Full opinion text
ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE HORNBY, District Judge. The United States Magistrate Judge filed with the court on March 21, 2003, with copies to counsel, his Recommended Decision on Cross-Motions for Summary Judgment (Docket Item 59 (sealed version) and Docket Item 62 (expanded public version)). The plaintiff and third-party defendant filed an objection to the Recommended Decision on April 4, 2003. I have reviewed and considered the Recommended Decision (sealed version), together with the entire record; I have made a de novo determination of all matters adjudicated by the Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision, and determine that no further proceeding is necessary. It is therefore Ordered that the Recommended Decision of the Magistrate Judge is hereby Adopted. The plaintiffs motion for summary judgment is Granted as to Counts I and IV of the Counterclaim and otherwise is Denied. The defendants’ motion for summary judgment is Granted with respect to (i) Standard I/O, Inc., as to Counts I and III of the Complaint; (ii) Chunn, as to Count I of the Complaint to the extent the claimed violation of the UTSA is predicated on the existence of GUIDs of the Chunn HDD; (iii) both Standard and Chunn, as to Counts II, TV, VII and VIII of the Complaint and that portion of Count VI of the Complaint asserting violation of an implied warranty/services; and (iv) Count II of the Counterclaim; and otherwise Denied. Remaining for trial are the following: Count I of the Complaint (misappropriation of trade secrets) against Chunn only, with the caveat that Pearl is precluded from premising any such claim on contents found on the HDD; Count III of the Complaint (violation of the DMCA) against Chunn only; Count V of the Complaint (breach of contract) against both Standard and Chunn; Count VI of the Complaint (breach of warranty/services) against both Standard and Chunn, to the extent asserting breach of express warranty only; and Count II of the Counterclaim, with respect only to the amount of damages to be awarded Chunn. So Ordered. COHEN, United States Magistrate Judge. RECOMMENDED DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Plaintiff Pearl Investments, LLC (“Pearl”) and defendants Standard I/O, Inc. (“Standard”) and Jesse Chunn (together, “Defendants”) cross-move for summary judgment as to Counts I and V of Pearl’s eight-count complaint, and the Defendants move for summary judgment as to the remaining counts, in this action arising from Standard’s provision of custom computer programming to Pearl. Motion for Partial Summary Judgment of Liability on Counts I and V of the Complaint and for Summary Judgment on Counterclaims (“Plaintiffs S/J Motion”) (Docket No. 19) (sealed) at 1; Motion by Defendants/Counterclaimants for Summary Judgment, etc. (“Defendants’ S/J Motion”) (Docket No. 26) (sealed) at 1; Complaint, etc. (“Complaint”) (Docket No. 1) at 1-2. In addition, Chunn, Pearl and third-party defendant Dennis Daudelin cross-move for summary judgment as to Count II of Chunn’s four-count counterclaim/third-party complaint, and Pearl and Daudelin move for summary judgment as to the remaining two counts applicable to them (Counts I and IV). Plaintiffs S/J Motion at 1-2; Opposition by Defendants to Plaintiffs Motion for Partial Summary Judgment and Cross-Motion for Summary Judgment on Counterclaim Count II (“Defendants’ S/J Opposition”) (Docket No. 30) (sealed) at 1; Answer, Counterclaim and Third-Party Complaint, etc. (“Answer”) (Docket No. 2) at 15-20 (“Counterclaim”). Chunn concedes Pearl’s and Daudelin’s entitlement to summary judgment as to Count IV of the Counterclaim. Defendants’ S/J Opposition at 2. For the reasons that follow, I recommend that both motions be granted in part and denied in part. I. Summary Judgment Standards Summary judgment is appropriate only if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In this regard, ‘material’ means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, ‘genuine’ means that ‘the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.’ ” Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmov-ing party and give that party the benefit of all reasonable inferences in its favor. Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir.2000). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the non-movant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(e). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 81 (1st Cir.2001) (citation and internal punctuation omitted). To the extent that parties cross-move for summary judgment, the court must draw all reasonable inferences against granting summary judgment to determine whether there are genuine issues of material fact to be tried. Continental Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 429 (1st Cir.1992). If there are any genuine issues of material fact, both motions must be denied as to the affected issue or issues of law; if not, one party is entitled to judgment as a matter of law. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720, at 336-37 (1998). II. Factual Context The parties’ statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Local Rule 66, reveal the following relevant to this recommended decision: Pearl is a Maine limited liability company with its principal place of business in Portland, Maine. Plaintiffs Statement of Undisputed Material Facts in Support of Their [sic] Motion for Partial Summary Judgment of Liability on Counts I and V of the Complaint (“Plaintiffs SMF”) (Docket No. 20) (sealed) ¶ 1; Defendants’ Opposing Statement of Material Facts in Opposition to Plaintiffs Motion for Summary Judgment and in Support of the Cross-Motion for Summary Judgment (“Defendants’ Opposing SMF”) (Docket No. 31) ¶ 1. Pearl develops and operates automated stock-trading computer systems (collectively and individually, “Pearl’s ATS”). Id. ¶ 2. Standard is a Maine corporation with its principal place of business in Portland, Maine. Id. ¶ 3. Standard provides custom software programming for third parties. Id. ¶ 4. Chunn, a Maine resident, is the sole owner of Standard. Id. ¶¶ 5-6. In April 2000, Pearl hired Standard to perform software-programming services in relation to Pearl’s ATS. Plaintiffs SMF ¶ 7; Complaint ¶ 13; Answer ¶ 13. Chunn was initially offered an equity interest in Pearl to carry out the programming, but declined the offer. Statement of Material Facts Not in Dispute by Defendants/Coun-terclaimants in Support of Their Motion for Summary Judgment (“Defendants’ SMF”) (Docket No. 27) (sealed) ¶ 3; Plaintiff Pearl Investment’s Opposing Statement of Material Fact Pursuant to Local Rule 56(c) (“Plaintiffs Opposing SMF”) (Docket No. 35) (sealed) ¶ 3. Instead, he proposed that Standard would do the programming work at a reduced hourly rate on a time-and-materials basis. Id. Pearl agreed. Id. Standard provided software-development services from April 2000 through June 2001, with some miscellaneous transition work by Michael Farnsworth completed by mid-July. Defendants’ Opposing SMF ¶ 8; Supplemental Declaration of Jesse Chunn (“Suppl. Chunn Deck”) (Docket No. 32) (sealed) ¶3. Chunn personally worked on computer programming for Pearl from April 2000 through June 22, 2001. Plaintiffs SMF ¶ 9; Declaration of Dennis Daudelin (“First Daudelin Decl.”) (Docket No. 21) (sealed) ¶ 5 & Exh. B thereto. The automated trading system that Chunn and Standard developed for Pearl consisted of software that carried out trading of corporate securities without human intervention over alternative trading systems known as electronic communications networks, or ECNs. Defendants’ Opposing SMF ¶ 72; Suppl. Chunn Decl. ¶35. ECNs are private trading systems maintained separately from public markets such as NASDAQ, although they trade the same securities. Defendants’ Opposing SMF ¶ 73; Plaintiffs Reply SMF ¶ 73. They enable buy and sell orders for stocks to be displayed and matched by market professionals and “day-traders.” Id. On any given ECN, the various offers for a particular security are displayed as a “book” for that security, with the highest offer to buy (or “bid”) and the lowest offer to sell (or “ask”) shown at the “top” of the “book.” Id. ¶ 77. The difference between the highest bid price and the lowest ask price is the “spread” for that security at a given time. Id. ¶ 78. ECN arbitrage opportunities are only possible between books on different ECNs. Id. An automated trading system necessarily includes a component that determines when and how the system will enter the market. Id. ¶ 80. A system could be programmed to enter the market immediately either by buying a security (i.e., accepting an ask) or by accepting a bid and “selling short,” ie., selling a security that is not yet owned in the expectation that the price will go down and the shares to cover the trade could be purchased later for less. Id. Alternatively, rather than accepting an offer to buy or sell, the trading system could place a bid or an ask on the book and wait to see whether that bid or ask was accepted. Id. The trading system also must include a component that determines when and how to exit the market, either by selling a security that is owned or buying a security to “cover” a short sale. Id. ¶ 81. Pearl’s ATS are modular software systems, meaning that they comprise numerous software components, each of which performs independent functions, but all of which operate as a single system. Plaintiffs SMF ¶ 14; First Daudelin Decl. ¶ 10. Among those various components is a single component, referred to as the “signal generator,” that contains the system’s trading logic. Plaintiffs SMF ¶ 15; First Daudelin Decl. ¶ 11. This modular approach allowed Pearl to execute its business model of conceiving, developing and implementing several systems based on different signal generators, such systems being developed as resources allowed. Plaintiffs SMF ¶ 17; First Daudelin Decl. ¶ 15. Among many possible signal generators, Pearl had the resources to develop only two initial systems. Plaintiffs SMF ¶ 19; First Daudelin Decl. ¶ 16. Other signal-generator concepts were discussed and analyzed to varying degrees and reserved for future development. Plaintiffs SMF ¶ 20; First Daudelin Decl. ¶ 17. The software for the first system that Standard and Chunn helped develop, “Engine 1,” was an “arbitrage” system in that it was designed to purchase a security on one ECN and sell it on a different ECN to profit from the differences in the price of that security in the two different ECNs. Plaintiffs Reply SMF ¶ 74; Suppl. Daudelin Decl. ¶ 3. For example, if one thousand shares of Oracle were selling at 90 on the Island ECN, and someone were simultaneously bidding to buy the same number of shares on the Instanet ECN for 90, there would be an opportunity to buy the shares on Island and sell them on Instanet for a profit of $250, minus commissions. Defendants’ Opposing SMF ¶ 75; Plaintiffs Reply SMF ¶ 75. The software developed by Standard automatically both identified such arbitrage opportunities and executed the respective trades. Id. ¶ 76. During the fall of 2000, Standard succeeded in producing the first version of the software to carry out the automated arbitrage transactions. Defendants’ SMF ¶ 8; Plaintiffs Opposing SMF ¶ 8. The software was installed on several servers owned by Pearl and located at a computer facility maintained by On-Site Trading, Inc. (“On-Site”) in New York. Id. On the first day of automated trading, the system generated approximately [REDACTED] in revenue. Id. During the last four months of 2000, it generated about [REDACTED] in revenue. Id. Pearl considered acquiring Standard, and a letter of intent was signed on September 15, 2000. Id. ¶ 9. In the meantime, employees of Standard operated the trading system and provided office space for one full-time Pearl employee, Doug Robertson. Id. ¶ 10. Standard kept a current backup copy of the software it had developed for Pearl in “SourceSafe” files. Id. ¶ 11. While Standard was running the trading system for Pearl, programmer Farnsworth had an established practice of printing and storing daily trading records — a practice that was solely for Pearl’s benefit. Id. ¶ 12. Pearl conceded that for Standard to print out the trading records, it needed passwords to Pearl’s clearing account (as distinguished from passwords to Pearl’s computers), which passwords were given to Standard. Defendants’ SMF ¶ 42; Plaintiffs Opposing SMF ¶ 42. By February 2001 the financial conditions for the acquisition had not been met, and the parties’ letter of intent expired of its own terms. Id. ¶ 13. At a Pearl company meeting on February 16, 2001 several courses of action to reduce Pearl’s operating costs were discussed, including moving some or all of Pearl’s development work in-house. Plaintiffs Opposing SMF ¶ 14; Second Daudelin Deck ¶ 41. At the same meeting Daudelin asked: “Should we consider a stock grant for a tighter NDA and non-compete? How much?” Defendants’ SMF ¶ 15; Plaintiffs Opposing SMF ¶ 15. By March 2001 the parties had decided not to merge their operations, and Pearl had decided to establish its own separate office and hire its own employees to write software programs and monitor the stock-trading system. Id. ¶ 16. In April 2001, Pearl rented its own office space for the first time and moved its equipment out of the Standard offices into the new space. Id. ¶ 17. By April, Pearl had also advised Standard that it was winding down its use of Standard’s services. Id. Although the Pearl arbitrage system was the primary trading “engine” developed by Standard and used by Pearl, it was not the only trading system considered. Defendants’ Opposing SMF ¶87; Plaintiffs Reply SMF ¶ 87. Standard presented another, non-arbitrage automated trading system to Pearl as a concept. Id. Chunn and Standard employee Farnsworth referred to that system as the “Scalper.” Id. The Scalper was specified to trade a single stock at a time on the Island ECN. Plaintiffs Opposing SMF ¶ 48; Defendants’ Reply SMF ¶48. Chunn testified at his deposition that he could not recall details of the Scalper system. Plaintiffs SMF ¶47; Defendants’ Opposing SMF ¶ 47. However, on March 16, 2001 Farnsworth e-mailed to Pearl representatives Daudelin and Robertson a Scalper Design Definition Document and flow chart outlining details of the Scalper system. Id.; see also Exh. C to Second Daudelin Decl. The Scalper Design Definition Document describes the Scalper system as follows: [REDACTED] Plaintiffs SMF ¶ 49; Defendants’ Opposing SMF ¶ 49. As its trading parameters initially were set up, the Scalper would [REDACTED] Defendants’ Opposing SMF ¶ 91; Plaintiffs Reply SMF ¶ 91; see also Suppl. Daudelin Decl. ¶ 12. Pearl specifically informed Standard and Chunn that “any deviation from the document that also creates a working signal is good.” Plaintiffs Reply SMF ¶ 89; Suppl. Daudelin Decl. ¶10. Pearl ran simulation testing on the initial parameters of the Scalper and concluded that they would not generate a signal that would result in the desired trading opportunities. Plaintiffs Reply SMF ¶ 87; Suppl. Daudelin Deck ¶ 9. However, the Scalper system concept [REDACTED] was potentially promising. Id. The development of new parameters was postponed for budget reasons. Id. No software to carry out trading using the Scalper was ever developed by Pearl employees. Id. Because Pearl’s business relies on identifying market inefficiencies and/or predictive indicators, it is extremely important to Pearl that few or no other automated trading systems are implemented that might eliminate, reduce or affect a particular inefficiency or market inefficiencies in general. Plaintiffs SMF ¶ 10; First Daudelin Decl. ¶ 6. Daudelin, Pearl’s chief executive officer, made it clear to Standard employees (including Chunn) on several occasions that the existence of Pearl’s ATS and all aspects of it, including various signal generators and related components, constituted proprietary and confidential information owned by Pearl. Plaintiffs SMF ¶ 22; First Daudelin Decl. ¶¶ 1, 21. Pearl has not made any patent applications relating to its trading methodologies or systems. Plaintiffs SMF ¶ 24; Defendants’ Opposing SMF ¶ 24. In its copyright applications related to computer programs for its trading methodologies, Pearl has carefully excised any trade secrets about exactly how the trading methodologies work. Plaintiffs SMF ¶ 26; First Daudelin Decl. ¶ 25. On April 10, 2000, prior to the disclosure of any details about Pearl’s methods to Chunn, Chunn signed a non-disclosure and confidentiality agreement (“NDA”). Plaintiffs SMF ¶ 29; Defendants’- Opposing SMF ¶29. The NDA provides, in part: I agree to make full and prompt disclosure to the Company [Pearl] of all business opportunities relating to manual and automated stock market trading and any other businesses in which the Company may be engaged during the course of my contract with the Company, (collectively, “Business Opportunities”), as well as of all computer software systems, methods, designs, processes, algorithms and trade secrets whether patentable, copyrightable or not, made, conceived or reduced to practice by me or under my direction or jointly with others during the term of my contract with the Company (all of which are collectively termed “Discoveries”). I hereby assign and transfer to the Company without further compensation the entire worldwide right, title and interest in and to all Discoveries and any patents, patent applications, copyrights, copyright registrations, or trade secrets covering such Discoveries.... Id. ¶ 31. The NDA also provides: I understand that the Company’s confidential information includes matters not generally known outside the Company, such as computer software systems, object and source code, methods, designs, processes, algorithms and trade secrets relating to manual and automated stock market trading including business operations, methodologies and the techniques of the Company. I further understand that while I am under contract by the Company, I may obtain or hear of confidential information of the Company and of other parties, which has been provided to the Company in confidence. I agree not to disclose, use or copy any confidential information of the Company (whether or not produced by me) or of other parties, which has been provided to the Company in confidence, except as the Company may authorize or direct. Id. ¶ 32; see also NDA, Exh. E to First Daudelin Decl., § I. Section III of the NDA provides that ownership of copyrights and other intellectual property-rights “in the designs, drawings, and related documents and works of authorship created for the Company or within the scope of my contacts with the Company belong to the Company exclusively throughout the world.” Defendants’ SMF ¶ 46; NDA, Exh. E to First Daudelin Deck, § III. The NDA also provides that the obligations thereunder “shall survive any termination of contracts with the Company.” Plaintiffs SMF ¶ 33; NDA, Exh. E to First Daudelin Decl., § VIII. The following employees of Standard also signed one or more nondisclosure agreements: Mike Farnsworth, Janet Chunn, Sue Davidson, Marc Grover and Michael Moore. Plaintiffs SMF ¶ 34; First Daudelin Deck ¶ 29 & Exhs. F-J thereto. Janet Chunn, the controller of Standard, signed an NDA purportedly on behalf of Standard on April 24, 2000. Plaintiffs Opposing SMF ¶ 85; Second Daudelin Deck ¶ 28 & Exh. F thereto. Pearl also required that On-Site, then its broker, execute a confidentiality agreement. Plaintiffs SMF ¶ 35; First Daudelin Decl. ¶ 30 & Exh. K thereto. Prior to being hired by Pearl, Standard and Chunn had never worked with or developed any automated stock-trading systems. Plaintiffs SMF ¶ 37; Defendants’ Opposing SMF ¶37. Chunn opened a trading account with On-Site and deposited money to fund the account on March 29, 2001. Defendants’ Opposing SMF ¶ 39; Exh. O to First Daudelin Decl. Before On-Site would agree to open Chunn’s account, it insisted that Pearl give its consent. Defendants’ SMF ¶ 19; Plaintiffs Opposing SMF ¶ 19. Daudelin gave that consent on Pearl’s behalf. Id. Chunn purchased a server with his own money and had it delivered to On-Site. Id. ¶ 20. He directed On-Site that it should maintain his server separate and apart from the equipment being stored for Pearl. Id. On-Site agreed to that request. Id. Chunn wrote his software on the server he had installed at On-Site using a remote utility program that enabled him to connect over the Internet from his office and computer at Standard. Defendants’ SMF ¶ 27; Chunn Deck ¶ 25; see also Defendants’ Reply SMF ¶ 77; Second Suppl. Chunn Decl. ¶ ll. Chunn insisted on keeping his personal trading system separate from work being performed by others at Standard. Defendants’ SMF ¶ 22; Chunn Decl. ¶ 20. Working on his own time, Chunn created software for his own experimental automated trading system. Defendants’ SMF ¶ 23; Chunn Decl. ¶ 21. Chunn described his trading system as follows: Well, the way it was going to work some day was it would look at the number of shares that — the number of shares that — excuse me, it has been awhile. I’ve got to remember. The number of executions — the number of shares executed on the buy side of the book for a specific symbol versus the number of shares executed on the sell side of the book for that same symbol, and whether or not those executions were happening on the buy side or on the sell side. So that if most executions happened on the buy side, my theory was, and this never came to fruition because I didn’t have enough time, but the theory was that since more people were coming over to the buy side — it has been a long time. If more people were executing at the price the buyers were offering to pay, then the price was going to go down. If more executions were happening at the price that the sellers were offering to sell for, then the price would go up. I may have that backwards. Again, it has been a long time. I never did get it to work. That’s how it works, although I might have it in reverse. And, of course, there was a lot more to it, but that was the basic premises. Plaintiffs SMF ¶42; Deposition of Jesse W. Chunn (“Chunn Dep.”) (sealed), filed with Plaintiffs SMF, at 92-93. Chunn’s ATS was programmed to trade only on the Island ECN. Plaintiffs SMF ¶ 50; Defendants’ Opposing SMF ¶ 50. [REDACTED] Chunn carried out the first manual trades using his system on April 12, 2001. Defendants’ SMF ¶ 28; Plaintiffs Opposing SMF ¶ 28. He did not begin to trade automatically until on or about May 18, 2001. Id. In all, Chunn traded stock manually and automatically using his system on twenty-eight separate days between April 12 and October 28, 2001. Id. ¶ 30. In that time, he traded only three stocks: [REDACTED], Id. All automated trades were conducted over the same ECN; there was no arbitrage. Id. Chunn lost a total of $9,274.79 as a result of these transactions. Id. ¶31. Chunn and his wife — not Standard — reported the losses from use of the trading system on their personal tax returns. Id. Pearl never authorized Standard or Chunn to develop an automated trading system or to use any of Pearl’s trading concepts or software. Plaintiffs SMF ¶ 51; First Daudelin Decl. ¶ 34; Defendants’ Responses to Plaintiffs First Set of Requests for Admissions and Interrogatories (sealed), filed with Plaintiffs SMF, ¶ 17 at 13-14. Pearl never implicitly nor explicitly consented to Standard’s or Chunn’s use of any Pearl trade secrets. Plaintiffs SMF ¶ 52; First Daudelin Decl. ¶34. For the only trades that Chunn carried out, he did not need, and went out of his way not to use, the specific software components that Pearl ultimately identified as trade secrets: [REDACTED], the execution system, the broker system, the feed parser system and the control panel and node manager. Defendants’ SMF ¶ 25; Chunn Decl. ¶ 23. In early November 2001, On-Site’s assets were sold to A.B. Watley (“ABW”), a New York-based brokerage house. Defendants’ SMF ¶ 32; Plaintiffs Opposing SMF ¶ 32. At about that time, Douglas Robertson, Pearl’s chief technology officer, telephoned Tim Reynolds, a network engineer for ABW, and asked him to install a Linux operating system on Pearl’s Pionex server. Plaintiffs SMF ¶ 53; Defendants’ Opposing SMF ¶ 53. Reynolds told Robertson that he had installed the Linux operating system, but Robertson connected to the server and found no evidence of the installation. Id. ¶ 54. In a subsequent telephone conversation, Reynolds asked Robertson which Pionex server he was to install the Linux system on. Plaintiffs SMF ¶ 55; Declaration of Douglas Robertson (“First Robertson Decl.”) (Docket No. 22) (sealed) ¶ 6. Because Pearl had only one Pionex server, this led Pearl to discover that Reynolds had installed Linux on a server other than Pearl’s. Id. The server was plugged into Pearl’s KVM (keyboard, video, mouse) box and router. Plaintiffs SMF ¶ 56; First Daudelin Decl. ¶ 88. The purpose of the router at the ABW facility was to control access to Pearl’s computer network. Plaintiffs Opposing SMF ¶ 60; Declaration of Douglas Robertson (“Second Robertson Decl.”) (Docket No. 36) ¶ 14. On-Site provided hardware racks and IP ports for each user to connect to its system. Plaintiffs Opposing SMF ¶ 59; Defendants’ Reply SMF ¶ 59. Pearl had not authorized the connection of any additional servers to the Pearl network. Plaintiffs Opposing SMF ¶ 54; Second Daude-lin Decl. ¶ 50. Pearl’s ATS operates and executes trades in the millisecond range and, therefore, is extremely dependent upon operating on maximum speed and efficiency, as has been demonstrated by internal experimentation. Plaintiffs Opposing SMF ¶ 57; Second Daudelin Decl. ¶¶ 23-24. After consulting with legal counsel, and with the sole intent of preserving the suspect server for legal proceedings, Daudelin drove to ABW’s premises on November 15, 2001, took pictures of the server (which was unplugged and shut down before he arrived) and the networking hardware to which it was connected, removed the server and returned to his home in Harvard, Massachusetts. Plaintiffs SMF ¶ 58; First Daudelin Decl. ¶ 38. As it turned out, the Linux software was installed on Chunn’s server, overwriting his hard drive and obliterating his programming code. Defendants’ SMF ¶ 33; Videotape Deposition of Dennis Daudelin, attached to Second Suppl. Stier Deck, at 64-66; Tormey Dep., Exh. S5 to Declaration of Robert H. Stier, Jr. (“Stier Deck”) (Docket No. 29) (sealed) at 40-41. Pearl had not authorized Standard or Chunn to use any element of Pearl’s network or server, to view any Pearl data or to develop or operate an automated trading system. Plaintiffs Opposing SMF ¶ 56; Defendants’ Reply SMF ¶ 56. After discovering that the server was owned by Chunn, Pearl’s legal counsel tried over the ensuing several weeks to reach agreement with Chunn’s legal counsel on the best manner to preserve any evidence contained on the hard disk drive (“HDD”) within the server. Plaintiffs SMF ¶ 59; First Daudelin Deck ¶ 39. Counsel for Chunn provided proof of Chunn’s ownership and demanded the return of his server beginning on December 14, 2001. Defendants’ Opposing SMF ¶ 110; Plaintiffs Reply SMF ¶110. In early January 2002, Daudelin delivered the server to Pearl’s counsel. Plaintiffs Opposing SMF ¶63; Defendants’ Reply SMF ¶ 63. Prior to doing so, Daudelin removed the HDD from the server and delivered it to Pearl’s counsel at the same time he delivered the server. Id. ¶¶ 64-65. Counsel for Pearl placed the HDD in a secure location and informed counsel for Standard and Chunn that it could pick up the server (without the HDD) while the parties attempted to agree on the best manner to preserve any evidence contained on the HDD. Id. ¶ 70. In early January 2002, Pearl purchased a replacement hard disk drive and delivered it to counsel for Standard and Chunn. Id. ¶ 71. On January 9, 2002 counsel for Pearl delivered the server (without the HDD) to counsel for Standard and Chunn. Id. ¶ 72. On February 4, 2002 counsel for Pearl sent the HDD that was removed from Chunn’s server to Pearl’s expert for imaging, with explicit instructions that no information on the drive was to be accessed or viewed in any way. Id. ¶ 66. Pearl’s expert made a duplicate copy of the HDD, and the original HDD was returned to counsel for Pearl, who retained the drive in a secure location until a protective order was agreed to by the parties. Id. ¶¶ 67, 73. Only after Pearl’s expert executed a protective order on September 24, 2002 was the expert instructed to perform any forensic analysis of the drive. Id. ¶ 68. The original HDD was returned to the Defendants’ counsel on October 24, 2002 in response to a discovery request by the Defendants. Plaintiffs Reply SMF ¶ 112; Declaration of James Keenan (Docket No. 40) ¶ 2 & Exh. A thereto. At no point did any employee of Pearl turn on, boot up or in any way access the server or the HDD or view the contents of the HDD. Plaintiffs SMF ¶ 63; First Daudelin Decl. ¶ 42. In late November 2001, shortly after Chunn’s server was seized by Daudelin, Chunn was informed by ABW employee Matt Ventura that the company no longer wanted his business and was terminating his account. Defendants’ Opposing SMF ¶ 109; Plaintiffs Reply SMF ¶ 109. Chunn had done nothing to ABW to cause it to terminate his account, which was profitable for ABW. Defendants’ Opposing SMF ¶ 105; Suppl. Chunn Decl. ¶67. He paid commissions on the trades that he conducted, which produced revenues for ABW. Id. There is no evidence that Pearl or Daudelin used fraud or intimidation to cause ABW to sever its relationship with Chunn. Plaintiffs SMF ¶ 66; Chunn Dep., filed with Plaintiffs SMF, at 126-27. In just over a year, from the end of September 2000 through the end of October 2001, the total value of securities sold by Pearl through On-Site was approximately [REDACTED]. Defendants’ Opposing SMF ¶ 106; Plaintiffs Reply SMF ¶ 106. The total value of securities purchased was approximately the same. Id. One could assume conservatively that the average price per share of a NASDAQ security traded by Pearl during this period was less than $50. Id. ¶ 107. One also could assume conservatively that Pearl paid a commission of at least $1 for each one hundred shares traded. Id. ¶ 108. Pearl’s experts have determined that the installation of the Linux operating system on the HDD destroyed all the files on it. Plaintiffs SMF ¶ 68; Defendants’ Opposing SMF ¶ 68. As a result, there is no confidential information about Chunn’s trading system on the server. Id. ¶ 69. No “files copied from Pearl’s ATS” were found on Chunn’s hard drive, as Pearl’s experts admit. Defendants’ SMF ¶ 37; Plaintiffs Opposing SMF ¶ 37. Pearl’s technical expert, Pat Tormey, retrieved GUIDs from the remnants of the HDD identifying discrete components of Pearl’s software. Plaintiffs Opposing SMF ¶ 81; Tormey Dep., attached thereto, at 97-99. These GUIDs were installed on the HDD prior to the installation of the Linux operating system and the overwriting of the HDD. Plaintiffs Opposing SMF ¶ 82; Tormey Dep., attached thereto, at 97-99, 113. III. Analysis A. Count I of Complaint: Misappropriation of Trade Secrets In Count I of its complaint, Pearl alleges that the Defendants disclosed and used trade secrets "without its consent in violation of two sections of the Maine Uniform Trade Secrets Act (“UTSA”), 10 M.R.SA. §§ 1543-44. Complaint ¶¶ 92-101. The parties cross-move for summary judgment as to this count. See, e.g., Plaintiffs S/J Motion at 1; Defendants’ S/J Motion at 1. Drawing all reasonable inferences against the grant of summary judgment, I find Standard entitled to prevail as to the entirety of Count I and Chunn entitled to prevail as to any asserted violation of the UTSA premised on the existence of certain GUIDs on his HDD. I turn first to the matter of Standard’s potential liability. As Pearl clarifies in its summary-judgment papers, it premises its UTSA claim on the creation of the Chunn ATS. See, e.g., Plaintiffs S/J Motion at 12-15; Plaintiffs S/J Opposition at 5. It argues (without citation to authority) that Standard should be held liable for any asserted misappropriation on grounds that (i) Chunn owns all of Standard’s assets, (ii) Chunn admits to using Standard’s office and pieces of office equipment (e.g., his computer) in creating the Chunn ATS and (iii) Farnsworth was paid regular Standard salary to work on the Chunn ATS. See Plaintiffs S/J Opposition at 5. The latter asserted fact is disputed; however, even assuming arguendo its truth, the existence of these three facts, standing alone, is insufficient to hold Standard hable for any misappropriation. Pearl does not explain how, and I fail to see how (in the absence of a piercing-of-the-corporate-veil type of argument), the bare fact of Chunn’s ownership of Standard is relevant. Chunn’s use of some of Standard’s property and one of its employees to create the Chunn ATS is relevant; however, it is not dispositive. As the Defendants point out, “[u]nder Maine law, a servant’s tort is committed in the scope of employment only if it is actuated, at least in part, by a purpose to serve the master.” Reply Memorandum in Support of Motion for Summary Judgment by Standard I/O, Inc. and Jesse Chunn (“Defendants’ S/J Reply”) (Docket No. 47) (sealed) at 2 (quoting Nichols v. Land Transport Corp., 223 F.3d 21, 24 (1st Cir.2000)). Thus, “actions that are done with a private, rather than a work-related, purpose to commit wrongdoing are outside the scope of employment.” Id. (quoting Bergeron v. Henderson, 47 F. Supp.2d 61, 66 (D.Me.1999)). It is undisputed that Chunn opened the On-Site account in the name of himself and his wife, that he paid for the server used to develop the Chunn ATS with his own money and that he and his wife, not Standard, reported losses from trading on the system on their taxes. On the cognizable evidence, a reasonable fact-finder could draw only one conclusion: that Chunn’s use of some Standard property and the time of a Standard employee was incidental to a private purpose — the development of an ATS in the name of, and for the benefit of, himself and his wife, not of Standard. Thus, even assuming arguendo that Chunn misappropriated Scalper trade secrets in developing the Chunn ATS, Standard cannot be held liable for his misdeeds. It accordingly is entitled to summary judgment as to Count I. This leaves Chunn and Pearl, to whom I now turn. Pearl predicates its UTSA claim on (i) similarities between the Scalper system and the Chunn ATS and (ii) the presence on the HDD of GUIDs from Pearl's ATS. See, e.g., Plaintiffs S/J Motion at 12-15; Plaintiffs S/J Reply at 4-5; Plaintiffs S/J Opposition at 7-9. Neither side demonstrates entitlement to summary judgment with respect to the Scalper theory; however, I find that Pearl fails to generate a triable issue with respect to the HDD. Turning first to the Scalper, there is (as the Defendants suggest) a threshold triable issue whether Pearl owned the Scalper concept — an assertion that hinges on operation of the “Discoveries” section of the NDA. See Defendants’ S/J Reply at 3-4. Per the terms of the NDA executed by Chunn, he assigned to Pearl such systems, methods, designs and so forth as were “conceived or reduced to practice by me or under my direction or jointly with others during the term of my contract with the Company.” Plaintiffs SMF ¶ 31; Defendants’ Opposing SMF ¶ 31. There is no evidence of the existence of any written contract between Chunn and Pearl apart from the NDA. Nor is it clear that the two formed any separate oral agreement. These circumstances create an ambiguity as to the meaning of the phrase, “during the term of my contract with the Company.” See, e.g., Villas by the Sea Owners Ass’n v. Garrity, 748 A.2d 457, 461 (Me.2000) (“When a contract is found to be ambiguous, a court may look to extrinsic evidence of the intent of the parties. Additionally, the court may look to extrinsic evidence to reveal a latent ambiguity.”) (citations omitted). While the parties adduce sufficient extrinsic evidence to reveal the ambiguity, they do not adduce sufficient evidence to resolve it. A trier of fact accordingly must do so. Further, even assuming arguendo that Pearl owns the Scalper concept or methodology, there is no direct evidence that Chunn misappropriated it. Pearl therefore relies (as it may) on the existence of similarities between the Scalper and the Chunn ATS to prove the wrongful act. However, the parties dispute the extent to which the concepts differ, and that dispute must be resolved before a trier of fact rationally can infer whether Chunn did or did not base his ATS on the Scalper. I turn next to the HDD theory, which amounts to an assertion that Chunn essentially copied parts of the so-called “Engine 1” ATS (a working program) rather than the Scalper (a design concept that Pearl did not translate into a program). As an initial matter, Chunn argues that the HDD evidence (and any inferences therefrom) should be excluded on the basis that Pearl or its agents were responsible for its spoliation. See Defendants’ S/J Motion at 7-9. However, Pearl did not ask or authorize On-Site to overwrite Chunn’s HDD, nor is Pearl responsible for Chunn’s alleged failure to make a backup copy of its contents. Nor, even assuming arguen-do that Daudelin wrongfully seized and retained the HDD, does Chunn have any evidence that its contents were destroyed, tampered with or in any other way further spoiled as a result. Thus, Chunn fails to demonstrate loss of evidence attributable to negligent or worse conduct on the part of Daudelin or Pearl. Compare, e.g., Silvestri v. General Motors Corp., 271 F.3d 583, 593 (4th Cir.2001) (“[S]ometimes even the inadvertent, albeit negligent, loss of evidence will justify dismissal because of the resulting unfairness: The expansion of sanctions for the inadvertent loss of evidence recognizes ... the resulting unfairness inherent in allowing a party to destroy evidence and then to benefit from that conduct or omission.”) (citation and internal quotation marks omitted). Nonetheless, the HDD theory falters for a different reason — that Pearl fails to adduce sufficient cognizable evidence to raise a genuine issue regarding it. Assuming arguendo that one resolves any chain-of-custody doubts in Pearl’s favor, one could reasonably infer that Chunn (or someone acting at Chunn’s direction) copied some of Pearl’s files in building Chunn’s ATS. However, Chunn adduces evidence (which Pearl tries, but fails, effectively to controvert) that for the only trades he carried out, he did not need, and went out of his way not to use, the specific software components that Pearl ultimately identified as trade secrets: [REDACTED], the execution system, the broker system, the feed parser system and the control panel and node manager. Moreover, although Pearl attempted to adduce its own evidence concerning the nature of the copying that the GUIDs revealed (ie., that components of Pearl’s ATS were copied and that these particular components were protected by copyright registration), that evidence was not supported by the citations given. In the absence of any cognizable evidence that the GUIDs trace back to trade-secret data, there is no triable issue whether Chunn misappropriated trade secrets based on the presence on the HDD of the GUIDs. I accordingly recommend that Standard be granted and Pearl be denied summary judgment as to Count I and that Chunn be granted partial summary judgment with respect only to any theory of violation of the UTSA premised on the presence of GUIDs on the HDD. B. Count II of Complaint: Computer Fraud and Abuse Act In Count II of its complaint, Pearl alleges that the Defendants violated the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, by virtue of their alleged unauthorized accessing of “Pearl’s Network” to obtain valuable ATS information. Complaint ¶¶ 102-14. The Defendants’ bid for summary judgment as to this count, predicated in part on an assertion that Pearl has not demonstrated that it suffered the requisite damages, see Defendants’ S/J Motion at 11, should be granted. The CFAA provides in relevant part: Any person who suffers damage or loss by reason of a violation of this section [18 U.S.C. § 1030] may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief. A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in clause (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B).... 18 U.S.C. § 1030(g). The five clauses of subsection (a)(5)(B) are as follows: (i) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value; (ii) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals; (iii) physical injury to any person; (iv) a threat to public health or safety; or (v) damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security[.] Id. § 1030(a)(5)(B). Pearl’s allegations implicate only the first of these clauses: “loss to 1 or more persons during any 1-year period ... aggregating at least $5,000 in value[.]” Id. § (a)(5)(B)(i). In its papers opposing summary judgment, Pearl argues that the Defendants’ alleged wrongful connection to its system adversely affected the system’s speed and operation, thereby causing damages. See Plaintiffs S/J Opposition at 10. However, while Pearl adduces evidence that speed was important to the operation of its ATS, it sets forth no cognizable evidence that the Defendants’ alleged conduct damaged its system in any quantifiable amount, let alone in an amount approximating more than $5,000 in one year. This is fatal to its CFAA cause of action. Compare, e.g., America Online, Inc. v. National Health Care Discount, Inc., 174 F.Supp.2d 890, 899-901 (N.D.Iowa 2001) (detailing evidence demonstrating damage incurred by plaintiff in amounts exceeding $5,000 in each of three years as result of defendant’s transmission of unsolicited e-mail in violation of CFAA). The Defendants therefore are entitled to summary judgment as to Count II. C. Count III of Complaint: Digital Millenium Copyright Act In Count III of its complaint, Pearl alleges that the Defendants violated the Digital Millenium Copyright Act (“DMCA”), 17 U.S.C. § 1201(a)(1)(A), by circumventing the protections of Pearl’s encrypted, password-protected virtual private network (“YPN”) to gain unauthorized access to data that included Pearl’s copyrighted software. Complaint ¶¶ 32-33, 115-20. Both Defendants seek summary judgment as to this count, see Defendants’ S/J Motion at 12-13; however, only Standard is entitled to prevail. Pearl predicates its DMCA claim on the alleged creation of a “tunnel” from the Chunn server at On-Site to Pearl’s On-Site network. See Plaintiffs S/J Opposition at 12. The Defendants repeat their argument (made in the context of Count I) that the conduct in issue is that of Chunn, qua individual, and that Pearl’s evidence and arguments fall short of creating a triable issue as to Standard’s liability. See Defendants’ S/J Motion at 12. For reasons discussed above in connection with Count I, the Defendants are correct. Standard is entitled to summary judgment as to Count III. The Defendants’ arguments with respect to Chunn are less persuasive. They first suggest that because no court has extended the protections of the DMCA to VPNs (an assertion that my research corroborates), this court should refrain from doing so. See Defendants’ S/J Motion at 12. Although this appears to be an issue of first impression, it is not a difficult one. The relevant portion of the DMCA bars any person from “cireumvent[ing] a technological measure that effectively controls access to a work protected under this title [Title 17, Copyrights].” 17 U.S.C. § 1201(a)(1)(A). To “circumvent a technological measure” means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” Id. § 1201(a)(3)(A). A technological measure “effectively controls access to a work” if “the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” Id. § 1201(a)(3)(B). As the District Court for the Southern District of New York has observed: The DMCA contains two principal an-ticircumvention provisions. The first, Section 1201(a)(1), governs the act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work, an act described by Congress as the electronic equivalent of breaking into a locked room in order to obtain a copy of a book. Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 316 (S.D.N.Y.2000), aff'd, 273 F.3d 429 (2d Cir.2001) (citations and internal quotation marks omitted). The VPN, jas described by Pearl, squarely fits the definition of “a technological protection measure put in place by a copyright owner to control access to a copyrighted work.” Pearl’s VPN is the “electronic equivalent” of a locked door. The Defendants next posit that, in any event, the VPN in issue here should not be considered a “technological measure” inasmuch as it did not effectively control Chunn’s access in view of the fact that he had written the software in question himself and maintained a backup file of it for Pearl. See Defendants’ S/J Motion at 12. This contention plainly is without merit. The question of whether a technological measure “effectively controls access” is analyzed solely with reference to how that measure works “in the ordinary course of its operation.” 17 U.S.C. § 1201(a)(3)(B). The fact that Chunn had alternative means of access to the works is irrelevant to whether the VPN effectively controlled access to them. The Defendants finally argue that the evidence is undisputed that employees of On-Site, rather than Chunn, configured his server and router and therefore he could not have been responsible for the alleged “tunnel” from his server to the Pearl VPN. See Defendants’ S/J Motion at 13. However, the parties dispute whether On-Site employees alone configured users’ servers and routers. If a fact-finder were to credit Pearl’s version of these facts, it reasonably could infer that Chunn configured his server and router to tunnel into Pearl’s network. For these reasons, Standard alone is entitled to summary judgment as to Count III. D. Count IV of Complaint: Copyright Infringement In Count IV of its complaint, Pearl alleges that the Defendants infringed its copyrights in the following software components registered with the U.S. Copyright Office: (i) Pearl Engine 1 Control Panel & Node Managers, (ii) Pearl Engine 1 Execution & Broker System, (iii) Pearl Engine 1 Feed Parsers System and (iv) Pearl Engine 1IMDB System. Complaint ¶¶ 121-27. The Defendants’ bid for summary judgment as to this count, see Defendants’ S/J Motion at 13-14, should be granted. Pearl’s copyright-infringement claim rests on its evidence that GUIDs traceable to its files were found on Chunn’s HDD. See Plaintiffs S/J Opposition at 14-15. As the Defendants argue, the claim implodes for lack of evidence. See Defendants’ S/J Motion at 13-14; Defendants’ S/J Reply at 5-6. First, as discussed above in the context of Count I, there is insufficient evidence to hold Standard liable for the conduct in question, which implicates Chunn’s attempts to create his own ATS. Second, Pearl fails to generate cognizable evidence that the GUIDs found on Chunn’s HDD were traceable to the above-cited copyright-registered software components. Third and finally, even assuming arguendo that those GUIDs could be linked to one or more of those components, in the absence of a copy of the Chunn ATS a fact-finder could not make the type of comparison between the original work and the allegedly infringing work necessary to analysis of whether a copyright has been infringed. See, e.g., Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 33 (1st Cir.2001) (“This Court conducts a two-part test to determine if illicit copying has occurred. First, a plaintiff must prove that the defendant copied the plaintiffs copyrighted work, either directly or through indirect evidence. Second, the plaintiff must prove that the copying of the copyrighted material was so extensive that it rendered the infringing and copyrighted works substantially similar.”) (citations and internal quotation marks omitted). Both Standard and Chunn accordingly are entitled to summary judgment as to Count IV. E. Count V of Complaint: Breach of Contract In Count V of its complaint, Pearl asserts that the Defendants breached (i) an agreement between Standard and Pearl requiring that programming work be performed in a professional and workmanlike manner and (ii) agreements between Pearl and the Defendants prohibiting disclosure or use of information other than as needed to serve Pearl’s needs. Complaint ¶¶ 128-34. The parties cross-move for summary judgment as to this count. See Defendants’ S/J Motion at 1; Plaintiffs S/J Motion at 1. In its summary-judgment papers, Pearl narrows the scope of what is in issue, clarifying that it presses a claim that Standard and Chunn breached the NDA, not the programming-work contract, and that the NDA was breached by virtue of the Scalper to create Chunn’s ATS. See, e.g., Plaintiffs S/J Opposition at 6-7; Plaintiffs S/J Motion at 9-12. As noted above in the context of Count I, there are triable issues whether (i) Pearl owned the Scalper concept by operation of NDAs signed by Chunn and purportedly by Standard (via Janet Chunn) and (ii) the Scalper program and the Chunn ATS are similar enough to permit an inference that Chunn based his ATS on the Scalper. Accordingly, neither side demonstrates its entitlement to summary judgment as to Count V. F. Counts VI-VII of Complaint: Breach of Warranty The Defendants next move for summary judgment as to Pearl’s breach-of-warranty claims: Count VI (breach of warranty/services), alleging that the Defendants breached express and implied warranties that their work would be sufficient to meet Pearl’s needs and would be performed in a professional and workmanlike manner, and Count VII (breach of warranty/goods), alleging that the software and upgrade sold to Pearl breached warranties of merchantability and fitness for a particular purposes implied by operation of two sections of the Maine Uniform Commercial Code (“UCC”), 11 M.R.S.A. §§ 2-814 and 2-315. See Complaint ¶¶ 135-43; Defendants’ S/J Motion at 17. Although the Defendants purport to seek summary judgment as to the entirety of Count VI, they confine their argument to that portion asserting breach of an implied services warranty. See Defendants’ S/J Motion at 17; Defendants’ S/J Reply at 6-7. They contend, in essence, that no such implied warranty exists. See id. I agree. I find no Maine case addressing whether a warranty should be implied in the context of the provision of services. Pearl cites Libby v. Woodman Potato Co., 135 Me. 305, 195 A. 569 (1937), for the proposition that such a warranty is implied in Maine law, see Plaintiffs S/J Opposition at 14, but Libby concerned (and addressed) only goods. Inasmuch as appears from my research, courts in other jurisdiction have been wary of recognizing implied warranties in the context of performance of services, doing so only for compelling public-policy reasons. See, e.g., Rocky Mountain Helicopters, Inc. v. Lubbock County Hosp. Dist., 987 S.W.2d 50, 53 (Tex.1998) (“An implied warranty that services will be performed in a good and workmanlike manner may arise under the common law when public policy mandates. Public policy does not justify imposing an implied warranty for service transactions in the absence of a demonstrated, compelling need.”) (citations omitted); Held v. 7-Eleven Food Store, 108 Misc.2d 754, 438 N.Y.S.2d 976, 979 (N.Y.Sup.Ct.1981) (“The Courts of our state do not recognize a cause of action based upon breach of warranty arising out of the performance of services. If a service is performed negligently the cause of action accruing is for that negligence. Likewise, if it constitutes a breach of contract, the action is for that breach. The distinction in the case of a sale of goods is that a warranty gives rise to a cause of action without fault.”) (citations omitted). There is no reason to believe the Law Court would recognize an implied services warranty in the circumstances of this case. The Defendants thus demonstrate entitlement to summary judgment as to that portion of Count VI alleging breach of an implied warranty (services), but not that portion alleging breach of an express warranty (services), as to which no argument is made. The Defendants seek summary judgment as to Count VII (breach of warranty/goods) on the basis that the UCC is inapplicable to the contract in issue. See Defendants’ S/J Motion at 17; Defendants’ S/J Reply at 6. As the First Circuit has noted, under Maine law “the test for inclusion or exclusion from Article 2 [of the UCC] is not whether the goods and non-goods parts of the contract are mixed, but rather, whether their predominant factor, then- thrust, their purpose, reasonably-stated ... is a transaction of sale.” Cianbro Corp. v. Curran-Lavoie, Inc,., 814 F.2d 7, 14 (1st Cir.1987) (citation and internal quotation marks omitted). Inasmuch as appears, the Law Court has not had occasion to consider whether a contract for the provision of software primarily constitutes a good or a service. Pearl asserts that the weight of authority favors treatment of software programs as goods for purposes of the UCC. See Plaintiffs S/J Opposition at 13 (citing Micro Data Base Sys., Inc. v. Dharma Sys., Inc., 148 F.3d 649, 654-55 (7th Cir.1998); Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 675-76 (3rd Cir.1991); RRX Indus., Inc. v. Lab-Con, Inc., 772 F.2d 543, 546-47 (9th Cir.1985)). However, I agree with the Defendants, see Defendants’ S/J Reply at 6 & n. 6, that the cases on which Pearl relies are distinguishable. The programmers in Dharma, Unisys and RRX sold preexisting software (albeit with custom modifications or upgrades to adapt it to the user’s needs or equipment) and were paid in a manner primarily reflecting sale of goods, e.g., in Dharma, an upfront software licensing fee coupled with fees for modifications. See Dharma, 148 F.3d at 651, 654-55; Unisys, 925 F.2d at 674, 676; RRX, 772 F.2d at 545-46. By contrast, in the instant ease, Standard and Pearl agreed that Standard would create ATS software from scratch (concept to realization) for which it would be paid on a time and materials basis. I find cases more closely on point than Dharma, Unisys and RRX holding that, for purposes of applicability of the UCC, development of a software system from scratch primarily constitutes a service. See Multi-Tech Sys., Inc. v. Floreat, Inc., No. CIV. 01-1320 DDA/FLN, 2002 WL 432016, at *3-*4 (D.Minn. Mar. 18, 2002) (“The few cases considering the question indicate that the UCC does not apply to an agreement to design and develop a product, even if compensation under that agreement is based in part on later sales of that product.... Any software in a tangible medium that Floreat provided to Multi-Tech pursuant to the 1992 and 1995 Contracts at best was incidental to the predominant purpose of those agreements, which was to develop and improve the MultiExpress PCS and MultiModem PCS product.”); Wharton Mg’t Group v. Sigma Consultants, Inc., 1990 WL 18360, at *3 (Del.Super.Ct. Jan. 29, 1990), aff'd, No. 69, 1990, 1990 WL 168240 (Del. Sept. 19, 1990) (“Wharton bargained for Sigma’s skill in developing a system to meet its specific needs.... The service element of the transaction so dominates the subject matter of the contract that, even though a tangible end product seemingly within the definition of ‘goods’ was produced, the contract is more readily characterized as one for services. Where, as here, the contract is exclusively or primarily for services, it is outside the scope of Article 2 of the U.C.C.”). I am satisfied that on these facts the Law Court likewise would hold the UCC inapplicable. The Defendants accordingly are entitled to summary judgment as to Count VII. G. Count VIII of Complaint: Trespass to Chattels The Defendants next move for summary judgment as to Count VIII of the Complaint, in which Pearl alleges that they committed trespass to chattels in accessing and using Pearl’s network without authorization. Complaint ¶¶ 144 — 48; Defendants’ S/J Motion at 17-18. The Defendants repeat their argument that this claim does not sufficiently implicate Standard to hold it hable for the tortious acts alleged. See Defendants’ S/J Motion at 17. I agree. The conduct in issue is the plug-in of Chunn’s server to Pearl’s router and KVM switch. See Plaintiffs S/J Opposition at 11. Standard is entitled to summary judgment as to Count VIII for the same reasons that it is entitled to summary judgment as to Count I. In any event, both Defendants are entitled to summary judgment as to this count for a different reason. “A trespass to chattels occurs when one party intentionally uses or intermeddles with personal property in rightful possession of another without authorization.” America Online, Inc. v. IMS, 24 F.Supp.2d 548, 550 (E.D.Va.1998) (citing Restatement (Second) of Torts § 217(b)). “One who commits a trespass to a chattel is liable to the possessor of the chattel if the chattel is impaired as to its condition, quality, or value.” Id. (quoting Restatement (Second) of Torts § 218(b)). As the Defendants point out, see Defendants’ S/J Reply at 7, even assuming ar-guendo that Chunn did access Pearl’s network without authorization, there is no evidence that in so doing he impaired its condition, quality or value. On this basis both Defendants accordingly are entitled t