Full opinion text
OPINION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW GERARD E. LYNCH, District Judge. Plaintiff SimplexGrinnell LP brings this action against defendant Integrated Systems & Power, Inc. (“ISPI”), asserting a variety of claims centering around the rights and obligations of the parties in conjunction with an earlier settlement agreement between them in an unrelated bankruptcy proceeding. Specifically, SimplexGrinnell brings claims for copyright infringement, misappropriation of trade secrets, unfair competition through false advertising, and breach of contract. ISPI in turn asserts a breach of contract counterclaim. The ease was tried before the Court without a jury on November 10 and 12, 2009. This Opinion sets forth the Court’s Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To the extent any Finding of Fact reflects a legal conclusion, it shall be to that extent deemed a Conclusion of Law, and vice versa. For the reasons stated below, the Court concludes that a limited injunction against ISPI is warranted to prevent further copyright infringement, misappropriation of trade secrets and unfair competition through false advertising practices, but not to the full extent requested by SimplexGrinnell. FINDINGS OF FACT I.Background to the Dispute A. The Parties 1. Plaintiff SimplexGrinnell manufactures, sells and services commercial fire safety systems nationwide. 2. Defendant Integrated Systems & Power, Inc. (“ISPI”) is also in the fire safety system business and operates in New York and New Jersey. It does not manufacture its own brand of fire systems but rather primarily provides a variety of service functions, such as general inspections, servicing, maintenance and repair. (Guarino Aff. ¶ 50.) 3. Thus, SimplexGrinnell and ISPI compete for service customers in the New York and New Jersey markets. (Id. ¶ 7.) Oftentimes, the division of labor works such that a customer will contract with SimplexGrinnell to install a fire alarm system at a particular site, and will thereafter retain ISPI to service and maintain the system. 4. Prior to 2002, SimplexGrinnell and ISPI were allies with a close business relationship. Indeed, ISPI originated in 1987 as a local service company for SimplexGrinnell’s predecessor, the Simplex Time Recorder Company. (Id. ¶¶ 3-4.) From that time until 2001, ISPI, through its wholly owned subsidiary' — a company called Simplex of New York LLC — operated effectively as a branch office of SimplexGrinnell and served as plaintiffs agent and representative in the New York City area. (P. Proposed Findings at 1; Guarino Aff. ¶¶ 3-4.) In 2002, SimplexGrinnell Terminated ISPI’s agency agreement. (Guarino Aff. ¶ 3; Ex. B.) B. Bankruptcy Proceedings and the 2001 Bankruptcy Stipulation 5. On September 26, 2002, ISPI (together with Simplex of New York City, LLC) filed for .Chapter 11 bankruptcy protection. (Guarino Aff. ¶ 8; Ex. D ¶ A.) As part of its bankruptcy case, ISPI instituted an adversary proceeding against SimplexGrinnell, alleging, among other things, breach of contract and various business torts. (Guarino Aff. ¶ 10; Ex. D ¶ B.) 6. On May 6, 2003, the bankruptcy court granted ISPI a preliminary injunction requiring SimplexGrinnell to provide ISPI with all parts and equipment necessary for servicing ISPI’s then existing customer base, at a contractually agreed upon price of fifteen percent off list price, and to provide ISPI with various forms of technical support. (Ex. C at ISPI 0014-15.) 7. In early 2004, with the aid of a court-appointed mediator, the parties resolved their respective claims and entered into a stipulated settlement (the “Bankruptcy Stipulation”), which was ordered by the Bankruptcy Court on March 29, 2004. (Ex. D.) 8. That settlement required SimplexGrinnell to pay $1,100,000 to ISPI (Id. ¶ 2), and voided all prior agreements between the parties, “whether express or implied, based upon any written or oral agreements, statements or correspondence, course of conduct or otherwise” (id. ¶ 5), including the preliminary injunction issued by the Bankruptcy Court (id. ¶ 3). 9. Although the parties agreed to terminate their prior business relationship, the agreement provided ISPI with certain rights above other competitors with respect to ISPI’s customer base existing as of the time of the Stipulation. Specifically, paragraph nine of the Bankruptcy Stipulation requires SimplexGrinnell to “sell service parts (currently identified by SimplexGrinnell with a six-digit product identification number), including ‘patches’ and ‘fixes’ to [ISPI] for the Existing Customer Base at list price and on a ‘cash on delivery’ basis.” (Id. ¶ 9.) “Service parts” are not further defined by the Stipulation (nor are the terms ‘patches’ or ‘fixes’), but the Stipulation requires SimplexGrinnell to provide ISPI with a price list for service parts. (Id. ¶ 11.) 10. The “Existing Customer Base” referred to in paragraph nine is set forth in a separate document and includes the names and addresses of over 200 sites at which ISPI operated as of February 1, 2004 (“ISPI Customer List”). (Ex. E; see also Ex. D ¶ 8.) 11. The Bankruptcy Stipulation also requires SimplexGrinnell to provide ISPI with technical support in the form of technicians from SimplexGrinneU’s “Avenel, New Jersey office, at ordinary time and material rates, on a ‘net 30’ basis; provided, however, that ‘technical support’ shall not include '800 number’ or ‘online access’ or access to any other proprietary information or networks of SimplexGrinnell.” (Ex. D ¶ 10.) 12. The Bankruptcy Stipulation provides for the applicability of New York law (id. ¶ 20), and further provides that “the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs ... incurred in connection with any action or proceeding arising out of or related to the enforcement of this Settlement Agreement ...” (id. ¶ 18). II. Fire Alarm System Panel Programming Software 13. Two of the fire alarm systems manufactured by SimplexGrinnell, called the 4100 and 4100U systems, lie at the heart of this dispute. In particular, this dispute largely centers on whether the software used to program and configure those systems^ — -“the Programmers” — are covered by the requirement of paragraph nine of the Bankruptcy Stipulation of SimplexGrinnell to sell ISPI “service parts ... including ‘patches’ and ‘fixes.’ ” 14. Understanding of the fundamentals of these systems comes primarily from the testimony of Andrew Capowski, SimplexGrinnell’s current Director of Research and Development who has been with the company for over ten years (Capowski Aff. at 1), Charles LoRocco, a service technician for ISPI (LoRocco Aff. ¶ 1), and ISPI’s expert witness, computer science Professor Benjamin Goldberg (Goldberg Rpt. ¶ 1), all of whom the Court found to be credible witnesses. 15. The 4100U is the successor to the 4100 system (Capowski Trial Tr. 45); the “U” in the 4100U stands for “upgrade.” (Capowski Dep. 6.) Both of these systems are comprised of “networks of ‘points’ (smoke detectors, notification devices, etc.) and control panels .... containing] CPUs (central processing units) running Simplex software [ (“panel software”) ] for controlling interaction with the points and other components of the fire alarm system.” (Goldberg Rpt. ¶ 9.) In addition to the panel software, each system also has associated programming software — i.e., the 4100 Programmer and the 4100U Programmer — which is “used to configure [the] control panel once the fire alarm system has been installed in a building.” (Id. ¶ 10; see also Capowski Trial Tr. 20.) The Programmer’s basic function is to configure the corresponding “control panel for a particular installation of the fire alarm system in a building” (Goldberg Rpt. ¶ 11), and to ensure that the control panel knows the system’s configuration so that it can properly operate its hardware (Capowski Aff. § 3.4(2)). 16. Although the 4100U Programmer has several additional features and capabilities compared with the 4100 Programmer (see id. § 2.2), the Programmers are functionally equivalent in the most basic sense in that the 4100 Programmer is used to configure a 4100 panel just as the 4100U Programmer configures a 4100U panel. (Capowski Trial Tr. 19.) However, the Programmers are not interchangeable: 4100 panels must be programmed with the 4100 Programmer and 4100U panels likewise must be programmed with the 4100U Programmer. (See id.) 17. The Programmer software can run either through a laptop computer or it can be run through an on-site network computer, called a graphic command center (“GCC”). (LoRocco Trial Tr. 77; Capowski Aff. at 2.) In either manner, to access and run the programmer software, a software key^ — also known as a “dongle” — ■ must be attached to the computer. (Capowksi Aff. at 2.) Without a dongle, the Programmer will not run. (Capowski Trial Tr. 22.) 18. Each time the Programmer is used, “the computer loads it into the computer’s random access memory (RAM), where it remains until the technician finishes making whatever changes to the system configuration may be necessary. This process could take minutes or hours, depending on the extent of the changes.” (Capowski Aff. at 2.) A. Revisions and Versions of the Programmers 19. There are multiple software revisions associated with each Programmer. Specifically, the 4100 Programmer is associated with revisions 8 and 9, and the 4100U Programmer started with revision 10, and is currently up to revision 12. 20. Further, within each revision there are a number of versions. There are currently approximately fifty versions of the 4100U Programmer, spanning revisions 10, 11 and 12. (Ex. P; see also Capowski Trial Tr. 51.) For example, versions 10.01, 10.50, 10.60, 10.61, 10.60.99 and 10.61.01 are all part of revision 10. (Ex. P.) 21. The particular version of the Programmer must match the panel. Thus, not only must 4100U panels be programmed with the 4100U Programmer, as mentioned above, but more specifically, a 4100U panel installed with version 12.01 must be programmed with version 12.01 of the 4100U Programmer, rather than a revision 11 Programmer, or even version 12.05 of the software. (Id. at 43-44, 46.) B. The J/.100 Programmer is a “Service Part” 22. SimplexGrinnell does not dispute that ISPI has a right to use the 4100 Programmer to service customers on the ISPI Customer List. Indeed, SimplexGrinnell concedes that through the Bankruptcy Stipulation it granted ISPI an implied limited license to use “SimplexGrinnell’s copyrighted panel programming software up to Rev. 9 for the customers, and at the sites, listed on the TSPI customer list.’ ” (P. Mem.ll.) The Bankruptcy Stipulation granted ISPI this license, SimplexGrinnell contends, since the customers on the ISPI Customer List had installed pre-4100U panels that could only be programmed with revisions 9 or earlier. (Id. at 2.) 23. The Bankruptcy Stipulation only requires SimplexGrinnell to sell ISPI “service parts” for customers on the ISPI Customer List, which directly implies that ISPI may then use the parts. (See Ex. D ¶ 9.) Thus, SimplexGrinnell’s concession that ISPI may use the 4100 Programmer to service customers on the ISPI Customer List is an implicit admission that the 4100 Programmer is a “service part.” 24. This finding is supported by the fact that the sole descriptive indicator of “service parts” in the agreement is items “currently identified by SimplexGrinnell with a six-digit product identification number .... ” (Id. ¶ 9.) At the time of the Bankruptcy Stipulation in 2004, SimplexGrinnell sent ISPI a price list identifying revisions 8 and 9 of the 4100 Programmer, with, respectively, the six-digit identification numbers 553-806 and 553-854. (2004 Price List, Ex. F at ISPI 0827-28.) C. The U00U Programmer is a “Service Part” 25. Not only was the 4100 Programmer designated with a six-digit identification number at the time of the Bankruptcy Stipulation, but so was the 4100U Programmer. SimplexGrinnell’s March 2004 price list identifies the “4100U C/D Programmer” with the number 741-213. (Id. at ISPI 0877.) Moreover, the 4100U Programmer continued to be identified on many of SimplexGrinnell’s subsequent price lists with the number 741-213. (2005 Price List, Ex. G at ISPI 0038; 2006 Price List, Ex. H at ISPI 0042; 2008 Price List, Ex. J at 0183.) 26. Of course, as SimplexGrinnell rightly contends, it is not necessarily the case that service parts are coterminous with products identified with six-digit numbers — it may indeed be the case that not all parts represented by six-digit part numbers are service parts and not all service parts are represented by six-digit numbers. However, although the Bankruptcy Stipulation does not equate the two, identification with a six-digit product number at the time of the Bankruptcy Stipulation is strong probative evidence that the product falls within the ambit of “service parts” as used in the Stipulation. Otherwise, the parenthetical description in the Bankruptcy Stipulation that the “service parts” are “currently identified with a six-digit” number — which is the sole indicator provided by the Stipulation as to the meaning of this term — would be rendered largely superfluous. 27. In any event, there is ample additional evidence that the 4100U Programmer is a service part. 28. SimplexGrinnell repeatedly communicated to ISPI that the 4100U Programmer was a service part. The above referenced price lists containing the 4100U Programmer were provided pursuant to the requirement of paragraph eleven of the Bankruptcy Stipulation that SimplexGrinnell provide price lists for its “service parts” upon ISPI’s written request to the General Counsel of SimplexGrinnell. Indeed, each of the prices lists is attached to an e-mail from SimplexGrinneH’s counsel to ISPI. (See Exs. F, G, H, J.) The cover email from SimplexGrinneU’s corporate counsel to Andrew Guarino of ISPI attaching the 2006 price list (which includes the 4100U Programmer) states in no uncertain terms that it is attaching a list of “service parts”: “Attached please find the quarterly price list for service parts pursuant to the settlement agreement.” (Ex. H at ISPI 0039 (emphasis added).) 29. That the legal department repeatedly provided ISPI with “service parts” lists containing the 4100U Programmer and indeed explicitly termed the Programmer a “service part” is significant: the legal department is presumed to be aware of the import of the phrase “service part,” and the attendant obligations of SimplexGrinnell with respect to “service parts” pursuant to the Bankruptcy Stipulation. 30. SimplexGrinnell also appears to have designated the 4100U Programmer as a “service part” in its internal operations. On some of the price lists provided to ISPI, the letters “SP” appear next to the entry for the 4100U Programmer. (Id. at ISPI 0042; Ex. J at ISPI 0183.) Vance Butterfield, the former manager of SimplexGrinnell’s service parts distribution center, testified that “SP” stood for “service part.” (Butterfield Trial Tr. 215.) 31. SimplexGrinnell management considered the 4100U Programmer to be a “service part.” Capowski testified that disks containing the 4100U Programmer were “service parts.” (Capowski Dep. 12-13.) 32. Moreover, the 4100U Programmer falls within the plain meaning of the term “service part.” LoRocco credibly testified that the 4100U Programmer is necessary to servicing a customer site. (LoRocco Trial Tr. 91-96.) Although not necessary for performing standard maintenance and inspection of the fire alarm system (Capowski Trial Tr. 10), a Programmer is necessary to perform functions including changing the sequence of outputs (e.g., lights activating before alarms or vice versa) and altering the volume of a safety broadcast throughout the customer’s system (LoRocco Aff. ¶ 9). LoRocco also testified, and Capowski admitted, that a Programmer is necessary to correct certain bugs and error codes and to restore the system after a system crash. (Capowski Trial Tr. 39-42; LoRocco Aff. ¶ 9; LoRocco Trial Tr. 91-96.) These are clearly “service” functions in any ordinary sense of the term, and the 4100U Programmer is a “part” necessary to perform these functions. Accordingly, even though not every service function requires the Programmer, it is a part necessary to meet customers’ “service” needs. 33. Finally, as the 4100 Programmer has the same function vis-a-vis a 4100 panel as does the 4100U Programmer to a 4100U panel, it would be illogical for one of the Programmer’s to constitute a service part but not the other. Thus, the finding, based on SimplexGrinnell’s implicit concession, that the 4100 Programmer is a “service part” further compels the conclusion that the 4100U Programmer is also a service part. D. Copyright Registrations 34. SimplexGrinnell entered into evidence the copyright registrations demonstrating it as the copyright owner for one version within each of revisions 8 through 11 of the 4100 and 4100U Programmers. 35. Version 8.04 was first published on June 30, 1999, and was registered with the United States Copyright Office effective September 23, 2005. (Ex. 12.) 36. Version 9.02 was first published on May 19, 2000, and was registered with the United States Copyright Office effective July 29, 2005. (Ex. 13.) 37. Version 10.01 — the first version of the 4100U software — was first published on March 27, 2001, and was registered with the United States Copyright Office effective July 29, 2005. (Ex. 14.) 38. Version 11.01 was first published on March 27, 2002, and was registered with the United States Copyright Office effective July 29, 2005. (Ex. 19.) 39. SimplexGrinnell also entered into evidence its application for copyright registration of version 12.01, which was submitted on January 8, 2008, and indicates that version 12.01 was first published on February 12, 2006. (Exs. 23 & 24.) 40. Although SimplexGrinnell asserts that revision 12 is registered, a search of the records of the United States Copyright Office indicates that neither version 12.01 nor any other version within revision 12 is registered. Indeed, the search revealed that the above-referenced versions for which SimplexGrinnell has documented the registration (versions 8.04, 9.02, 10.01, and II.01) are the only four versions of the programming software with existing copyright registrations. III. ISPI’s Access To and Use of the Programmers A. Access 1. Physical Access 41. During the time ISPI functioned as the equivalent of a SimplexGrinnell branch office, it was provided with the branch releases of the Programmer software; thus, ISPI has had access to the early versions of the 4100 and 4100U Programmers since their initial releases. (Guarino Trial Tr. 108-10, 124.) 42. During the pendency of the Bankruptcy Proceedings, ISPI was further provided with newer revisions of the Programmer. To comply with the preliminary injunction issued by the Bankruptcy Court in 2003, William Mitchell, who was at the time SimplexGrinneU’s associate general counsel, provided ISPI with various disks containing all of the then-available versions of the software to date, consistent with materials that had been furnished to all SimplexGrinnell branch offices. (Guarino Aff. ¶ 25; Mitchell P.I. Hr’g Tr. 210.) 43. Accordingly, ISPI was in possession of the 4100U Programmer at the time of the execution of the Bankruptcy Stipulation (Guarino Trial Tr. 123), although none of ISPI’s existing customers had 4100U panels installed as of that time (see D. Proposed Findings ¶ 18). 2. Website Access 44. Throughout the years, as technology advanced, so did the means for obtaining software revisions. Initially, the software was available on a floppy disk, and that eventually evolved to a compact disk. Eventually, with an appropriate password, the 4100U Programmer could be downloaded from the internet through SimplexGrinnell’s website. (Barros Trial Tr. 71; Guarino Trial Tr. 134.) 45. At some point prior to the execution of the Bankruptcy Stipulation, SimplexGrinnell provided Guarino with a password that allowed ISPI to access SimplexGrinnell’s website to download revisions and updates to the 4100U Programmer. (Guarino Trial Tr. 113; Guarino Aff. ¶ 26.) 46. This password continued to work for some period of time following the execution of the Bankruptcy Stipulation, and with this password, ISPI continued to access SimplexGrinneU’s website to download software revisions. (Guarino Trial Tr. 133-34; Guarino Aff. ¶ 26.) ISPI did not limit its use of the software downloaded from the website to the service of customers on the ISPI Customer List. (See Lo-Rocco Trial Tr. 80-81.) 47. At some point in 2005 or 2006, SimplexGrinnell deactivated the password and cut off ISPI’s access to the SimplexGrinnell website. (Guarino Trial Tr. 133; Guarino Aff. ¶ 27.) 48. Thereafter, SimplexGrinnell did not provide ISPI with alternative means to obtain new versions of the Programmer. ISPI requested such products, but SimplexGrinnell did not provide them. (Guarino Trial Tr. 134.) 49. However, SimplexGrinnell never sought to have ISPI return the software it already possessed. (Guarino Aff. ¶ 30; Mitchell P.I. Hr’g Tr. 215-16.) B. Use With Existing Customers 50. As noted above, SimplexGrinnell does not challenge ISPI’s use of the 4100 Programmer for servicing customers on the ISPI Customer List, because the Bankruptcy Stipulation granted ISPI an implied limited license to do so. SimplexGrinnell asserts, however, that this license extended only to the 4100 Programmer, and accordingly, it contends that ISPI is not authorized to use the 4100U Programmer for these (or any other) customers, and that such use constitutes copyright infringement. 51. SimplexGrinneU’s allegations in the operative complaint concerning ISPI’s use of the 4100U Programmer are limited to allegations concerning ISPI’s use of this software at the Chrysler Building Complex and at Macy’s Herald Square. (First Am. Complt. ¶¶ 17-18.) 52. Both of these sites are on the ISPI Customer List. (Ex E at ISPI 0030 (two entries for “Chrysler”: one at 666 3rd Avenue, New York, and the other at 405 Lexington Avenue, New York); id. at ISPI 0031 (listing “Macy’s East, Inc.” located at 141 West 34th Street, New York).) 53. ISPI does not dispute that it has used the 4100U Programmer at these locations. (Guarino Dep. 207.) 54. SimplexGrinnell recently installed new 4100U panels at two sites on the ISPI Customer List for which ISPI continues to have active service contracts- — Kayson 42 Operating Co. and Fox-5 News (Ex. E at ISPI 0030-31) — but SimplexGrinnell has refused to provide ISPI with the corresponding version of the Programmer necessary to program these panels. (Guarino Aff. ¶¶ 97-99.) C. Use With New Customers 1. Service at New Sites 55. ISPI has serviced SimplexGrinnell equipment at a number of sites that were not part of its existing customer base at the time of the Bankruptcy Stipulation using various versions and revisions of the 4100 and 4100U Programmers. These sites include the Hackensack Medical Center, Bergen Regional Medical Center, St. Joseph’s Regional Medical Center, the Bergen County Vocational/Technical Schools, and the Atlantic City Hilton. (See LoRocco Trial Tr. 82-86; Sarni Dep. 23-25.) None of these sites are on the ISPI Customer List. (See Ex. E.) 56. LoRocco has performed programming work at the Hackensack Medical Center on 4100 and 4100U systems using Programmer versions 8.06, 9.02, and 11.11. (LoRocco Trial Tr. 82-83.) LoRocco has also programmed systems — using unspecified versions of the Programmer — within either revision 8 or 9 at the Bergen Regional Medical Center, revision 8 (most likely version 8.04) at St. Joseph’s Hospital, and either revision 10 or 11 at the Bergen County Vocational/Technical Schools. (Id. 84-86.) LoRocco has also programmed 4100 panels at the Bergen County Vocational/Technical Schools, but did not recall the revision used (though it must necessarily be revision 9 or earlier). (Id. 86.) Gerald Sarni, another ISPI technician, has programmed both 4100 and 4100U panels at the Atlantic City Hilton, but did not specify which revisions or versions he used. (Sarni Dep. 23, 25.) 57. Some of these customers had possession of the appropriate Programmer (and dongle) installed on the onsite GCC. (Kg., Guarino Aff. ¶¶ 83, 85; LoRocco Trial Tr. 80.) ISPI sometimes performed the programming work through these GCC network systems (using the Programmer in the customer’s possession), and sometimes through an ISPI laptop computer brought to the site (which required use of software in ISPI’s possession). (Kg., Lo-Rocco Dep. 27-30; LoRocco Trial Tr. 80-81.) 58. For the most part, no evidence was presented concerning the time frame of ISPI’s programming work at these new customer sites. The one exception is that LoRocco testified he began doing service work at the Hackensack Medical Center in February or March 2005, and programmed panels at some point thereafter. (LoRocco Trial Tr. 82.) However, as these are “new” customers, all of this work necessarily occurred following the execution of the Bankruptcy Stipulation in early 2004. 59. ISPI’s ability to service some of these sites has been hindered following the installation of upgraded 4100U panels because SimplexGrinnell either will not provide ISPI with the corresponding programming software, or installed an extra security feature blocking ISPI’s ability to program the panel. (See Guarino Aff. ¶¶ 83 (Hackensack Medical Center), 85 (Bergen Technical Schools); LoRocco Aff. ¶¶ 14-15.) 2. SimplexGrinnett’s Letters to ISPI’s New Customers 60. In the summer of 2006, SimplexGrinnell wrote to two of ISPI’s “new” customers — the Hackensack University Medical Center, and the Bergen Regional Medical Center. 61. In July 2006, SimplexGrinnell wrote to Hackensack University Medical Center that it is the only authorized provider of SimplexGrinnell systems and— without referencing ISPI by name — advised that “there are other organizations that wrongly depict themselves as authorized to provide new Simplex systems or as having technicians with up-to-date factory training” and cautioned against obtaining servicing from companies other than SimplexGrinnell. (Ex. CC.) 62. Shortly thereafter, in August 2006, SimplexGrinnell wrote to the Bergen Regional Medical Center, conveying similar warnings against using non-SimplexGrinnell technicians. The letter to the Bergen Regional Medical Center further noted that SimplexGrinnell understood that ISPI had made certain programming changes to Bergen Regional Medical Center’s fire alarm system, and stated that “ISPI is not certified or authorized by SimplexGrinnell to work on Bergen Regional’s systems.” (Id.) IY. Other SimplexGrinnell Products 63. In addition to 4100U Programmer, ISPI alleges that SimplexGrinnell has failed to furnish it with other “service parts” since early 2006. A. Software Key/Dongles 64. The parties agree that, as noted above, a software key, or dongle, is required to run SimplexGrinnell’s panel programming software. (Capowski Aff. at 2; Guarino Trial Tr. 122.) The dongle is a device that is physically plugged into the computer system a technician wishes to use to program the fire alarm system. (Capowski Aff. at 2.) “The key contains a code, proprietary to SimplexGrinnell, that the panel programming software must recognize before it will run.” (Id.) It is, in effect, a security device that restricts access to the Programmers. (Capowski Dep. 98.) 65. “The key is issued only to authorized SimplexGrinnell personnel or, as in this case, to authorized ISPI personnel, for use with SimplexGrinnell’s copyrighted panel programming software and operates as a safeguard to assure that the panel programming software is being run only by authorized personnel.” (Capowski Aff. at 2.) 66. Unlike the Programmers, a dongle is not revision-specific — a given dongle works across the various SimplexGrinnell systems and the various revisions and versions of the software within each system. (Guarino Trial Tr. 122-23.) 67. SimplexGrinnell contends that dongles are not “service parts” and that ISPI’s admitted use of the dongles in programming SimplexGrinnell fire alarm panels (id. 122) constitutes the misappropriation of trade secrets. Thus, SimplexGrinnell has refused to sell them to ISPI. 68. On May 9, 2006, ISPI submitted a purchase order to SimplexGrinnell for, among other things, two keys with part number 740-989 — described as a “GCC/NPU Level 7 Key” — for use on jobs for 620 Management LLC and Time Warner, two sites on the ISPI Customer List.. (Ex. Q; Guarino Aff. ¶ 62; Ex. E at ISPI0029.) 69. SimplexGrinnell did not fill this order. A letter dated October 12, 2006, from SimplexGrinneH’s counsel to ISPI’s counsel, asserts that though previously listed with a six-digit number, this item is not a “service part,” but rather a “proprietary software key,” whose “proper part number” is “0740-0989.” (Ex. S.) The letter continues: “If it was sold to ISPI in the past as a service part, it was sold in error and arrangements should be made for its return. The erroneous part number has been removed from the service parts list provided to ISPI.” (Id.) 70. SimplexGrinnell’s position is unsustainable. A dongle, even though containing proprietary information, is a service part. 71. First, nothing in the Bankruptcy Stipulation prevents a part containing proprietary information from being a “service part.” 72. Second, SimplexGrinnell cannot change the status of a product as a service part by redesignating the part number from 740-989 to 0740-0989. Capowski, a SimplexGrinnell witness, testified that he understood dongles to be six-digit service parts (Capowski Dep. 99), and the 2008 Price List provided to ISPI lists another dongle, part number 741-727, next to the letters “SP” (Ex. J at ISPI 0183), which Butterfield testified stands for “service part.” 73. More fundamentally, in light of the finding above that the Programmers are “service parts,” and the parties’ agreement that a dongle is necessary for utilizing the Programmers, it is apparent that dongles must also be “service parts.” B. Test Tools 74. Guarino testified that test tools are necessary for testing and inspecting smoke detectors. (Guarino Aff. ¶ 66.) SimplexGrinnell did not attempt to refute that assertion or otherwise explain the function of these tools. 75. Nevertheless, SimplexGrinnell has refused to supply such “test tools” to ISPI. On October 4, 2006, ISPI submitted a purchase order to SimplexGrinnell for the purchase of, among other things, two “Smoke Test Tools” (part numbers 553-760 and 553-805) for use on a site listed on the ISPI Customer List, ATC Management. (Ex. U; Ex. E at ISPI 0029.) 76. SimplexGrinnell did not fill this order, stating that “Part Numbers 553-760 & 553-805 are not on the Repair Parts Retail Price list provided to ISPI.” (Ex. T.) A handwritten note on the purchase order form states that the Smoke Test Tool is “no longer available to [ISPI].” (Ex. U; Guarino Aff. ¶ 68.) 77. SimplexGrinnell attempts to distinguish “service parts” from “technician tools.” Butterfield testified that, in his view and in the current view of SimplexGrinnell, a “service part” is a field replacement unit, or component, such as a smoke detector or a PC board, that a technician can replace to fix the customer system. (Butterfield Trial Tr. 215.) By contrast, Butterfield regards a “technician tool” as something that allows a technician to be able to perform some type of work. (Id. at 216.) 78. Although this distinction may be plausible in the abstract, it is not supportable in the context of the Bankruptcy Stipulation. Under this definition, the Programmers would plainly be a “technician tool” rather than a service part — which is exactly the point Butterfield hoped to make through this testimony. However, for the reasons already discussed, the evidence is overwhelming that the Programmers are “service parts.” 79. Likewise, although the test tools may fit into Butterfield’s definition of a “technician tool,” they are clearly “service parts” within the meaning of the Bankruptcy Stipulation. Both parts were included on the price list provided to ISPI around the time of the Bankruptcy Stipulation and identified with their six digit product numbers (Ex. E at ISPI 0827); these tools are used in the “service” of customers in the ordinary construction of the term; and SimplexGrinnell apparently provided the tools to ISPI for a considerable period of time following the execution of the Bankruptcy Stipulation (as evidenced by the October 2006 notation— approximately two and a half years after the execution of the Bankruptcy Stipulation — that the test tools are “no longer available” to ISPI (Ex. U)). All of these factors indicate that the test tools are service parts within the meaning originally intended by the parties to the Bankruptcy Stipulation. Y. ISPI’s Advertising 80. In promotional marketing e-mails and letters sent to potential clients in New York and New Jersey, ISPI advertised that it specialized in SimplexGrinnell fire alarm systems. Through these promotional materials, as Guarino readily admits, ISPI represented that it was the only company other than SimplexGrinnell that had the ability to program SimplexGrinnell panels. (Guarino Trial Tr. 117-18.) 81. ISPI further represented that it had the software necessary for programming SimplexGrinnell fire panels. (Id at 120-21.) ISPI represented to numerous potential customers that it “possessfes] all the software necessary for programming.” (Eg., Exs. 48-56, 58-59, 62-66, 68-71, 74-77, 161-71, 173-79.) On numerous oecasions, without directly stating that it had access to all programming software, ISPI implied as much in touting to clients that it specialized in, among other things, “programming” Simplex systems. (E.g., Exs. 124-60, 181-94.) Many of these solicitations further stated that ISPI offered a better value and could provide substantial cost savings. (Eg., Exs. 48-56, 58-59, 62-66, 68-71, 74-77, 124-71, 173-79, 181-94.) 82. ISPI frequently stated that it “use[s] factory parts,” (e.g., Exs. 48-56, 62-66, 161-71, 173-79), and on one occasion stated that ISPI has “direct access to parts and support from the factory” (Ex. 45). It is possible to use factory parts without having direct access to them. Andrew Newman, a management consultant for ISPI (Newman Dep. 17), testified that, independent of SimplexGrmnell’s willingness to sell parts to ISPI, it was possible for ISPI to obtain SimplexGrinnell parts through various other companies over the internet. (Id 44-45.) SimplexGrinnell— although maintaining that it is the only authorized distributor — did not dispute that this is so. 83. In over 100 instances, in many of the same solicitations that stated that ISPI had possession of all necessary programming software, ISPI further advertised that it had factory-trained technicians. (Guarino Trial Tr. 120; Exs. 48-56, 58-59, 62-66, 68-71, 74-77, 161-71, 173-79.) ISPI currently employs eight service technicians, at least three of whom were previously employed or trained by SimplexGrinnell. (Guarino Aff. ¶ 52.) Indeed, SimplexGrinnell provided certificates, evidencing training by SimplexGrinnell at some point during the 1990s and 2000s, to four technicians who subsequently worked for ISPI. (See Exs. 198-201 (certificates for Charles LoRocco); Exs. 202-05 (certificates for Igor Miller); Exs. 206-07 (certificates for Olgierd Marcinkiewicz); Ex. 208 (certificate for Gerald Sami).) 84. Andrew Guarino credibly testified — and SimplexGrinnell did not attempt to refute — that “much of the actual technical expertise and know-how needed to service, repair and maintain a fire alarm system is learned in the field by ‘hands on experience.’ ” (Guarino Aff. ¶ 53.) VI. Evidence on Damages A. SimplexGrinnell’s Damages 85. SimplexGrinnell did not attempt to establish any actual damages with respect to any of ISPI’s challenged conduct. B. ISPI’s Damages 86. ISPI has failed to establish any injury flowing from SimplexGrinnell’s failure to sell it service parts or resulting from the letters SimplexGrinnell sent to ISPI’s customers. 87.Relying upon Guarino’s affidavit, ISPI claims that its damages include “loss of a major existing customer (Sunrise Senior Living Facilities in New Jersey), which accounted for $175,000 of annual revenues[,] the imperiling of other existing customers in New York ... which account for $25,000 of annual revenues,” as well its attorneys’ fees and costs in pursuing this litigation. (D.Mem.9.) 88. First, with respect to the Sunrise Senior Living Facilities, Guarino does not provide any facts or even allege that SimplexGrinnell in any way caused the loss of this account. (Guarino Aff. ¶ 96.) Rather, ISPI apparently attempts to establish damages by virtue of the fact that ISPI lost this account during the pendency of this litigation. (See id.) 89. Second, the allegation concerning the “imperiling” of other accounts is explicitly prospective; there is no claim that ISPI has, in fact, lost any opportunity or revenue with respect to these accounts. (See id. ¶ 97.) 90. Accordingly, ISPI has not demonstrated any actual damages. VII. Prior Proceedings 91. SimplexGrinnell initiated this action on April 3, 2007. Within a few months, it moved for a preliminary injunction prohibiting ISPI from copying and using the programming software and requiring it to surrender to plaintiff copies of certain software within its possession. Specifically, SimplexGrinnell relied upon ISPI’s work at Macy’s Herald Square and the Chrysler Building Complex, two of ISPI’s existing customers. The Court held a hearing on the motion for a preliminary injunction on August 28 and 29, 2007. At the conclusion of the hearing, the Court issued on oral opinion denying the preliminary injunction, finding that SimplexGrinnell failed to establish a likelihood of success on the merits that ISPI had infringed upon its copyrights at those two sites. CONCLUSIONS OF LAW The heart of this case is SimplexGrinnell’s claim that much of ISPI’s use of the programmer infringes upon SimplexGrinnell’s copyright. This claim turns in some appreciable measure on the proper interpretation of the Bankruptcy Stipulation, and in particular, paragraph nine of the Stipulation. The resolution of the remainder of the claims — misappropriation of trade secrets, unfair competition, and breach of contract — is largely dependent on the resolution of this copyright claim, and the attendant interpretation of the Bankruptcy Stipulation it requires. I. Copyright Infringement Claim 1. To establish a copyright infringement claim, a plaintiff must show “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); accord, Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.1995). Even where these elements are met, the existence of a license to engage in the challenged copying may be raised as a valid defense to the claim of infringement. Tasini v. New York Times Co., Inc., 206 F.3d 161, 170-71 (2d Cir.2000). Where the parties dispute the existence of a license, the party claiming the benefit of the purported license has the burden to prove its existence. Id. at 171. Where the existence of the license is not in dispute, the copyright owner bears the burden to establish that the copying went beyond the scope of the license. Id. A. Ownership and Registration of a Valid Copyright 2. “A certificate of copyright registration is prima facie evidence that the copyright is valid” and “that the work in question is copyrightable.” Fonar Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir.1997). However, although “[a]n author may have a copyright in all works of authorship regardless of whether he registers that copyright,” Murray Hill Publ’ns, Inc. v. ABC Commc’ns, Inc., 264 F.3d 622, 630 n. 1 (6th Cir.2001), cited by In re Literary Works in Elec. Databases Copyright Litig., 509 F.3d 116, 124 n. 5 (2d Cir.2007), the Copyright Act imposes a registration requirement as a “statutory condition precedent” to bringing suit in federal court, In re Literary Works, 509 F.3d at 124. 3. Section 411(a) of the Act provides that “no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a). Where the work has not been successfully registered, a civil action for infringement may be brought upon preregistration “where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused,” provided that “notice [of the action], with a copy of the complaint, is served on the Register of Copyrights.” Id. This requirement is jurisdictional; if it has not been complied with in respect to a given work, a federal court is without subject matter jurisdiction to entertain any claim of infringement in that work. In re Literary Works., 509 F.3d at 121-25. 4. Registration of the original work of authorship does not extend to confer jurisdiction over claims of infringement in derivative works based upon that original work. It is firmly established in this Circuit that “registration of a claim on an original work does not create subject matter jurisdiction with respect to a suit for infringement of the original’s unregistered derivative.” Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp., 354 F.3d 112, 115 (2d Cir.2003). In In re Literary Works, the Second Circuit squarely rejected the argument that “if a plaintiff brings a single claim based on a registered copyright, the district court acquires jurisdiction over any and all related claims, even if those other claims arise from unregistered copyrights,” 509 F.3d at 122, and reiterated Well-Made Toy Mfg.’s previous holding that a court does not have jurisdiction to entertain a claim of infringement in an unregistered derivative work, even if that claim is coupled with a claim of infringement in the validly registered original work, id. at 122-23. 5. Although the parties presented this issue in terms of SimplexGrinnell’s copyright in the various revisions of the Programmer, each new version constitutes a separate derivative work (see Exs. 12-15, 23 (listing each registered version as a revised computer program that is a derivative work of a previous version)), and thus the issue must be approached in terms of the validity of SimplexGrinneU’s ownership and registration of each version of the Programmer. 6. As evidenced by the certificates of registration, SimplexGrinnell is the registered copyright holder in versions 8.04, 9.02, 10.01 and 11.01 of the Programmer. There is nothing suggesting that SimplexGrinnell is not also the owner of valid copyrights in additional versions, but as these are the only registered versions of the software — a fact of which the Court takes judicial notice, of. Island Software & Computer Serv. Inc. v. Microsoft, 413 F.3d 257, 261 (2d Cir.2005) (noting that district court is entitled to take judicial notice of copyright registrations published in Copyright Office’s registry) — the Court is without jurisdiction to entertain claims based on alleged infringement of any other version. B. Each Use of the Programmer Creates a Copy 7. The parties do not dispute that ISPI has copied SimplexGrinnell’s copyrighted programming software through the use of these works. The Court agrees. To create a potentially infringing “copy” within the meaning of the Copyright Act, 17 U.S.C. § 101, “the work must be embodied in a medium, i.e., placed in a medium such that it can be perceived, reproduced, etc., from that medium (the ‘embodiment requirement’), and it must remain thus embodied for a period of more than transitory duration (the ‘duration requirement’).” Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 127 (2d Cir.2008) (internal quotations omitted). The embodiment requirement is satisfied when a software program is loaded into a computer’s RAM, id. at 128, and Cartoon Network suggested that the duration requirement would be satisfied where the program remained in the RAM for at least several minutes, id., or where the program remained in the RAM until the computer is shut off, id. at 129-30 (finding embodiment for 1.2 seconds to be of insufficient duration). 8. The use of the Programmer satisfies both of the requirements necessary to make a statutory “copy”: each time the Programmer is used, it is loaded into the RAM of a computer, and remains there as long as the programming is being performed, which can last several minutes to several hours. C. Existence of a License 9. As ISPI’s use of the software necessary creates a copy of the Programmer, whether and to what extent ISPI’s use constitutes copyright infringement turns primarily on the scope of authority conveyed by the Bankruptcy Stipulation. SimplexGrinnell does not dispute that the Bankruptcy Stipulation grants ISPI a license to use copyrighted programming software, however, it asserts that this license only allows ISPI to use the 4100 Programmer for sites on the ISPI Customer List and does not allow ISPI to use the 4100U Programmer for any customers, new or old, because none of the existing customers had 4100U panels at the time of the agreement. (P. Mem.ll.) ISPI, by contrast, asserts that it has a license-— through the Bankruptcy Stipulation and otherwise — -which is all encompassing and allows it to use both the 4100 and 4100U Programmers for any and all customers. (E.g., D. Mem. 19-23.) 1. The Bankruptcy Stipulation Grants ISPI a License to Use Copyrighted Service Parts Only For Its Existing Customer Base 10. The scope of the license conveyed by the Bankruptcy Stipulation is a question of contract interpretation. Reinhardt v. Wal-Mart Stores, Inc., 547 F.Supp.2d 346, 352 (S.D.N.Y.2008). “In New York, if a contract is straightforward and unambiguous, its interpretation presents a question of law for the court to be made without resort to extrinsic evidence.” LaSalle Bank Nat. Ass’n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir.2005). “The determination of whether contract language is unambiguous is made by the court with reference to the contract alone.” Waldman ex rel. Elliott Waldman Pension Trust v. Riedinger, 423 F.3d 145, 149 (2d Cir.2005). The language is unambiguous is it “has a definite and precise meaning, unattended by the danger of misconception in the purport of the [contract] itself, and concerning which there can be no reasonable basis for a difference of opinion.” Metro. Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990) (alteration in original). “Language whose meaning is otherwise plain is not ambiguous merely because the parties urge different interpretations in the litigation.” Id. 11. Paragraph nine of the Bankruptcy Stipulation provides: “SimplexGrinnell shall sell service parts (currently identified by SimplexGrinnell with a six-digit product identification number), including ‘patches’ and ‘fixes,’ to [ISPI] for the Existing Customer Base .... ” (Ex. D ¶ 9.) This language is clear and unambiguous and is not quite what either party claims. It grants ISPI the right to purchase — and by implication to use — all “service parts” for its “existing customer base,” regardless of whether the customer required a particular service part at the time of the Stipulation. SimplexGrinnell must sell ISPI service parts, for use with customers on the ISPI Customer List, without limitation on the types of service parts SimplexGrinnell must sell or on the nature of the equipment owned by the existing customers in 2004. Because the meaning of the obligation is clearly spelled out within the four corners of the agreement, parol evidence about the content of the negotiations or what either party subjectively intended to agree to is not admissible. See Reinhardt, 547 F.Supp.2d at 352; Golden Bay Enters., Inc. v. Walmart Stores, Inc., No. 00-CV-6977, 2008 WL 4453195, at *2 (E.D.N.Y. Sept.30, 2008). 12.The finding that the programming software is a service part within the meaning of the agreement thus largely resolves this issue. The parties collectively expended much effort addressing whether the 4100U Programmer is a “patch” or a “fix” of the earlier 4100 Programmer. The clear text of paragraph nine of the Bankruptcy Stipulation obligates SimplexGrinnell to provide ISPI with services parts including'“patches” and “fixes.” It is not clear from the text of the provision what the term “patches” and “fixes” is meant to include. However, what is significant is that the obligation is unambiguously not limited to patches and fixes. It encompasses all service parts — defined in part by reference to the six-digit number — including patches and fixes. Thus, even something that is not a patch or a fix must be sold to ISPI if it is a service part. Because the evidence overwhelming establishes that the 4100U Programmer is in itself a service part, whether or not it is also a patch or a fix is entirely irrelevant. 13. If an item is a “service part” and if it is used for an “existing customer,” then ISPI is entitled to purchase and licensed to use it, and SimplexGrinnell is required to sell it. The corollary is that SimplexGrinnell is not obligated to sell ISPI either (a) items that are not service parts (for use with any customer) or (b) any parts for new customers (service part or not). As a general proposition, this does not mean that ISPI cannot use service parts for new customers (or non-service parts for any customer); it means only that SimplexGrinnell is not required to provide them. However, where as here, a part is protected by another right such as copyright — or, as will be discussed below, trade secret law — ISPI’s ability to use the part may be restricted absent some grant of authority from SimplexGrinnell. 14. The Bankruptcy Stipulation provides precisely that authority with respect to protected service parts, for the limited purpose of servicing customers on the ISPI Customer List. As a result, because the Programmers are service parts, ISPI is entitled to purchase and use them for its customer base existing as of the time of the Stipulation and ISPI’s attendant use of the Programmers in servicing customers on the ISPI Customer List infringes no copyright. 2. The Bankruptcy Stipulation Does Not Give ISPI Any Rights With Respect to New Customers 15. The Bankruptcy Stipulation unquestionably does not grant ISPI a license to use any of SimplexGrinnell’s programming software for servicing customers that were not part of its “existing customer base” at the time of the Stipulation — i.e., customers on the ISPI Customer List. This is clear from paragraph nine of the Stipulation, which states that SimplexGrinnell’s obligation to sell service parts is limited to parts used in the service of ISPI’s “Existing Customer Base.” There is no provision in the Bankruptcy Stipulation that grants ISPI a license to use programming software for any other customer. 16. ISPI notes, correctly, that. the Bankruptcy Stipulation does not explicitly preclude ISPI from using the Programmers with new customers. However, a copyright holder does not need to explicitly prohibit third parties from using its copyrighted material; such a prohibition is the default under copyright law. See 17 U.S.C. § 106 (granting copyright owner exclusive rights to, among other things, make reproductions of the work). 17. Nevertheless, ISPI argues that the Bankruptcy Stipulation grants it a license to use the Programmers for new customers because “one of the chief underpinnings” of that agreement was that ISPI would continue to compete with SimplexGrinnell for new customers, and that it is “axiomatic” that ISPI could not compete for new. business without the ability to use the Programmers. (D. Mem. 14-15.) The Stipulation makes no provision regarding ISPI’s ability to compete with SimplexGrinnell for new business, and there is no evidence of any side agreement that does. There is testimony that SimplexGrinnell did not understand the Bankruptcy Stipulation to “restrict or preclude ISPI from soliciting new customers.” (Mitchell P.I. Hr’g Tr. 215.) Again, this is apparent from the face of the Stipulation; parol evidence of such an understanding is superfluous. However, the absence of a restriction on competition in the Stipulation does not establish an entitlement to compete on any specific terms. 18.ISPI does not even attempt to substantiate its contention that it is “axiomatic” that it could not solicit new business absent a license to use the Programmers. Indeed, there was ample testimony about tasks that ISPI service technicians could perform without this programming software. (See, e.g., Capowski Trial Tr. 10.) But even if it were true that the lack of the Programmers would inhibit ISPI’s ability to compete successfully, the absence of a restriction on competition does not create an affirmative obligation on SimplexGrinnell to provide ISPI with the means to compete on advantageous terms. The Bankruptcy Stipulation says what it says and nothing more, and ISPI has not proven the existence of any side agreements going beyond what it says. The fact that the agreement contemplated that ISPI and SimplexGrinnell would be competitors for new customers for service business does not imply that SimplexGrinnell is required to help ISPI to compete against it. Quite the contrary: if ISPI and SimplexGrinnell are competitors, that suggests that SimplexGrinnell will not provide new products that it develops to ISPI except insofar as it specifically agreed to do or insofar as SimplexGrinnell for its own reasons decides that it is advantageous to do so. 3. No Implied License 19. Beyond the Bankruptcy Stipulation, ISPI argues that it has an implied license to use service parts for new customers. The grant of a license may be implied by “objective conduct that would permit a reasonable person to conclude that an agreement [to use copyrighted work] had been reached.” SHL Imaging, Inc. v. Artisan House, Inc., 117 F.Supp.2d. 301, 317 (S.D.N.Y.2000) (internal quotations omitted). The particular circumstances of how and when ISPI contends that a license was implied are vague, but there appear to be essentially four arguments. None of them is meritorious. 20. First, ISPI argues that it was granted a license prior to the Bankruptcy Stipulation, when ISPI was a distributor for SimplexGrinnell and when ISPI was provided with programming software without any limitation or restriction. (D.Mem.15.) ISPI does not point to any specific conduct from which a license might be implied, but it is reasonable to infer — and SimplexGrinnell does not contest — that ISPI had an unrestricted license to use programming software when it was a SimplexGrinnell agent. But whatever rights ISPI had by virtue of its role as agent were nullified by paragraph five of the Bankruptcy Stipulation, in which ISPI explicitly rejected “any and all agreements” with SimplexGrinnell “whether express or implied, based on any written or oral agreements, statements, or correspondence, course of conducts, or otherwise.” (Ex. D ¶ 5.) This rejection clearly terminates any licenses granted prior to the Bankruptcy Stipulation. 21. Second, ISPI argues that it was granted an implied license after the Bankruptcy Stipulation, by virtue of the fact that SimplexGrinnell did not demand the return of the physical disks containing the programming software. But, physical possession of a copyrighted work does not by itself entitle one to use that work however one wishes. See 17 U.S.C. § 202 (“[0]wn-ership of any material object ... does not of itself convey any rights in the copyrighted work embodied in the object.”) Under certain circumstances, giving over a software disk might imply a general license to use such software, but not in the circumstances of this case. ISPI, after all, did have and continues to have a right to use programming software with respect to customers on the ISPI Customer List, so SimplexGrinnell would not have been within its rights to demand the physical return of the disks containing that software. The fact that SimplexGrinnell did not demand their return therefore cannot be construed as extending a license to use the software beyond the situations in which such use is authorized by the Bankruptcy Stipulation, particularly given the explicit rejection of any prior license agreements contained in the Stipulation. 22. Third, ISPI argues that it was granted an implied license because ISPI continued to have access to the Programmers through the SimplexGrinnell website. (D.Mem.21.) For the same reasons that the failure to request a return of the disks do not imply a license, neither does the failure to promptly deactivate ISPI’s password. Again, the fact that ISPI had physical access to the Programmers does not by itself imply an unrestricted license to use it. Moreover, there is no evidence that SimplexGrinnell intended ISPI to have access to the website at all following the Bankruptcy Stipulation, rather than simply neglecting to turn off the access ISPI already had. There is no credible evidence that SimplexGrinnell even knew that ISPI continued to have such access. In light of the explicit rejection of all prior agreements in the Stipulation, the mere failure to turn off access does not permit a reasonable inference of an ongoing license to use the Programmers for new customers. 23. Fourth, ISPI argues that a license is implied by the fact that SimplexGrinnell knew about and acquiesced in its use of the Programmers. A non-exclusive copyright license may be implied from “a lack of objection” where the copyright owner knows about the use of the work. Keane Dealer Services, Inc. v. Harts, 968 F.Supp. 944, 947 (S.D.N.Y.1997), quoting I.A.E., Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir.1996). ISPI points to two letters sent by SimplexGrinnell in the summer of 2006 to two of ISPI’s new customers as evidence of SimplexGrinnell’s knowledge of ISPI’s use of programming software. The letters refer generally to “nonqualified technicians changing], altering], modifying], or adjusting]” the customer’s system, and one letter refers specifically to ISPI having made “programming changes to one of the nodes on [a] fire alarm system.” (Ex. CC.) To that extent, the letters do suggest that, at least as of that time, SimplexGrinnell was aware that ISPI had and was using the Programmers for new customers. However, the letters clearly express SimplexGrinnell’s view that ISPI is not authorized to perform such work. Thus, the letters are flatly inconsistent with ISPI’s argument that SimplexGrinnell intended, by a pm-ported lack of objection, to grant ISPI a license to use the programming software. Moreover, SimplexGrinnell commenced litigation against ISPI within nine months of sending these letters. It is difficult to conclude from such a relatively short delay that SimplexGrinnell’s lack of objection evidences acquiescence in ISPI’s unauthorized use of the Programmers. 24. Moreover, even if SimplexGrinnell had impliedly granted a license to use the Programmers for new customers by any of these means — by not demanding return of the disks, by failing to prevent access to the website, or by not explicitly demanding that ISPI cease using the software for new customers — SimplexGrinnell was and is free to revoke that license, and it is clear that SimplexGrinnell has done so. Accordingly, even if there had been a implied grant of a license — which it has been determined there was not — it has by now been revoked. Thus, any prospective right on the part of ISPI to the programming software is pre