademark rights under United States common law. The "use in commerce" standard requires (a) a bona fide use of a trademark or service mark in the ordinary course of trade, and (b) not made merely to reserve a right in a mark. The evidence shows that the name used is identical or confusingly similar to Complainants mark.
The evidence presented shows that Respondent never attempted to use the domain name in connection with offering any goods or services, nor any business of any kind. Respondent does not deny this.
Respondent offers two asserted "legitimate" uses. First, he says his ownership interests are superior to Complainants in the geniebooks.com Corporation. Second, he urges that the use of the domain name to advise "John Does" of the litigation is such legitimate use. Neither basis is appropriate.
To allow a dissident shareholder or purported shareholder to appropriate a domain name of an existing corporation is not fair use and is not a noncommercial or fair use without intent for commercial gain. Respondent has other fora for addressing the respective ownership rights to the domain name, such as in the Oregon shareholders action. Judicial procedures and other procedures provide perfectly adequate means to perfect service and to advise interested parties about litigations. Adoption of anothers mark as a domain name in its totality is not appropriate or required to provide such notice.
The evidence presented by the parties demonstrates that the Respondent did both register and use the domain name in bad faith. At the time Respondent registered the domain name, Complainant was using the mark geniebooks.com corporation in direct competition with the RoxyBooks.com corporation. Complainant had used the term geniebooks.com in connection with outside persons since at least as early as December 9, 1999. Respondent was aware of this use.
On January 14, 2000, Respondent was sent a copy of an email from Mr. Van Dyk to RoxyBooks.coms president, together with the draft agreement, using the term geniebooks.com. On that same day, Respondent, in bad faith, registered geniebooks.com with Register.com, Inc. in his own name. Respondent had no intention of using the geniebooks.com name. Rather than any legitimate use of the name for Respondents own business, the use was in bad faith to try to resolve a corporate management dispute at RoxyBooks.com and to keep Complainant from using the name in a competitive company.
William E Merritt v. Geniebooks.com Corporation, RoxyBooks.com Corporation, Christopher R. Van Dyk, Roxann Caraway, Ed Hutson, Jim Tate and John Does 1 through 20.
Walt Disney Productions v. Kusan, Inc., 204 U.S.P.Q. 284, 287 (1979).
Hotel Corp. of America v. Inn America, Inc., 153 U.S.P.Q. 574, 575 (1967).
Campagnie de Saint Gobain v. Com-Union Corp., ICANN Case No. D2000-0020 (WIPO).
Frank Wagner & Son v. Cindy Mahan a/k/a Cindy Maham, an individual, Case No. D2000-0261 (WIPO).
Complainant is geniebooks.com (hereinafter "geniebooks.com") a Washington corporation, with its principal place of business in Seattle, Washington, U.S.A. Respondent is William E. Merritt, 1431 SE Knight Street, Portland, OR 97202, U.S.A. (hereinafter "Merritt").
The domain name at issue is geniebooks.com registered with Register.com, Inc.
The procedural history of this dispute is set forth in the Panels earlier decision allowing Respondent to file a response even though the time to respond had passed. This was because of failure of proper service. The history will not be repeated here. Suffice it to say here only that the matter is now appropriate for the Panel to decide. All necessary formalities and procedures have been accomplished.
geniebooks.com is an electronic publishing and electronic book distribution company headquartered in Seattle, Washington. geniebooks.com was conceived of by Chris Van Dyk, also the companys incorporator. Mr. Van Dyk filed an extensive declaration in this case, affirming most of the facts set forth in this section. Mr. Merritt filed no responsive declaration. He relied only on a brief and his unverified Complaint against Van Dyk, geniebooks.com, Roxybooks.com and others in a shareholders derivative action. Most of the facts asserted by Mr. Van Dyk as to adoption and use of geniebooks.com are uncontested.
Prior to his involvement with geniebooks.com, Van Dyk was President and Chief Administrative Officer of RoxyBooks.com corporation ("Roxy"). Roxy is also in the electronic publishing and electronic book distribution business. On November 11, 1999, by motion presented to the Executive Management Committee of Roxy by Respondent, William E. Merritt, Van Dyk was relieved of his duties as President & CAO of Roxy. In a Board of Directors meeting on November 15, 1999, Van Dyk was nominated to a newly created position of Vice President of Finance, but due to serious differences in opinion with respect to Merritts business plans related to Roxy, Van Dyk declined the nomination and resigned his position as president.
On or about November 20, 1999, Van Dyk met with at least one person who worked directly with him at Roxy about creating a new company. At least as early as November 27, 1999, Van Dyk had developed a preliminary strategy and workplan for the development of the new company, named geniebooks.com Corporation.
The geniebooks.com name was inspired by Van Dyks wife, Jeanne (pronounced like Genie). Van Dyk changed the spelling because "Genie" is an Anglicization of the Arabic jenni and a French word derived from the Latin "genius" which translates roughly to mean the prevailing spirit or guardian knowledge of the place or home. The idea behind the name was that geniebooks.com is the genius domus, engendering and informing the spirit of knowledge through the electronic books that will be delivered to readers from the geniebooks.com website.
Since at least as early as December 9, 1999, Van Dyk has used the geniebooks.com name to refer to the geniebooks.com business in contacts with third persons, e.g., potential investors. Further, by January 7, 2000, Van Dyk had negotiated and was closing a deal on behalf of geniebooks.com with a major software publisher.
On December 8, 1999, Van Dyk submitted a reservation for the geniebooks.com URL to Network Solutions Inc. ("NSI"). However, due to what appears to be a technical problem at NSI, the reservation was not confirmed, nor was Van Dyks credit card charged for a reservation. NSI did not provide Complainant with any notice of a problem. Thus, Complainant was not aware the reservation had been unsuccessful.
On January 13, 2000, Thomas Finnelly, Vice-President of geniebooks.com filed the Articles of Incorporation and a Registered Agent Consent (the "Articles") on behalf of geniebooks.com. He requested and paid for expedited filing. Despite the request for expedited service, geniebooks.com was not incorporated until January 19, 2000, because the Secretary of State wanted to change the corporate address from a P.O. Box to a street address.
From December to mid-January, Jim Tate (CEO of geniebooks.com) and Van Dyk met and worked with website and software developers, developing the organization that would in turn develop and build the software infrastructure for the geniebooks.com website (the "Website"). They planned to launch the Website approximately two months after securing initial capital for the company. Their primary task was creating the legal documents -- the Offering Memorandum -- which would enable them to legally raise said capital. On January 17, 2000, Van Dyk substantially completed the Offering Memorandum.
Between November 1999 and January 2000, Van Dyk was negotiating with Roxy regarding a termination agreement (the "Termination Agreement") so that Van Dyk could pursue geniebooks.com. Specifically, Van Dyk was corresponding with Ricardo Fleischfresser, who until the week of January 17, 1999 1 and subsequent to Van Dyks termination, was the President of Roxy. By Friday January 14, 2000, Van Dyk and Fleischfresser were in the final stages of drafting the Agreement. Van Dyk sent Fleischfresser a copy of the proposed Agreement by email. In the body of the email Van Dyk indicated that geniebooks.com was to be a party to the agreement and commented on other minor changes to the Agreement.
On January 18, 2000, Van Dyk met with Ricardo Fleischfresser of Roxy on behalf of Roxy shareholders, who, together with Van Dyk, owned over 50% of Roxy. Meetings occurred on that and the following day to work out the terms of a tender offer and purchase agreement for Roxy. William Merritt was informed of this proposal, including the involvement of geniebooks.com, on January 19, 2000. The Majority Members, and all other shareholders with the exception of Merritt and two minor shareholders accepted the proposal and geniebooks.com now owns approximately 72% of Roxy common stock. Merritt was and remains hostile to the purchase.
"..., these activities are not effective to divest Respondent of his ownership in the underlying business and, consequently, Respondent is the sole, real owner of Geniebooks. Accordingly, Respondent filed suit in the Circuit Court of the State of Oregon for the County of Multnomah, Case Number 0002 01511, captioned William E Merritt v. Geniebooks.com Corporation, RoxyBooks.com Corporation, Christopher R. Van Dyk, Roxann Caraway, Ed Hutson, Jim Tate and John Does 1 through 20.
That suit was filed in February 2000. Respondent there alleges that all stock in Geniebooks should be held in constructive trust for RoxyBooks and its shareholders.
Respondent Was Adverse to Geniebooks.com and Was Aware of its Activities.
"[s]tarting in late November, 1999, and continuing through the present, Van Dyk set up, owned and ran Geniebooks DBA, a business he established to compete with RoxyBooks. When Geniebooks DBA was incorporated under the name Geniebooks.com Corporation, Van Dyk became president and chairman of the board of directors of Geniebooks."
Respondent was informed of the existence of geniebooks.com and Van Dyks specific plans with respect to geniebooks.com at least as early as January 14, 2000. As noted above, RoxyBooks.com was sent an e-mail and the draft Separation Agreement on January 14, 2000, which showed Van Dyk was using the geniebooks.com name. Although he does not appear as a recipient in the email attached as part of Exhibit E, William Merritt was sent a copy of the email and the attached Agreement at the same time. See Van Dyk Declaration, ¶ 5 and Exhibit F to the Complaint.
(3) the domain name was registered and is being used in bad faith.
(1) Complainant has no trademarks or service marks. At most, Geniebooks.com is only a company name adopted when Van Dyk was approaching potential investors.
(2) Respondent has a legitimate right to the domain name because his ownership interest in the Geniebooks.com company is superior to and displaces the other reputed shareholders. Additionally, since Respondent must serve the "John Does" with his Complaint, the webpage allows the John Does to find out about the lawsuit.
(3) There was no bad faith because Respondent had the right to protect his and RoxyBooks interests by registering this name. He did so before Complainant had established trademark rights. He also alleges he has been using the domain name for the good faith purposes of giving notice to John Doe defendants named in the litigation.
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration.
(iii) Respondents domain name has been registered and is being used in bad faith.
Paragraph 4(a)(i) requires that Respondents domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Respondent contends that Complainant has not met this requirement because the Complainant lacks trademark rights in the geniebooks.com mark, pointing out that Complainant has made no showing as to any trademark registration.
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." Since all parties are domiciled in the United States, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel will look to the principles of the law of the United States. Complainant was requested by the Panel to provide supplemental legal authority showing that its activities meet the requirements of Policy paragraph 4(a)(i). It provided no authority in response to that request.
Under United States law the fact that the Complainant does not have a registered mark does not end the trademark or service mark rights analysis. Actual use in commerce, without more, establishes protectable trademark rights under United States common law 3. The "use in commerce" standard requires (a) a bona fide use of a trademark or service mark in the ordinary course of trade, and (b) not made merely to reserve a right in a mark 4.
"Starting in late November 1999, and continuing through the present, Van Dyk and Geniebooks have directly competed with RoxyBooks in the business of posting and selling electronic copies of books on the World Wide Web."
Geniebooks.com has also offered a signed declaration showing uses of the mark geniebooks.com in the ordinary course of trade. Complainant has had business contacts with investors and secured financing for the company using the mark geniebooks.com; has incorporated under the name geniebooks.com in Washington State; has worked with website and software developers using the mark geniebooks.com; and has entered into a signed agreement with Online Web Ventures to provide web hosting for geniebooks.com. There is no need for evidence of an actual sale to establish trademark rights, as long as the company is not merely trying to reserve a right in a mark 5. Here it is clear that geniebooks.com is not merely trying to reserve a mark, but has used and intends to continuously use the mark in the ordinary course of its trade as an electronic book publisher.
Respondent contends that Complainants assertion is simply that Respondent has registered Complainants business name (not a trade or service mark) as a domain name, and cites to Frank Wagner & Son v. Cindy Mahan for authority that this is insufficient 6. However, it is established that the name of a company may also be a trademark 7. In Frank Wagner & Son, the Complainant presented no evidence of the establishment of common law trademark rights to the panel. Hence, the panel had no choice but to rely on the fact that the mark was not registered and reject the notion that the Complainant in that case had established rights in the mark. Here that is not the case. The Respondents Complaint admits trade or service mark use and Complainants declaration presents activities sufficient to establish common law trademark or service mark rights.
The evidence presented demonstrates that the domain name geniebooks.com is identical or confusingly similar to Complainants geniebooks.com mark. Therefore, the requirement of Paragraph 4(a)(i) is met.
Paragraph 4(c) of the Policy enumerates how a respondent may establish rights to and legitimate interests in a domain name. The evidence presented shows that Respondent never attempted to use the domain name in connection with offering any goods or services, nor any business of any kind. Respondent does not deny this. Therefore, subparagraphs (i) and (ii) of Para. 4(c) are inapplicable. Paragraph 4(c)(iii) does describe a circumstance under which a Respondent can demonstrate such rights and interests even without a commercial use. This is where "you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleading divert consumers or to tarnish the trademark or service mark at issue."
This section is meant to cover such "fair uses" as have long been recognized under the law, e.g., use of descriptive words in a descriptive sense, use of a geographic mark to tell customers of location, use of a personal name, etc. To allow a dissident shareholder or purported shareholder to appropriate a domain name of an existing corporation is not such a use and certainly is not a noncommercial or fair use without intent for commercial gain. Additionally, Respondent has other, more appropriate fora for addressing the respective ownership rights to the domain name, such as in the Oregon shareholders action. If Respondent is correct, that Court can address relief as to ownership of the domain name.
Likewise, and for the same reasons, the purported use of the domain name for advising John Does in the existing litigation is insufficient. Judicial procedures and other procedures provide perfectly adequate means to perfect service and to advise interested parties about litigations. Adoption of anothers mark as a domain name in its totality is not appropriate or required to provide such notice. Arbitrators applying the ICANN Policy have recognized this principle in analogous contexts. As the arbitrator said in Campagnie de Saint Gobain v. Com-Union Corp., ICANN Case No. D2000-0020.
"[i]t goes without saying that shareholders or other interested parties have the right to voice opinions, concerns and criticism with respect to a listed company and that the Internet constitutes an ideal vehicle for such activities. The issue at hand is however not as a Respondent seems to contend, the freedom of speech and expression but the mere choice of the domain name used to exercise this inalienable freedom of speech and expression. When registering the Domain Name, Respondent knowingly chose a name which is identical and limited to the trademark of Complainant. . . . Respondent could have chosen a domain name adequately reflecting both the object and independent nature of its site, as evidenced today in thousands of domain names. By failing to do so, and by knowingly choosing a domain name which solely consists of Complainants trademark, Respondent has intentionally created a situation which is at odds with the legal rights and obligations of the parties."
The evidence shows that Respondent merely registered this domain name as a tactical move in the struggle between Complainant and Respondent for control of RoxyBooks.com and/or to preclude the competitor or potential competitor geniebooks.com from using the name on the Internet. For example, Respondents letter of March 4, 2000 demanding an immediate cessation of the use of the Geniebooks.com name makes no reference whatsoever to any right or legitimate interest of Respondent with respect to use of the domain name. Rather, Respondent speaks about reservation of the domain name only in the context of the ongoing business struggle for control of the RoxyBooks.com corporation.
Therefore, the requirement of paragraph 4(a)(ii) has been proved by Complainant.
The third element Complainant must prove is in the conjunctive: the domain name "has been registered" and "is being used in bad faith." The evidence presented by the parties demonstrates that the Respondent did both register and use the domain name in bad faith.
As to the original registration, Respondents Complaint admits that, at the time Respondent registered the domain name, Complainant was using the mark geniebooks.com corporation in direct competition with the RoxyBooks.com corporation. The evidence also shows that Complainant had used the term geniebooks.com in connection with outside persons since at least as early as December 9, 1999, and had submitted a reservation for the geniebooks.com URL with Networks Solutions prior to Respondents registration. Furthermore, Respondent was aware of this use. During the negotiations of Mr. Van Dyks Termination Agreement with Roxy, on January 14, 2000, Respondent was sent a copy of an email from Mr. Van Dyk to RoxyBooks.coms president, together with the draft agreement, using the term geniebooks.com. On that same day, Respondent, in bad faith, registered geniebooks.com with Register.com, Inc. in his own name. No lawsuit was pending then, so notification of John Does could hot have been a basis for the initial registration.
Likewise, considering all of the evidence, I find that Complainant has shown that Respondent is using the domain name in bad faith. As noted, at the time of registration Respondent had no intention of using the geniebooks.com name. Rather than any legitimate use of the name for Respondents own business, the use was in bad faith to try to resolve a corporate management dispute at RoxyBooks.com and to keep Van Dyke from using the name in a competitive company.
The letter of March 4, 2000, on the letterhead of RoxyBooks.com and signed "William E. Merritt, Chairman, RoxyBooks.com Corporation," says that "Ive reserved the Genie.com URL on 14 Jan. 00. Since genieBooks.com Corporation was not even formed until 19 Jan. 00-in obvious response to my having already registered the name-its clear that you people are trying to pirate a business name that belongs to me." He goes on to demand immediate cessation of the use of the geniebooks.com name. It is apparent that the registration by the chairman of one competitor of his competitors business name and use of that name is done in bad faith. See the Policy, para. 4(b)(iii) providing that registration and use of a domain name primarily for the purpose of disrupting the business of a competitor is evidence of bad faith.
Therefore, the requirement of paragraph 4(a)(iii) has been proved by Complainant.
Claimant has proved the necessary elements that the names are identical or confusingly similar to its trade or service marks, that Respondent has no rights or legitimate interests in the domain name and that Respondent registered the domain name in bad faith and is using it in bad faith. Therefore, the remedy requested by Complainant is granted. Respondent is required to transfer the domain name geniebooks.com to Complainant.
1. Sic. See Van Dyk Declaration of March 20, 2000, ¶ 5.
2. Respondent has described himself as "Chairman, RoxyBooks.com Corporation."
3. Jerome Gilson, Trademark Protection and Practice, §3.02.
4. Gilson, supra note 1.
5. See Walt Disney Productions v. Kusan, Inc., 204 U.S.P.Q. 284, 287 (1979).
6. Frank Wagner & Son v. Cindy Mahan a/k/a Cindy Maham, an individual, Case No. D2000-0261.
7. See Hotel Corp. of America v. Inn America, Inc., 153 U.S.P.Q. 574, 575 (1967).

matches: v. v. v. v. v. v. v. v. §3 v. v. v.


UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KRISTOPHER AARON HUFFMAN, Defendant - Appellant.
Brian J. Kornbrath, Acting Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Lex A. Coleman, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Joseph F. Adams, Assistant United States Attorney, Huntington, West Virginia, for Appellee.
Kristopher Aaron Huffman appeals the sentence of ten months of imprisonment imposed upon revocation of probation. On appeal, Huffman does not contest the district court's decision to revoke his probation, and acknowledges that the district court "properly calculated both advisory Guidelines ranges and gave the parties an opportunity to argue for an appropriate sentence." (Appellant's Br. at 11). Huffman argues that his sentence is plainly unreasonable because the district court procedurally erred by failing "to adequately explain why the sentence it imposed was 'sufficient, but not greater than necessary' to comply with the purposes of sentencing." (Appellant's Br. at 8). We affirm.
Upon a finding of a probation violation, the district court may revoke probation and resentence the defendant to any sentence within the statutory maximum for the original offense. 18 U.S.C. § 3565(a) (2012); United States v. Schaefer, 120 F.3d 505, 507 (4th Cir. 1997). This court "review[s] probation revocation sentences, like supervised release revocation sentences, to determine if they are plainly unreasonable." United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). The first step in this analysis is a determination of whether the sentence was unreasonable. United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006).
Although a district court must consider the policy statements in Chapter Seven of the sentencing guidelines along with the statutory requirements of 18 U.S.C. § 3553(a) (2012), "the court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum." Crudup, 461 F.3d at 439 (internal quotation marks and citation omitted); see also Moulden, 478 F.3d at 65657. "A court need not be as detailed or specific when imposing a revocation sentence as it must be when imposing a post-conviction sentence, but it still must provide a statement of reasons for the sentence imposed." United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (internal quotation marks omitted). "We may be hard-pressed to find any explanation for within-range revocation sentences insufficient given the amount of deference we afford district courts when imposing these sentences . . . ." Id. If a sentence imposed after a revocation is not unreasonable, this court will not proceed to the second prong of the analysis — whether the sentence was plainly unreasonable. Crudup, 461 F.3d at 439.
Our review of the record leads us to conclude that the district court provided an adequate explanation of its sentencing determination, and the sentence is procedurally reasonable. Thus, "it necessarily follows that [Huffman's] sentence is not plainly unreasonable." Id. at 440.
Accordingly, we affirm the district court's order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.


JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
¶1 Ronald Lee Rosser and Holly Rebecca Rosser divorced in 2016 pursuant to a stipulated decree of divorce that was the result of mediation. One of the points of contention in their divorce case was how the parties would divide their 2015 tax obligations. At the conclusion of the mediation, the parties apparently agreed to split the 2015 tax liability equally. A few weeks later, however, both parties executed a stipulated decree of divorce that obligated Holly to “pay any tax liabilities . . . for the year 2015.” Later, after Ronald refused to pay any of the outstanding 2015 tax obligation, Holly obtained an order to show cause and asked the district court to hold Ronald in contempt of court for refusing to pay his share of the 2015 taxes. The court granted Holly’s request and found Ronald in contempt. Ronald now appeals, and we agree with Ronald that the actions he was found to have taken do not constitute statutory contempt of court. Accordingly, we vacate nearly the entirety of the district court’s contempt order, and remand this case for further proceedings.
¶2 After twenty-five years of marriage, Holly and Ronald separated in 2014, and Holly later petitioned for divorce. Over the course of their marriage, the parties acquired various assets, including several vehicles, a residence in Panguitch, Utah, two other parcels of real property, and a number of franchise restaurants that were owned by a company in which Holly and Ronald each held a 50% stake. In addition to these assets, the parties also had certain debts, including a $29,902.71 tax obligation owed to the IRS for the 2015 tax year. The parties took opposing positions regarding the division of some of these assets and liabilities.
¶3 In an attempt to resolve their differences prior to trial, the parties agreed to participate in mediation on June 16, 2016. During that mediation session, the parties were able to come to an agreement regarding all of their issues, including the 2015 tax obligation. This consensus was memorialized in a three-page written agreement (the Mediation Agreement) that was signed by all parties immediately upon completion of the mediation. With regard to the tax obligation, the Mediation Agreement states as follows: “IRS debt from 2015, 50% Ron and 50% Holly.” The parties also agreed that Ronald would be entitled to certain “rebates” that the couple’s business received.
¶4 In the weeks following the mediation, Holly paid her half of the 2015 tax obligation. For reasons unclear from the record, Ronald did not. However, Ronald did contact the parties’ accountant and identify several additional tax deductions that he thought could potentially reduce the parties’ 2015 tax liability. Acting on Ronald’s instructions, in July 2016 the accountant prepared an amended 2015 tax return for Ronald and Holly. In preparing that return, however, the accountant mistakenly assumed that the entire previous 2015 tax obligation of $29,902.71 had already been paid, when in reality only half of it (Holly’s half) had actually been paid. As a result, the amended tax return indicated that not only did Ronald and Holly not owe any taxes for 2015, they were actually due a tax refund of approximately $7,900. Holly would later testify that, operating on the assumption that Ronald had paid his half of the preexisting 2015 tax obligation as she had done, she believed that the amended returns were accurate and that the parties were in fact owed a refund. For his part, Ronald would later testify that he also believed the amended tax returns were accurate, but premised this belief on a different assumption: that Holly had paid the entirety of the 2015 tax obligation in consideration for other income she had negotiated from him. Apparently both under the belief that the amended returns were accurate, the parties signed those returns on or about August 22, 2016.
¶5 On or about August 4, 2016—after the amended tax returns had been prepared and reviewed, but before either party actually signed them—the parties and their attorneys all signed a Stipulated Motion for Entry of Findings of Fact and Conclusions of Law and Final Decree of Divorce. With respect to the 2015 tax obligation, that stipulation stated—in contrast to the Mediation Agreement—that Holly “shall be solely entitled to receive any refund resulting from the amended returns, and shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015.” A few days later, on August 8, 2016, the district court signed a Final Decree of Divorce (the Decree) in accordance with the parties’ stipulated motion. Under the terms of the Decree, Holly “shall be solely entitled to receive any refund resulting from the amended [2015 tax] returns, and shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015.” The Decree also states that Ronald is entitled to the rebates as agreed upon at the mediation.
¶6 Holly later discovered that the amended tax returns were inaccurate, and that instead of being entitled to a $7,900 refund for tax year 2015, the parties still owed $7,174.98. Under the terms of the recently-entered Decree, Holly was obligated to make this payment, but she considered that result unfair since she had already paid her half of the 2015 tax obligation, as the parties had agreed at mediation, and Ronald had not. In part because she felt as though Ronald owed her money related to the 2015 tax obligation, she declined to pass along to Ronald certain rebate checks she received to which Ronald was entitled under the terms of the Decree.
¶7 On November 21, 2016, Holly filed a Motion for Order to Show Cause, alleging that Ronald had defrauded her and asking the court to order Ronald to pay his share of the parties’ 2015 tax obligations as well as her attorney fees in bringing the motion. A few weeks later, Ron filed his own Motion for Order to Show Cause, alleging that Holly had willfully failed to comply with the provision of the Decree that concerned the rebates. Eventually, the district court scheduled both motions for an evidentiary hearing. During that hearing, Holly testified that Ronald had misled her into believing that he had paid his share of the parties’ 2015 tax obligation assigned to him pursuant to the Mediation Agreement. Ronald, by contrast, testified that Holly was not only aware that he had not done so, but that after mediation she had agreed to pay the entirety of the tax obligation. With regard to the rebates, Holly acknowledged that she had received rebate checks to which Ronald was entitled under the Decree, but stated that she had not passed those along to Ronald because she felt that he owed her money related to the 2015 tax obligations.
¶8 At the conclusion of the hearing, the court found that Ronald deceived Holly by allowing her to believe that he had paid his share of the tax obligation, and that Holly had not in fact agreed to pay it herself. The court then found Ronald in contempt of court for “his deliberate deceit and failure to act as agreed between the parties on June 16, 2016,” and ordered Ronald to pay Holly approximately $15,000 plus reasonable attorney fees, which were later determined to be $4,000. The court also found that Holly had “failed to make” the rebate payments to Ronald as required by the Decree, but that Holly’s conduct “did not intentionally violate the Decree” because Holly was “merely reacting to [Ronald’s] deceit.” Accordingly, the court allowed Holly to “offset” the rebate amounts she owed Ronald against the amount it determined Ronald owed her on the tax issue. After quantifying the amount of attorney fees to which it believed Holly was entitled, the court eventually entered judgment against Ronald in the amount of $18,951.11, but stated, in the judgment, that Holly “may apply” the “rebates toward the judgment and thus give [Ronald] credit” for them.
¶9 Ronald appeals from that judgment, and asks us to consider whether the district court erred in holding him in contempt. When reviewing a district court’s decision to find a party in contempt, “we review the district court’s findings of fact for clear error and its legal determinations for correctness.” LD III LLC v. Davis, 2016 UT App 206, ¶ 12, 385 P.3d 689 (quotation simplified). Ronald’s chief complaint with the district court’s contempt determination is a legal one: Ronald contends that the facts alleged by Holly, even if true, cannot constitute statutory contempt of court as a matter of law. This is a legal question that we review for correctness. Id.
¶10 Under Utah statutory law, a court has authority to hold a person in contempt of court for any one of twelve enumerated reasons. See Utah Code Ann. § 78B-6-301 (LexisNexis 2012). Ronald contends that none of the twelve grounds apply here, and that therefore the district court was without statutory authority to hold him in contempt. We agree with Ronald.
¶11 In this case, while it is clear that the district court found that Ronald was in contempt of court, it is unclear which of the twelve statutory grounds the court relied upon. In its order, the court stated that Ronald was “in contempt, due to his deliberate deceit and failure to act as agreed between the parties on June 16, 2016.” The court gave no other indication of the legal (as opposed to the factual) grounds for its determination that Ronald was in contempt of court.
¶12 Holly asserts that the district court implicitly relied upon two of the twelve statutory grounds for contempt: (a) the fourth one, which allows a court to find a “party to an action” in contempt for “deceit, or abuse of the process or proceedings of the court”; and (b) the fifth one, which allows a court to find a person in contempt for “disobedience of any lawful judgment, order or process of the court.” Id. § 78B-6-301(4), (5). We are not convinced that either of these grounds was appropriately invoked in this case.
¶13 The court did mention Ronald’s “deliberate deceit” as part of its reason for holding Ronald in contempt of court. But the deceit the court described in its findings was not deceit Ronald committed upon the court; rather, it was deceit Ronald apparently committed upon Holly by not telling her that he had failed to pay his share of the parties’ 2015 tax obligation. In this case, there is no allegation, let alone a finding, that Ronald committed deceit or fraud on the court, and in our view subsection (4) of the contempt statute must be interpreted to include only deceit committed on the court.
¶14 We reach that conclusion after reviewing the provision in context. First, subsection (4)—unlike other subsections—is by its own terms limited to the actions of “part[ies] to the action or special proceeding.” See id. § 78B-6-301(4). Second, “deceit” is part of a short list of things that might be found contemptuous under that subsection, and the other thing listed is “abuse of the process or proceedings of the court.” Id. Our supreme court requires a “commonsense approach” to statutory interpretation in which “a word is given more precise content by the neighboring words with which it is associated.” See Thayer v. Washington County School Dist., 2012 UT 31, ¶ 15, 285 P.3d 1142 (quotation simplified). Here, the entire thrust of the subsection is aimed at allowing a court to penalize deceitful misuse of judicial proceedings by parties to those proceedings. Ronald’s actions were all undertaken toward Holly, and not toward the court, and thus cannot fall within the ambit of subsection (4).
¶15 It is contemptible deceit, for example, to lie to a court under oath. See Bhongir v. Mantha, 2016 UT App 99, ¶ 16, 374 P.3d 33. It is also contemptible deceit to file false documents, see, e.g. PacifiCorp v. Cardon, 2016 UT App 20, ¶ 3, 366 P.3d 1226, or to falsely testify during a divorce proceeding that one has very little money and then skip town with money which one has previously deposited under an assumed name, see Smith v. Smith, 218 P.2d 270, 271–72 (Utah 1950). But these are all actions taken toward the court, and we are aware of no case—and Holly provides us with none—in which a court held a person in contempt for deceit that occurred outside of the presence of the court, was directed towards another party, and did not involve false sworn testimony or the filing of a falsified document.
¶16 We share Ronald’s concern that, were Holly’s position governing law, there would be little to prevent any untruthful statement made by any party to anyone while litigation is pending from being punishable by contempt of court. Indeed, Holly’s contentions in this case are, in essence, that Ronald breached the Mediation Agreement and in the course of doing so made fraudulent statements—or at least committed fraudulent nondisclosure—toward Holly. In our view, it would stretch the meaning of subsection (4) of the contempt statute well beyond its intended meaning if facts like these, even if true, were determined to fall within its ambit.
¶17 Holly next contends that the district court could also have been relying on subsection (5), which allows a court to punish “disobedience of any lawful judgment, order or process of the court.” Utah Code Ann. § 78B-6-301(5) (2012). But the district court did not reference any judgment or order that it believed Ronald disobeyed. Instead, the only document the court mentioned was the Mediation Agreement; the court faulted Ronald for failing “to act as agreed between the parties on June 16, 2016.” It is undisputed that, as part of the Mediation Agreement, Ronald agreed to pay half of the parties’ 2015 tax obligation, and that he did not ever actually do so. But the Mediation Agreement was not an order of the court; it was just a private agreement between two parties. Breach of a private agreement that has not yet been made an order of the court cannot be a violation of subsection (5) of the contempt statute.
¶18 Holly attempts to defend the court’s contempt order by asserting that Ronald was not only in violation of the parties’ private Mediation Agreement, but that he was also in violation of the Decree, and that—even though the district court made no mention of it—the district court intended to hold Ronald in contempt for failure to comply with the terms of the Decree. For support, Holly directs our attention to paragraph 9(r) of the Decree, which is the paragraph setting forth the parties’ rights and obligations regarding the 2015 tax obligation. As noted above, that paragraph states that Holly is to receive any 2015 tax refund to which the parties may be entitled, but that Holly “shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015.” The plain terms of the Decree (as opposed to the Mediation Agreement) obligate Holly to pay the entirety of the parties’ 2015 tax obligation, whatever that obligation might be. While Ronald’s failure to pay half of that obligation may well violate the terms of the Mediation Agreement, such failure clearly does not violate the terms of the Decree, because the Decree imposed upon Ronald no obligation to pay any of the parties’ 2015 tax obligation.
¶19 Holly argues, however, that paragraph 9(r) of the Decree is at least ambiguous, and asks us to consider parol evidence, most notably the Mediation Agreement, in construing its terms. Holly maintains that the “ambiguity” contained in paragraph 9(r) was “the presence or absence of a tax refund,” and asserts that she only agreed to the terms of the Decree because she believed that she would receive a tax refund. Holly’s argument fails, however, because the plain language of the Decree is not itself ambiguous, and clearly obligates her—and not Ronald—to pay any outstanding tax liability. A provision is ambiguous only if “its terms are capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial ambiguities.” See Mind & Motion Utah Investments, LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (quotation simplified). If the language is not ambiguous, “the parties’ intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law.” Id. (quotation simplified). “Terms are not ambiguous simply because one party seeks to endow them with a different interpretation according to his or her own interests.” Id. (quotation simplified). Instead, “the proffered alternative interpretations must be plausible and reasonable in light of the language used.” Id. (quotation simplified).
¶20 Holly’s interpretation of the language contained in paragraph 9(r) is simply not “plausible and reasonable in light of the language used.” Id. Where the language clearly imposes upon Holly the obligation to pay whatever tax obligation the parties owed for the 2015 tax year, any interpretation that imposes that obligation, even in part, upon Ronald is simply not consonant with the plain meaning of the language used. Accordingly, Ronald’s failure to pay any portion of the parties’ 2015 tax obligation is not a violation of the plain terms of the Decree, and therefore the district court could not have properly held Ronald in contempt of court on that basis.
¶21 A statutory contempt remedy simply does not fit the facts of this case, even if we assume that Holly’s version of the facts is correct. Ronald did not commit deceit on the court, nor did he violate an order or judgment of the court. He appears to have violated the terms of the Mediation Agreement, and—although we express no opinion on the matter—he may have committed fraud or fraudulent nondisclosure upon Holly in the time period between the mediation and the entry of the Decree. But Holly’s remedy, if any, for Ronald’s actions must be found somewhere other than the contempt statute. We vacate nearly the entirety of the district court’s contempt order, including its order that Ronald pay attorney fees, and remand this case for further proceedings consistent with this opinion.
 Because both parties share the same surname, we identify the parties by their first names throughout this opinion. We intend no disrespect by the apparent informality.
 Among other additional arguments, Ronald also takes issue with certain of the district court’s factual findings supporting its contempt determination, but because we determine that the facts as set forth by Holly cannot constitute statutory contempt as a legal matter, we need not consider any of Ronald’s other arguments, including whether the district court clearly erred in any of its factual determinations.
 Under Utah law, courts also have inherent (non-statutory) contempt powers. See Chen v. Stewart, 2005 UT 68, ¶ 36, 123 P.3d 416 (“A court’s authority to sanction contemptuous conduct is both statutory and inherent.”). In this case, however, Holly did not ask the district court to invoke its inherent powers and, in its order, the district court did not expressly invoke any such powers. On appeal, Holly defends the district court’s order by asserting that the court had the statutory power to issue its contempt order. Because the district court does not appear to have invoked its inherent power, and because Holly does not argue that it did, we do not address whether the district court would have had the power to hold Ronald in contempt of court pursuant to its inherent (as opposed to its statutory) authority.
 During the course of the hearing on Holly’s order to show cause, Ronald testified that he had a meeting with Holly in July 2016 where she agreed to pay all of the 2015 taxes. Holly denied that any such meeting ever occurred, and denied ever agreeing to pay the entirety of the 2015 tax obligation. The district court credited Holly’s version of those events, and made a finding that Ronald was “not telling the truth” in setting forth his version. However, there is no indication in the remainder of the court’s contempt order that it intended to hold Ronald in contempt for the particular statement that it found was not true. The court’s specific contempt finding lists only “deceit” in “fail[ing] to act as agreed between the parties on June 16, 2016,” and makes no attempt to ground a contempt finding on any “deceit” associated with Ronald’s testimony about the July 2016 meeting.
 The district court ordered the parties to participate in mediation. However, Holly makes no claim that Ronald failed to participate in mediation, or that the district court intended to hold Ronald in contempt for violating its order that the parties participate in mediation. See, e.g., Rawlings v. Rawlings, 2008 UT App 478 ¶¶ 24-28, 200 P.3d 662 (holding that while complete failure to participate in court-ordered mediation may constitute a violation of a court order to participate in mediation in good faith, participating with no intention of making or considering any settlement offers does not), reversed on other grounds by Rawlings v. Rawlings, 2010 UT 50, 240 P.3d 754.
 For instance, a party in Holly’s situation could, among other options, (a) elect to file a petition to modify the Decree, asserting a substantial and material change in circumstances; (b) file a motion, pursuant to rule 60(b)(3) of the Utah Rules of Civil Procedure, seeking relief from the terms of the Decree on the basis of fraud; or (c) file a separate lawsuit alleging fraud, fraudulent nondisclosure, or some other appropriate cause of action, and seeking damages. We express no opinion about whether, on the facts presented here, Holly would be entitled to relief under any of these options.
 We do not vacate Paragraphs 20–22 of the district court’s contempt order. In those paragraphs, the district court determined that Holly had failed to comply with the provision of the Decree that required her to pass along to Ronald certain rebate checks that she might receive. Holly has not appealed those findings, and takes no issue with them in the context of Ronald’s appeal. On remand, the district court may revisit the question of whether Holly is entitled to offset her obligation to Ronald regarding the rebate checks against any other obligation Ronald may owe her, or whether a judgment in Ronald’s favor regarding the rebate checks is appropriate.


ARNOLD N. LARSON, individually; ARLA L. HARRIS, Trustee, Arnold A. Larson Trust; ARNOLD N. LARSON, beneficiary of Arnold A. Larson Trust, Plaintiffs - Appellees, v. CHARLES R. LARSON, Defendant - Appellant, DEBRA M. LARSON, Defendant.
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
After the death of their father, a dispute arose among Arnold N. Larson (“Arny”), Arla L. Harris, and Charles R. Larson regarding the administration of his trust.1 Among other issues, the parties disagreed on the proper distribution of their father's interests in the Larson Hereford Ranch Limited Partnership (“Partnership”) and a parcel of real property known as the Larson Hereford Ranch (“Ranch”). As a result of this disagreement, siblings Arny and Arla filed suit alleging that their brother, Charles, had violated the terms of their father's trust and had breached various duties associated with his position as trustee of the trust. The parties later attended court-ordered mediation, at which they signed similar, but not identical, versions of a settlement document entitled Basic Terms of Settlement (“Basic Terms”). Shortly thereafter, the parties informed the district court that they had resolved all claims between them. They then attempted to finalize a more comprehensive settlement agreement entitled Mutual Release and Settlement. Although multiple drafts of the comprehensive settlement document were circulated, the parties ultimately reached an impasse, and Arny and Arla asked the district court to enforce either the Basic Terms or a draft of the Mutual Release and Settlement to which they believed all parties had previously agreed.
After a comprehensive evidentiary hearing, the district court granted Arny and Arla's request and enforced the fourth draft of the Mutual Release and Settlement (“Settlement Agreement”) as the parties' final settlement agreement. In its order, the district court determined, among other things, that the Settlement Agreement applied to both the Ranch and the Partnership, and that Charles had settled and released all of his claims relating to ownership of both. Charles filed a timely appeal challenging the district court's decision that the Settlement Agreement applies to claims of ownership in the Ranch, including his individual claim to the property. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Arnold A. Larson and Catherine N. Larson, parents of all parties to this appeal, each owned an undivided one-half interest in the Ranch as equal tenants in common. During her estate planning, Catherine created the Catherine N. Larson Revocable Trust and designated her one-half interest in the Ranch, along with other individually owned property, as property of the trust. The terms of Catherine's trust dictated that upon her death all then-existing trust property was to be divided between two separate trusts: the “Husband's Trust” and the “Family Trust.” Catherine predeceased Arnold A. Larson by more than thirty years, leaving him with various powers of appointment and as sole trustee of her revocable trust.
(1) LARSON HEREFORD RANCH PROPERTY. All of the interest of the FAMILY TRUST of The CATHERINE N. LARSON TRUST in any ranch real estate (including any home located thereon), cattle, horses, hay, grain, and machinery and all other customary ranch properties, shall be distributed to my son, [Arny], if he survives me.
Accordingly, after Arnold A. Larson's death in 2012, the surviving trustees of the Catherine N. Larson Revocable Trust deeded Arny a one-half ownership interest in the Ranch.
Approximately twenty-four years prior to his death, on December 27, 1988, Arnold A. Larson formed the Partnership with two of his sons, Charles and David J. Larson. At the time the Partnership was created, Arnold A. Larson owned forty-eight percent of the Partnership as a General Partner and forty-eight percent as a Limited Partner. Each son owned a two percent interest as a General Partner.2 Three days later, on December 30, 1988, Arnold A. Larson deeded his undivided one half-interest in the Ranch to “ARNOLD A. LARSON, CHARLES R. LARSON and DAVID J. LARSON and the survivors and survivor thereof, General Partners of LARSON HEREFORD RANCH[ ] LIMITED PARTNERSHIP.” Charles contends this deed transferred his father's one-half interest in the Ranch, not the Partnership, but that it conveyed that interest to Arnold A. Larson, Charles, and David in their personal and individual capacities. As a result, he claims he holds an individual ownership interest in the Ranch separate and apart from any interest he holds in the Partnership. Arny and Arla dispute this contention, arguing the deed transferred the one-half interest in the Ranch to the Partnership.
Over a decade later, before any dispute arose regarding the interests in the Ranch, Arny and Arla contend that Arnold A. Larson held two meetings with his children and his attorney to discuss his estate plan. At these meetings, which occurred in 2002 and 2003, Arnold A. Larson allegedly indicated his desire for the Ranch to go to Arny, and for Charles and David to receive cash gifts in return for their interests in the Partnership and Ranch. Charles notes he was not in attendance at the 2003 meeting and disputes the existence of any agreement to exchange his interests in the Partnership and Ranch for cash. And while it is undisputed that both Charles and David received cash gifts from their father, Charles asserts the gifts were not connected to any transfer of the brothers' interests in the Partnership and Ranch.
(1) LARSON HEREFORD RANCH LIMITED PARTNERSHIP. All of the Grantor's interest in LARSON HEREFORD RANCH LIMITED PARTNERSHIP, a Wyoming limited partnership (the “Partnership”), together with the Grantor's interest in any ranch real estate (including the Grantor's home located thereon), cattle, horses, hay, grain, and machinery and all other customary ranch properties, that is owned by the Grantor or this trust at the time of Grantor's death, shall be distributed to Grantor's son, [Arny], if he survives the Grantor.
The Trust also designates Charles and Arla as co-trustees.
Arnold A. Larson passed away in early 2012. Sometime after his father's death, and after receiving Catherine's one-half interest in the Ranch, Arny requested that Charles and Arla administer and distribute their father's trust. Although the parties dispute whether any distributions were made pursuant to the Trust in the four years after their father's death, they agree that Charles refused to distribute complete ownership of the Partnership and the remaining one-half ownership interest in the Ranch to Arny due to disagreement concerning their ownership. Despite further communications and family mediation, the parties could not reach an agreement regarding the proper administration of the Trust.
On July 20, 2015, Arny, individually and as a beneficiary of the Trust, and Arla, as trustee of the Trust, filed suit against Charles and his wife, Debra, in Wyoming state court. Arny and Arla alleged Charles had breached: (1) the terms of the Trust; (2) his fiduciary duties; and (3) his duty of good faith and fair dealing. They also sought declaratory judgments regarding ownership of the Partnership, which they alleged owned their father's one-half interest in the Ranch, and regarding Charles's alleged improper use of Trust funds and assets. Finally, they requested a preliminary injunction barring Charles from using Trust funds until a resolution of the lawsuit was reached.
Charles and Debra filed a Notice of Removal to the United States District Court for the District of Wyoming on the basis of diversity jurisdiction. The federal district court entered an order of removal on September 3, 2015. Shortly thereafter, on September 28, 2015, the district court denied Arny and Arla's motion for a preliminary injunction, and the parties subsequently filed a Joint Case Management Plan (“JCMP”) setting forth, among other things, the parties' claims, defenses, and condensed factual allegations. The JCMP included contentions from both sides regarding ownership of the Ranch, including Charles's allegations that: (1) the 1998 deed is unclear as to whether it “transferred the one-half interest [in the Ranch] to the Partnership or to the General Partners thereto in their personal capacities”; and (2) Catherine's one-half interest in the Ranch was held in the Husband's Trust, as opposed to the Family Trust, and therefore it had been improperly distributed to Arny. On October 30, 2015, the district court ordered the parties to attend mediation and to file a joint status report regarding the outcome.
On January 8, 2016, Arny's counsel emailed counsel for Charles and Debra to inquire about the status of the formal settlement agreement anticipated by the Basic Terms. Because no draft was forthcoming, Arny's counsel produced and circulated a draft agreement, entitled Mutual Release and Settlement, to all counsel on January 27, 2016, approximately thirty-seven days after the Basic Terms had been signed. This initiated a negotiation process that culminated in the creation of four draft Mutual Release and Settlement agreements, the last of which, the Settlement Agreement, was circulated on February 4, 2016.
Four days later, on February 8, 2016, counsel for Arny emailed Charles and Debra's counsel to inquire whether the Settlement Agreement constituted the final release agreement. Charles and Debra's counsel responded by circulating a new draft of the Mutual Release and Settlement agreement, which contained multiple substantive changes. Arny and Arla refused to sign the newly drafted agreement and indicated they believed all parties had agreed to the previous draft circulated on February 4, 2016. Thereafter, the parties were unable to agree on a final version of the formal release agreement and on February 10, 2016, Arny and Arla filed a motion requesting the district court to enforce the terms of the Settlement Agreement. Arny and Arla filed a supplemental motion on March 17, 2016, generally seeking enforcement of the Basic Terms and the Settlement Agreement.
The parties fully briefed the motions to enforce and the district court set an evidentiary hearing for May 19, 2016. Prior to the evidentiary hearing, Charles and Debra filed a motion seeking to bar Arny and Arla from obtaining, through discovery, the presentation used by their counsel during the mediation. A magistrate judge denied the motion, finding the presentation to be discoverable under Wyoming law.
Charles now appeals the district court's ruling.
Charles does not challenge the district court's determination that the Settlement Agreement constitutes a valid and enforceable agreement. Rather, he contends the district court erred in broadly construing the agreement to extend to the Ranch and any individual ownership interest he may claim in it. Charles supports this contention by arguing that: (1) the Settlement Agreement makes no mention of the Ranch or his alleged individual ownership interest therein; (2) the magistrate judge and district judges erred by allowing the discovery and admission into evidence of the presentation used at mediation; and (3) the district court improperly relied on extrinsic evidence to determine the agreement applied to the Ranch.4 We disagree, and conclude: (1) the district court properly construed the Settlement Agreement as a full and final settlement of all claims that had arisen during the case, including Charles's claim of individual ownership in the Ranch; (2) even assuming, without deciding, that the presentation should not have been admitted into evidence, any presumed error is harmless; and (3) the district court's consideration of the JCMP when construing the Settlement Agreement was permitted under Wyoming law.
“We review a district court's decision to enforce a settlement agreement for abuse of discretion.” Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir. 2013); see also Shoels v. Klebold, 375 F.3d 1054, 1060 (10th Cir. 2004) (holding “[a] trial court has the power to summarily enforce a settlement agreement entered into by the litigants while the litigation is pending before it” and that we review such decisions “for abuse of discretion”). But because the parties do not dispute the enforceability of the Settlement Agreement, we limit our review to the district court's construction of that agreement. In doing so, we review the district court's legal interpretations de novo, Level 3 Commc'ns, LLC v. Liebert Corp., 535 F.3d 1146, 1154 (10th Cir. 2008), and its factual findings for clear error, Naimie v. Cytozyme Labs., Inc., 174 F.3d 1104, 1112 (10th Cir. 1999). “If [the] contract is ambiguous, the resolution of its proper meaning is a question of fact subject to review on a clearly erroneous standard.” King v. PA Consulting Grp., Inc., 485 F.3d 577, 589 (10th Cir. 2007) (internal quotation marks omitted). Finally, to the extent construction of a settlement agreement involves mixed questions of law and fact, we review it “under the clearly erroneous or de novo standard, depending on whether the mixed question involves primarily a factual inquiry or the consideration of legal principles.” Armstrong v. Comm'r of Internal Revenue, 15 F.3d 970, 973 (10th Cir. 1994).
To resolve issues involving the construction of a contract, we apply state contract law. United States v. McCall, 235 F.3d 1211, 1215 (10th Cir. 2000); see also Walters, 703 F.3d at 1172. Under Wyoming law, “[a] settlement agreement is a contract and, therefore, subject to the same legal principles that apply to any contract.” Gould v. Ochsner, 354 P.3d 965, 979 (Wyo. 2015) (quoting In re Estate of Maycock, 33 P.3d 1114, 1117 (Wyo. 2001)). The primary focus when construing a contract “is to determine the parties' intent, and ․ whether the language of the contract is clear and unambiguous.” Reed v. Miles Land & Livestock Co., 18 P.3d 1161, 1163 (Wyo. 2001). “A contract is ambiguous if its language conveys a double meaning, lacks definiteness, or otherwise makes the meaning of a provision doubtful or uncertain.” In re Mark E. Dowell Irrevocable Trust #1, 290 P.3d 357, 361 (Wyo. 2012). In such circumstances, the construction of an ambiguous contract “becomes a mixed question of law and fact,” Wadi Petroleum, Inc. v. Ultra Res., Inc., 65 P.3d 703, 708 (Wyo. 2003), and courts may consider “competent evidence of pertinent explanatory circumstances extraneous to the contract” in order to determine the intent of the parties, In re Mark E. Dowell Irrevocable Trust #1, 290 P.3d at 361. However, this evidence “may not ․ be used to contradict the terms of a written contract ․ [or] to supply an additional contract term.” Id.
In contrast, if the contract language is unambiguous, we determine “the parties' intent from the words of the agreement as they are expressed within the four corners of the agreement,” Reed, 18 P.3d at 1163, and enforce the contract “in accordance with the plain meaning its language would be given by a reasonable person,” Am. Nat'l Bank v. Sara, 246 P.3d 294, 297 (Wyo. 2011) (quoting Terris v. Kimmel, 236 P.3d 1022, 1025 (Wyo. 2010)). In doing so, however, we may consider “the context in which the contract was written, including the subject matter, the purpose of the contract, and the circumstances surrounding its making ․ to help ascertain what the parties intended when they made the contract.” Id. (quoting Terris, 236 P.3d at 1025); see also In re Mark E. Dowell Irrevocable Trust #1, 290 P.3d at 361 (holding that when contract language is unambiguous a court should not resort to examining extrinsic or parol evidence, but that it “may ․ confirm its understanding of otherwise seemingly unambiguous language by reviewing evidence which, although extrinsic to the contract, complements that language by clarifying the context in which the agreement was drawn.”). Finally, our construction is guided by the principles of good faith and common sense, as they are the “leading precepts of contract construction” under Wyoming law. Reed, 18 P.3d at 1163.
Applying these principles, we agree with the district court that the clear language of the Settlement Agreement, along with the context in which it was written, unambiguously indicates the parties' intent to settle “all claims that could or did arise between the parties, known or unknown,” which necessarily encompasses claims of ownership in the Ranch, including Charles's individual claim. It is true, as Charles observes, that the Settlement Agreement does not expressly reference the Ranch. But ownership of the remaining one-half interest in the Ranch was undoubtedly at the forefront of the parties' dispute regarding Partnership and Trust property, and by agreeing to the Settlement Agreement, Charles plainly disclaimed any and all right, title, and interest in the Partnership, any and all rights to Partnership property or funds, and any rights to Trust funds or property.
3․ Charles ․ renounces and waives any rights to any further distribution or claim to Trust funds or property.
10. The parties covenant and agree never to commence, voluntarily aid in any way, initiate, institute, maintain, prosecute, or authorize to be commenced against each other any claim or complaint, either at law or in equity, or other administrative, licensing, or regulatory action or proceeding against any person, group, or corporation covered by this Mutual Release and Settlement based in whole or in part upon any claim, demand, cause of action, obligation, damage, or liability which is directly or indirectly related to the subject matter of this Release.
11․ It is further understood that this is a full and final release, and [the parties] will not file any subsequent litigation in any other action.
12. All parties shall execute a stipulation of dismissal with prejudice to dismiss the pending lawsuit, each party to bear his own costs and attorneys' fees.
13. The parties represent and warrant that at all times referred to in the above-mentioned Action, no other persons have, or had, an interest in the causes of action set forth therein and that they have not sold, assigned, transferred, conveyed or otherwise disposed of any claim or demand relating to any matter covered by this Release.
Because the language of the Settlement Agreement is expansive, settling all known or unknown claims that could or did arise between the parties, the district court did not err in construing the agreement as a settlement and release of all claims related to ownership of the Ranch, including Charles's individual claim.
Before the district court, Charles filed a Motion for Protective Order that sought to bar Arny and Arla from obtaining, through discovery, the presentation used by Charles's counsel during the mediation. A magistrate judge denied the motion, finding that the presentation was discoverable under Wyoming law and, in the alternative, that it did not constitute a protected communication under Colorado law. Shortly thereafter, at the evidentiary hearing held on May 19, 2016, the district court admitted the presentation and related testimony into evidence, over Charles's objection. Finally, in its order construing the Settlement Agreement, the district court relied, in part, on the presentation to determine that the agreement applies to the Ranch. Charles asserts on appeal that the magistrate judge and district judge erred by allowing the discovery and admission into evidence of the presentation. Although his brief focuses primarily on the issue of discoverability, Charles also specifically challenges the district court's consideration of the presentation when construing the terms of the Settlement Agreement. In response, Arny and Arla contend the presentation is discoverable under Wyoming and Colorado law, and that the Federal Rules of Evidence do not bar its admission into evidence. We review the magistrate judge's and district judge's determinations for abuse of discretion. See Vehicle Mkt. Research, Inc. v. Mitchell Int'l, Inc., 839 F.3d 1251, 1256 (10th Cir. 2016) (“[W]e review a district court's determination regarding the admissibility of evidence under an abuse of discretion standard.” (internal quotation marks omitted)); Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir. 1998) (applying abuse of discretion standard to district court's order compelling discovery).
We first examine whether the magistrate judge erred in holding that the presentation was discoverable. The parties dispute which State's laws should control this issue, as application of Colorado law leads to a different result than the application of Wyoming law. In general, the Colorado Dispute Resolution Act “protects as confidential” mediation communications 7 that are “made in the presence or at the behest of the mediator.” Yaekle v. Andrews, 195 P.3d 1101, 1110 (Colo. 2008); see also Colo. Rev. Stat. § 13-22-307. In contrast, Wyoming law expressly allows discovery of confidential mediation communications when a party seeks judicial enforcement of a purported mediated settlement agreement. See Wyo. Stat. Ann. § 1-43-103 (stating that while a party normally “has a privilege to refuse to disclose and to prevent all mediation participants from disclosing confidential communications,” no privilege exists if “[o]ne of the parties seeks judicial enforcement of the mediated agreement”). Although the parties conducted the mediation in Denver, Colorado, and agreed in their mediation agreement that “[a]ll communications, whether oral or written, made in the course of the mediation process ․ are confidential by this agreement and the Colorado Dispute Resolution Act, C.R.S. 13-22-301, et[.] seq.,”8 the lawsuit was filed in Wyoming. As a result, the magistrate judge applied Wyoming's choice of law rules to determine which State's law should govern the discoverability of the presentation. Applying these rules, the magistrate judge concluded that although Wyoming's choice of law rules state that “[t]he law of the state chosen by the parties to govern their contractual rights and duties will be applied,” Res. Tech. Corp. v. Fisher Sci. Co., 924 P.2d 972, 975 (Wyo. 1996), this general rule was overridden by the longstanding principle that Wyoming courts will “not apply another jurisdiction's law ‘when it is contrary to the law, public policy, or general interests of Wyoming's citizens.’ ” Aplt. App. 663 (quoting Res. Tech. Corp., 924 P.2d at 975). Therefore, the magistrate judge applied Wyoming law and allowed discovery of the presentation.
We conclude the magistrate judge did not err in his decision. Rule 26 of the Federal Rules of Civil Procedure provides that a party may discover any nonprivileged matter relevant to the party's claim or defense, as long as it is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). In diversity jurisdiction cases such as this one, “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Fed. R. Evid. 501; see also Frontier Ref., 136 F.3d at 699 (finding Rule 501 “provides that state law supplies the rule of decision on privilege in diversity cases”). Here, to determine which State's privilege laws control, we look to Wyoming's choice of law rules. See R&G Elec., Inc. v. Devon Energy Corp., 53 F. App'x 857, 859 (10th Cir. 2002) (unpublished) (“In diversity cases, we must apply the substantive law of the forum state, including its choice of law rules.”); New York Life Ins. Co. v. K N Energy, Inc., 80 F.3d 405, 409 (10th Cir. 1996) (stating in diversity jurisdiction actions “we apply the substantive laws of the forum state, including its choice of law rules,” and that “[i]n doing so, we must apply the most recent statement of state law by the state's highest court” (internal quotation marks omitted)).
As a result, the magistrate judge did not err in applying Wyoming law and allowing discovery of the presentation.
In addition to questioning the discoverability of the presentation, Charles appears to challenge the district court's decision to admit the presentation into evidence during the hearing. Although Charles objected to the introduction of the presentation at the hearing, he does not sufficiently raise this issue on appeal. Instead, he merely notes that the district court “admitted the presentation into evidence over Charles' objection,” but “made no distinction in those rulings between whether such materials were discoverable materials and/or additionally were admissible materials.” Because Charles provides no reasoned analysis or citation to relevant authority, this argument is inadequately briefed and therefore waived. Therrien v. Target Corp., 617 F.3d 1242, 1252–53 (10th Cir. 2010) (holding failure to raise an argument sufficiently in the opening brief waives that argument); United States v. Pursley, 577 F.3d 1204, 1228 (10th Cir. 2009) (noting that because the appellant did not justify or cite a single case in support of his position, the court was “free to end [its] inquiry by applying the principle that arguments inadequately briefed in the opening brief are waived” (internal quotation marks omitted)).
Furthermore, even if the district court had abused its discretion in admitting the presentation, either because it should not have been subject to discovery or is inadmissible under the Federal Rules of Evidence, the abuse would constitute harmless error. Here, “reversal [of the district court] is not appropriate unless the error prejudicially affected a substantial right of a party or if we reasonably conclude that the exclusion [or admission] of ․ evidence led the [factfinder] to reach a contrary result.” See Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 886 (10th Cir. 2006). The district court's reliance on the presentation was cumulative of other admissible evidence, including the Complaint, Answer, and JCMP. See Am. Nat'l Bank, 246 P.3d at 297 (noting courts may consider evidence extrinsic to the contract “to help ascertain what the parties intended when they made the contract”). These admissible materials include evidence supporting the district court's conclusion that claims of ownership in the Ranch and Partnership, including Charles's individual claims, were not only “known claims that ․ ar[ose] between the parties to this case,” but “were the main issues in the case” and therefore subject to the Settlement Agreement. As a result, even if the district court had erred in considering the presentation—an issue we do not decide—reversal on that ground would be inappropriate because it did not prejudicially affect any of Charles's substantial rights and its exclusion would not have lead the district court to reach a contrary result.
Finally, Charles's argument that the district court's consideration of the presentation amounts to reliance on prohibited parol evidence is unavailing, as Wyoming law permits consideration of extrinsic evidence to ascertain and confirm the parties' intent when entering a contract. See id.; In re Mark E. Dowell Irrevocable Trust #1, 290 P.3d at 361.
As is evident from the principles governing contract construction under Wyoming law, Charles's contention that the district court committed reversible error by considering the JCMP is unavailing. It is undisputed the district court considered the JCMP when making factual and legal determinations regarding the parties' intent and the scope of the Settlement Agreement. Wyoming law permits consideration of such material when it provides information regarding the subject matter, purpose, and circumstances surrounding the making of a contract. See Am. Nat'l Bank, 246 P.3d at 297. The JCMP provides such information, as it details the claims and contentions regarding distribution of the Trust, and ownership of the Ranch, raised during the litigation and settled in mediation. As a result, the district court did not err in considering it.
For the reasons set forth above, we AFFIRM the district court's construction of the Settlement Agreement.
2. Charles claims that Arnold A. Larson gifted a two percent interest in the Partnership on an individual and annual basis to himself, Debra M. Larson (Charles's wife), David J. Larson, and Jeannie K. Larson (David's wife). Charles alleges this practice occurred from 1988 until 1995.
4. Charles also argues the district court erred in finding the Settlement Agreement settled and released his individual claims of ownership in the Ranch because the agreement only identifies him in his capacities as a trustee and partner, and therefore cannot be read as a release of any claims he raised as an individual. Charles did not raise this argument before the district court. We therefore do not consider it here. United States v. McCall, 235 F.3d 1211, 1216 (10th Cir. 2000) (“The general rule is that this court will not consider an issue on appeal that was not raised below.”); Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 720–22 (10th Cir. 1993) (noting “we have consistently refused invitations to consider new issues on appeal” and “have therefore repeatedly stated that a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory”).
6. No party disputes that claims regarding ownership of the Ranch, including Charles's alleged individual interest, arose between the parties. The district court made a factual finding on this point, concluding that Charles's “claims and contentions concerning ownership of the Larson Hereford Ranch lands and the Larson Hereford Ranch Partnership are known claims that DID arise between the parties to this case.” The record supports the district court's determination.For example, the Complaint contained allegations that the Partnership owned a one-half interest in the Ranch, that Arnold A. Larson had acquired the Partnership interests of Charles and David in order to transfer the entire Partnership and its one-half interest in the Ranch to Arny, and that the terms of the Trust dictate Arny is to receive all interests in the Partnership and Ranch. Although Charles initially admitted in his Answer that “fifty percent of the Larson Hereford Ranch is owned by the [Partnership],” he disputed the ownership of the Partnership and whether Arny should have received the one-half interest in the Ranch previously held by the Catherine N. Larson Trust. But in the JCMP, Charles changed his position and alleged that he may have an individual interest in the Ranch because the 1988 deed is unclear as to whether it “transferred the one-half interest [in the Ranch] to the Partnership or to the General Partners thereto in their personal capacities.” Moreover, at oral argument, Charles conceded that “it is true that the question of the ownership of the Hereford Ranch did come into play” during the litigation, Oral Argument at 5:54–6:01, Larson v. Larson, No. 16-8065 (10th Cir. Mar. 23, 2017), and agreed that everyone acknowledged during negotiations that Charles had made a claim of individual ownership in the Ranch, id. at 8:59–9:34. Therefore, it is unmistakably clear that issues regarding ownership of the Ranch, including Charles's individual claims, arose between the parties during this litigation—and it is equally clear from the terms of the agreement that the parties intended to settle all such claims.
7. The Colorado Dispute Resolution Act defines mediation communications as “any oral or written communication prepared or expressed for the purposes of, in the course of, or pursuant to, any mediation services proceeding.” Colo. Rev. Stat. § 13-22-302(2.5).
9. Although Charles states in a conclusory manner that Colorado and Wyoming law do not conflict, he offers no argument or law to support his contention.
10. A separate provision of the Second Restatement supports this result. Section 139(2) of the Second Restatement provides in relevant part:Evidence that is privileged under the local law of the state which has the most significant relationship with the communication [ (Colorado) ] but which is not privileged under the local law of the forum [ (Wyoming) ] will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.Restatement (Second) of Conflict of Laws § 139(2) (emphasis added).


The current copyright framework is becoming obsolete as we try to make a digital world run on an analog legal system. The Copyright Act covers “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be visually perceived, either directly or with the aid of a machine or device.” 17 U.S.C. § 401. The ability of the digital medium to interact dynamically with a user or generate unique visualizations along predefined parameters has enabled many novel forms of art which could not have been foreseen by the drafters of the Copyright Act of 1976. Terms of art such as “fixed” or “copy” have lost much of their meaning, and the law’s notion of a tangible medium is becoming less relevant. The digital arts are a misfit medium within current copyright categories as the underlying software and possible Internet platform add dynamic and collaborative elements which were previously absent from intellectual property. This Comment will address the disconnect between traditional copyright law and the realities of the digital age, using emerging forms of digital art as archetypal examples.
Digital art is defined as a work of creative expression which has been non-trivially modified with digital technology as part of its creation or presentation. Works are often interactive, collaborative, or algorithmically generated along parameters set by the initial producer. The digital arts utilize software to produce different forms of creative expression, ranging from a static digital painting or photomontage to dynamic and unpredictable visualizations generated by a web program which uses constant input from the Internet.
The Copyright Act differentiates between “pictorial, graphic, and sculptural works” and audiovisual works, yet in regard to the digital arts it is much more relevant whether the work is static (fixed, lacking in change) or dynamic. In the past, copyrightable works were by their very nature static unless a human author effected change. Hence, requiring that a work be “fixed in any tangible medium of expression” made sense — fixation was the point at which legal copyrights attached to the completed artwork. In contrast, a digital artwork is never “fixed” in the traditional sense, as it is inseparable from the software and is regenerated as many times as the computer refreshes the image from its memory.
The digital arts often experiment with possibilities on the edge of technological innovation. A quick introduction to some of the terminology common within the genre is essential to understanding the following legal discussion. Digital art is often interactive — the software will generate a unique audiovisual display based upon user input. Works are often collaborative — many individuals make creative contributions, generally over the Internet.  In addition, digital artists often create generative algorithmic art by encoding algorithms that define the parameters of the artwork into the underlying software that guides its generation either autonomously or in response to input. Computer art is a broader term than digital art and would include artworks such as unaltered (or minimally retouched) digital photography. One popular form of digital art depicts fractals – a common style of abstract algorithmic art where software calculates an image or animation from preset parameters. Information art, or informatism, is an emerging art form where the code generates artistic content by processing large amounts of information.
All of these factors are present in the famous “Electric Sheep” distributed computing project. Developer Scott Draves programmed a screensaver which displayed animated, evolving fractal flames. Once downloaded, the user could program and upload their own unique fractal “sheep,” download and modify existing sheep, or combine (mate) existing sheep to create hybrid fractals. The program was designed to upload and incorporate new sheep into the “flock” existing on the main server. These dynamically generated fractals could be voted up or down and a sorting algorithm took the votes into consideration when defining the parameters along which the fractals evolved. The Electric Sheep project was simultaneously generative, interactive, and collaborative. The original artist, downstream users, and server administrators all influenced the dynamically generated fractal flames. While a single snapshot of the resulting image could be fixed, the artwork itself consisted of a web of inputs dynamically generating a visualization through the underlying software algorithms, and the entire project was based over the internet.
A primary consideration when differentiating between the digital arts is whether the software was used as a tool in creating the work, or as the medium of expression. When software is merely used as a tool, there is a readily apparent difference between the code of the artwork and the imaging program. For example, digital photographs and paintings (“painted” on computer imaging software) are types of visual artwork in which electronic technology is used solely as a tool of production. When an artist uses Photoshop to create a digital painting, the underlying generative software is intuitively distinct from the code of the JPG file which records the image. Digital photographs and paintings are two of the few forms of digitally encoded artworks that comfortably fit within the current copyright categories, as there is a definable point where the work can be considered completed, static, and fixed. Contrast these to generative artworks, which actively use software algorithms as essential, dynamic parts of the resultant work. Software art utilizes the code as a medium of expression, and the artist generates aesthetically pleasing designs from dynamic user input, distributed systems, or real-time data sets – similar to the way a kaleidoscope generates unique patterns when a user manually turns the object box. Dynamic paintings are an intermediate example of software as a medium of expression. The artist digitally paints an image and programs functions into the underlying code to control how the image will transform over time. The exact images rendered over time are unpredictable – the computer platform randomizes along parameters set by the artist.
A “fixed” animated audiovisual work is read in much the same way as a static digital image, with the self-contained file read by a compatible program and projected onto the user’s screen. For digital paintings, information visualization generators, and even videogames, the underlying code has been fixed - software is used as a tool and does not change. However, in collaborative artworks, such as Electric Sheep, both the audiovisual display and the code are continually changing – software becomes a medium of expression. This type of work cannot be reconciled with traditional copyright law, which assumes a degree of fixation which may never be attained.
Digital art is a legal misfit. It spans three statutorily defined authorship categories, so multiple and perhaps mutually exclusive copyright interests attach to the different aspects of a creative work. Under 17 U.S.C. §102(a)(1), the underlying software can be copyrighted as a literary work, or under §102(a)(6), transient animated displays may be copyrighted as an audiovisual work. See ex., Midway Manufacturing Co. v. Artic International, Inc., 547 F. Supp. 999 (N.D. Ill. 1982). In addition, under §102(a)(5), a work of visual art may be categorized as a “pictorial, graphic, and sculptural work.” Typically works covered by §102(a)(5) receive increased protection under the 1990 Visual Artists’ Rights Act (“VARA”). However, VARA limits its scope to limited-edition paintings, drawings, and photographs – audiovisual works are specifically excluded. Insofar as digital artworks are infinitely reproducible and often dynamic, they are excluded from most fine arts legislation. Problems also arise in determining when digital artworks qualify as “original works of authorship fixed in any tangible medium of expression” as required by the Copyright Act. Precise legal definitions of “original,” “author,” “fixed,” and “tangible” have proved elusive.
A work of digital art may not have an “author” in the traditional sense of the word. Legitimate authorship is undermined because “works produced by mechanical processes or random selection without any contribution by a human author are not registrable.” When the artist is primarily a programmer who works directly with dynamic software, the legal status of the resulting visualization is uncertain – the computer is responsible for much of the content generated. Creative intervention by the artist avoids this pitfall, yet work that utilizes software as a medium of expression might run afoul of this limitation on authorship. The requirement of “original works of authorship” also raises issues when the work is collaborative, or automates visualizations based on user input.
Legally, copyright is created when a work is “fixed” in a tangible medium, yet digital works are by nature transient. Numerous copies are generated as the coding is transferred and read and the audiovisual displays may be constantly changing. The Uniform Commercial Code makes an individualized exception to tangibility requirements for software to fit it within the older legal regime, yet the text specifically excludes the digital arts. Circuits differ in how they deal with the disparity between legal definitions and digital realities. The Seventh Circuit affirmed in 1983 that transient images generated by an underlying program could be considered sufficiently fixed to receive copyright protection. Midway, Mfg. Co. v. Artic Int’l, Inc.,704 F.2d 1009, 1011 (7th Cir. 1983) (protecting video game displays as audiovisual works); see also Stern Electronics v. Kaufman, 669 F.2d 852 (2d Cir. 1982) (finding that, in addition to the source code, the images and sounds in a game could be copyrighted). Similarly, the Ninth Circuit Court of Appeals held in 1993 that a computer technician fixed an infringing copy when he loaded a software program into RAM. MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). Conversely, the Second Circuit held in 2008 that to be fixed, a work must be embodied in a medium for a period of more than transitory duration—momentary copying while streaming content did not constitute infringing copies. Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). In many ways, the courts must engage in technical analysis to which they are ill-suited and draw an arbitrary line. In a work—such as such as Electric Sheep—where both the software and the audiovisual displays are integral components of the creative expression, certain aspects would fall outside the law and remain unprotected.
Digital art occupies an uneasy position at the intersection of fine art, the applied arts, and software. Copyright protection extends equally to any work fixed in a tangible medium. Yet classification problems arise because works in a digital medium are inextricably linked to the underlying software and depend upon computers or electronic displays in order to be physically perceptible. Moreover, issues concerning more finely-tuned classifications and protections arise due to the diverse properties of creative works which fall under the umbrella of “digital art,” which do not conform to the neat categories laid out in copyright law. Insofar as digital images exist as information on a computer, they evade traditional fixation.
Delineating the boundaries between the code and the visual artwork or disentangling individually copyrightable component parts may be a futile task. Within a single digital artwork, copyright law allows for separate copyrights in the software, in the audiovisual display, or as a pictorial/graphic image. Looking back at the Electric Sheep example, the need for a rewrite of copyright law becomes painfully apparent. Scott Dravis initiated the project in 1999, yet users and server administrators are constantly uploading new algorithmic parameters for the fractal flames or recombining them in new ways. The computations are spread over thousands of user computers (when otherwise idle) which dynamically generate the finished animations and redistribute them over the user network. The “sheep” in the main server number merely 100 or so at any given time. The different iterations show more than enough creativity to qualify for copyright protection, and after ten years very little may be left of Davis’ original work. All contributors may have a copyright claim, but no one could claim the amalgamated visual display in its entirety.
The law creates exceptions and allowances to plaster over this cleft between traditional copyright concepts and digitized works, yet problems in statutory interpretation arise because the Act has not been rewritten to account for a basic shift in the nature of copyrightable works. Software allows works to be dynamically generative, and the Internet allows the easy exchange of information for collaboration. It is not possible to “fix” many works in a digital medium in a static, completed form. Authorship must be redefined to incorporate different levels of collaboration and contribution. Software must have a legal identity that accounts for its unique properties and the relationship it currently holds as a building block or language in which the other arts are written. We would not attempt to run cutting-edge software on a computer from 1976; we should be similarly sensible with our law.
 But see WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622, 627 (7th Cir. 1982) (noting legislative history suggests Congress wanted courts to interpret definitions contained within the Copyright liberally, to avoid the need to periodically update the act).
 For an extreme example, developments in biotechnology and genetics have resulted in a new art form called “bioart,” wherein artists may modify genetic codes to form messages or grow sculpture from muscle or nerve cells.
 See, e.g., (generates a visualization based on the frequency of word usage in a given sample of text).
 U.S. Copyright Office 503.03(a) Compendium II of Copyright Office Practices.
 Mechanically generated creative works blur the line between copyrightable “original works of authorship” and those to which no copyright can attach. Digital art pushes the limits, and has since its inception. Desmond Paul Henry, one of the first computer artists, constructed a succession of three drawing machines from analog bombsight computers salvaged from WWII bombers. The machines could not be programmed or store information, and relied on slight imperfections in construction to create abstract curvilinear line drawings. The machine would produce unique and unpredictable drawings, and the artist could interfere or not. Conceivably the “human author” contributed by inserting the paper and removing it when finished. Yet with automated digital artworks, even this small contribution is no longer necessary.
 See Nancy S. Kim, Expanding the Scope of the Principles of the Law of Software Contracts to Include Digital Content, 84 Tul. L. Rev. 1595, 1597 (2010).
 After Midway, the U.S. Copyright Office stopped allowing videogames to be registered as both an audiovisual work and a literary work. Instead, producers must choose whether to copyright the display or the underlying code.
 Gibbons, supra note 11 at 545.
 Dan L. Burk, Muddy Rules for Cyberspace, 21 Cardozo L. Rev. 121, 122–123 (1999).