# SNMP Research, Inc. v. Broadcom Inc.

> District Court, E.D. Tennessee · June 9, 2025

URL: https://www.frixlaw.com/law-library/cases/11068576

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** June 9, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11068576

## How later opinions describe it (automated extraction)

- holding “the sale of computer software does not constitute the sale of tangible personal property for the purposes of” the State Sales and Use Tax statute
- noting the parties “ha[d] not . . . discussed application of Florida’s Uniform Commercial Code . . . which governs contracts for the sale of goods”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

SNMP RESEARCH, INC. & SNMP )
RESEARCH INTERNATIONAL, INC., ) Case No. 3:20-cv-451
)
Plaintiffs, ) Judge Atchley
)
v. ) Magistrate Judge Poplin
)
EXTREME NETWORKS, INC., )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Before the Court are the Motion for Partial Summary Judgment [Doc. 463] of Plaintiffs
SNMP Research, Inc. (“SNMP Research”), and SNMP Research International, Inc. (“SNMPR
International”), and the Motion for Summary Judgment [Doc. 468] of Defendant Extreme
Networks, Inc. (“Extreme”). For reasons that follow, both Motions [Doc. 463 & 468] will be
GRANTED IN PART and DENIED IN PART.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs develop software that implements the Simple Network Management Protocol
(“SNMP”) standard. [Doc. 244 at ¶¶ 30–31].1 The SNMP standard is a way for connected devices
to communicate by sending and responding to messages. [Id. at ¶ 2]. It allows, for example, a
network-connected printer to communicate with a network-connected computer to advise of a
paper jam in the printer. [Id.]. Defendant Extreme designs and manufactures wired and wireless
network infrastructure equipment. [Doc. 538 at 10].

1 For clarity, record citations are to the CM/ECF-stamped document and page number, rather than any internal
pagination.
In 2001, Extreme and SNMPR International entered into a License Agreement (the “2001
License” or the “License”) [Doc. 491-2]. The 2001 License grants to Extreme certain rights to use
Plaintiffs’ software for Extreme’s “Network Switch project.” [Doc. 491-2 at 3]. It also grants
certain redistribution rights. [Id.]. The parties agree that the License authorizes Extreme to use and
distribute Plaintiffs’ software in a single network switch product, namely, the BlackDiamond

10808 10-Slot chassis product. [See Doc. 538 at 11; Doc. 549 at 7]. There is no dispute that
Extreme reported and paid royalties on the BlackDiamond product. In 2011, SNMP Research
registered copyrights in the software that SNMPR International licensed to Extreme. [Doc. 489 at
¶ 29].
In 2017, Extreme acquired part of Brocade Communications Systems, LLC’s business.
[Doc. 489 at ¶ 67]. Brocade also had a license for some of Plaintiffs’ software. [Id.]. Brocade
sought SNMPR International’s consent to transfer portions of the software and/or assign a license
for the software to Extreme. [Id.]. The parties dispute the details of their communications, but
Brocade’s rights/license was not assigned to Extreme.

Plaintiffs filed this action on October 26, 2020, asserting various claims against Broadcom,
Inc., Brocade Communications Systems, LLC, and Extreme Networks, Inc. [Doc. 1]. Against
Extreme, the original complaint asserted only a copyright infringement claim. [Id. at 16].
In an Amended Complaint [Doc. 244] filed March 2, 2023, Plaintiffs allege that during this
litigation, they discovered Extreme had used and redistributed Plaintiffs’ software in scores of
products other than the BlackDiamond. They allege Extreme falsely reported and paid royalties
only on the BlackDiamond product when Extreme had in fact sold numerous other products
containing Plaintiffs’ software, provided to Extreme under the 2001 License.
The Amended Complaint [Doc. 244] (the “Complaint”), asserts three causes of action
against Extreme: Count 3, Copyright Infringement; Count 5, Breach of the License Agreement;
and Count 6, Fraud. [Doc. 244 at 26-32]. As to Count 5, Plaintiffs allege that Extreme breached
the 2001 License by:
a) Failing to report and pay royalties;

b) Using and redistributing Plaintiffs’ software beyond the scope of the use and
redistribution rights granted by the 2001 License;
c) Using and redistributing Plaintiffs’ software after Extreme’s right to do so was
terminated under the 2001 License;
d) Failing to satisfy its obligations with respect to use, copying, transference, protection,
and security of the Program Source provided to Extreme under the 2001 License;
e) Failing to provide information as required by the 2001 License;
f) Failing to maintain SNMP Research’s copyright notice in the software;
g) Failing to give required notice in supporting documentation that copying and

distribution is by permission of SNMPR International; and
h) Failing to return or provide certification of the destruction of the Program Source
provided under the 2001 License.
[Doc. 244 at ¶ 140]. Plaintiffs’ fraud claim is predicated on Extreme’s allegedly false royalty
reporting of the products sold pursuant to the License Agreement and communications about the
royalty reporting.
Extreme now moves for summary judgment as to all of Plaintiffs’ claims. Plaintiffs seek
summary judgment as to their copyright and breach of contract claims, as well as several of
Extreme’s affirmative defenses.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 instructs the Court to grant summary judgment “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). A party asserting the presence or absence of
genuine issues of material fact must support its position either by “citing to particular parts of

materials in the record,” including depositions, documents, affidavits or declarations, stipulations,
or other materials, or by “showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” FED. R. CIV. P. 56 (c)(1). When ruling on a motion for summary judgment, the Court must
view the facts contained in the record and all inferences that can be drawn from those facts in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th
Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine
the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

III. EXTREME’S MOTION FOR SUMMARY JUDGMENT
Extreme moves for summary judgment as to all of Plaintiffs’ claims. As to the breach of
contract claim, Extreme argues (i) all eight subclaims are time-barred; (ii) subclaims (b) through
(f) are preempted by the Copyright Act; and (iii) the record is insufficient to demonstrate a breach
as to subclaims (a), (c), (d), (f), (g) and (h). As to the fraud claim, Extreme contends that Plaintiffs
cannot show a representation of past or present fact that was false when made. On the copyright
claim, Extreme argues that Plaintiffs knowingly submitted inaccurate information in their
copyright registration applications, necessitating a referral to the Copyright Office. Specifically,
Extreme says Plaintiffs’ applications covered more than one “work” and that Plaintiffs submitted
deficient source code deposits with their applications.
a. Breach of Contract
i. Statute of Limitations – All Subclaims
1. Positions of the Parties

Extreme contends Plaintiffs’ breach of contract claims are entirely time-barred by the
applicable statute of limitations. [Doc. 538 at 19–20]. According to Extreme, software license
agreements constitute transactions involving the sale of goods and are thus governed by the UCC.
[Id.]. Tennessee’s UCC provides for a four-year statute of limitations for an “action for breach of
any contract for sale.” T.C.A. § 47-2-725. Because Plaintiffs allege that Extreme breached the
License Agreement in 2005, Extreme says they had to bring their claims no later than 2009. [Doc.
538 at 19–20]. But Plaintiffs did not file the Complaint until October 2020 and did not assert a
breach of contract claim against Extreme until amending in March 2023. According to Extreme,
this renders the entire breach of contract claim untimely.

Plaintiffs respond that Tennessee’s UCC does not apply to the 2001 License because a
license for intellectual property is not a sale of goods. [Doc. 567 at 18]. The provision Extreme
seeks to enforce applies only to a “sale,” which is defined as a passing of title from seller to buyer.
T.C.A. § 47-2-106(1). According to Plaintiff, no title was transferred here. Rather, the License
Agreement granted to Extreme a nonexclusive license to use copyrighted software in a single
product, but title remained with SNMPR International. [Doc. 567 at 18]. The Agreement also
included a variety of use and transfer restrictions. Plaintiffs thus argue that even if software can
sometimes be a “good,” this License was not a sale of goods. [Id.]. Like Extreme, Plaintiffs cite a
number of cases to support their position that a software license is not a contract for the sale of
goods to which the UCC applies.
In reply, Extreme reiterates that the “consensus” position of the courts is that software
license agreements constitute sales of goods under the UCC, citing additional caselaw.
2. Analysis

In relevant part, Tennessee’s UCC provides:
(1) An action for breach of any contract for sale must be commenced within four (4)
years after the cause of action has accrued.
. . .
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved
party’s lack of knowledge of the breach.

T.C.A. § 47-2-725. This chapter of Tennessee’s UCC only “applies to transactions in goods.”
T.C.A. § 47-2-102. “Goods” are “all things (including specially manufactured goods) which are
movable at the time of identification to the contract for sale.” T.C.A. § 47-2-105(1). A “sale”
“consists in the passing of title from the seller to the buyer for a price.” T.C.A. § 47-2-106(1).
While Extreme is correct that Tennessee’s UCC applies to “transactions in goods,” the
remedies provision it seeks to enforce applies more narrowly to “any contract for sale.” T.C.A.
§ 47-2-725(1). Neither party cites a case that squarely addresses whether a software license
agreement can constitute a “contract for sale” under Tennessee law. Nor has the Court found such
a case in its own extensive research. Indeed, the Court has not found a single case applying the
statute of limitations in T.C.A. § 47-2-725 to a license agreement.2 Highland Rim Constructors v.
Atlantic Software Corporation does not answer the question because it involved “the sale of a

2 In Knox County ex rel. Schumpert v. Perceptics Corp., No. 03A01-9803-CH-00089, 1998 WL 668721 (Tenn. Ct.
App. 1998), the at-issue contract appears to have involved both hardware and a license for software. The defendant
argued the UCC applied because most of the assets to be transferred were goods (computer hardware and software),
whereas the services were incidental. The court applied the common law doctrine of nullum tempus occurit regi, which
prevents an action brought by the State from being dismissed due to expiration of the normally-applicable statutory
period of limitations. It therefore found that the UCC did not apply and did not reach the issue of whether the contract
was one for goods or services.
computer system” as well as a software license agreement. No. 01-A-01-9104CV00147, 1992 WL
184872 (Tenn. Ct. App. Aug. 5, 1992) (UCC governed acceptance/rejection of computer “system
purchase and software license agreement”).
In the absence of controlling caselaw, the parties both cite to numerous cases discussing
whether and when the UCC applies to software license agreements. And both parties contend theirs

is the consensus position.
Courts, it seems, disagree on where the consensus lies.3 As one district court observed:
“For every court that finds that the weight of authority favors application of common law and not
the UCC with regarding to software licenses, another finds that courts nationally have consistently
classified the sale of a software package as a sale of a good for UCC purposes.” SAS Institute, Inc.
v. World Programming Ltd., No. 5:10-25-FL, 2016 WL 3435196, at *10 (E.D.N.C. June 17, 2016)
(citation and punctuation omitted). After reviewing the parties’ cited authority and many other
cases, it appears to the Court that end-user license agreements for consumer software packages are
generally treated as sales of goods under the UCC. Beyond this limited proposition, there does not

appear to be a clear consensus on the application of the UCC to software licenses.
In the absence of controlling authority or a clear majority position, the Court sees no reason
to depart from the straightforward language of the statute. The remedies provision Extreme seeks
to enforce plainly applies to “any contract for sale.” T.C.A. § 47-2-725. It is undisputed that the
2001 License did not effect any transfer of title. The UCC defines a “sale” to include a transfer of
title. Accordingly, T.C.A. § 47-2-725 has no application.

3 Contrast Irwin Seating Co. v. Int’l Bus. Machines Corp., No. 1:04CV568, 2005 WL 1475390, at *7 (W.D. Mich.
June 22, 2005) (“Courts have generally held or recognized by implication that Article 2 of the Uniform Commercial
Code . . . applies to contracts involving computer software licenses, even though the agreement may include
obligations to provide other services such as installation, training and maintenance.”), with Attachment Corp. v. Health
Net, Inc., No. C09-1161 MJP, 2010 WL 4365833, at *2 (W.D. Wash. 2010) (“The weight of authority favors
application of common law and not the UCC with regard to software licenses.”).
Several cases are particularly persuasive on this point. In Digital Ally, Inc. v. Z3
Technology, LLC, the court considered whether the repudiation and damages provisions of
Nebraska’s UCC applied to the transaction. No. 09-2292-KGS, 2010 WL 3974674 (D. Kan. Sept.
30, 2010). “Although Article 2 of the Nebraska UCC states it applies to ‘transactions in goods,’
the provisions relating to repudiation and damages are more narrowly defined.” Id. at *9. The

repudiation provisions applied to a “contract,” which was statutorily defined as a contract for the
present or future “sale of goods.” Id. The contract at issue was clearly a license, with no passing
of title. The court reasoned that “[a] pure license agreement, like the one at issue, does not involve
transfer of title, and so is not a sale for Article 2 purposes.” Id. at *9 (quoting Berthold Types Ltd.
v. Adobe Sys., Inc., 101 F. Supp. 2d 697, 698 (N.D. Ill. 2000) (cleaned up)). Based on the plain
language of the contract and the statute, the court held that the repudiation and damages provisions
of the UCC did not apply. Id.
Similarly, in SAS Institute, Inc. v. World Programming Limited, the defendant argued that
the plaintiff was a “seller of goods” as defined in the UCC, and so could not recover any

consequential damages arising from the breach of a software license. 2016 WL 3435196 (E.D.N.C.
June 17, 2016). The court explained that “[w]hile defendant is correct that Article Two of the UCC
‘applies to transactions in goods,’ those provisions that prevent recovery of consequential damages
apply to sales of goods.” Id. at *10; see also Hagen v. BeneTek, Inc., 714 F. Supp. 3d 1075 (E.D.
Wis. 2024) (contract that conveyed right to use custom software did not transfer title and so was
neither a sale of “goods,” nor a “sale” at all); Berthold, 101 F. Supp. 2d at 698 (UCC did not apply
to computer program transaction “because it involves only granting a license and not a sale of
goods”). Reviewing the contract, the court noted that it was called a “license agreement,” that title
to the software did not pass to the defendant, the agreement referred to a “license grant,” and the
plaintiff expressly retained all other rights to the software. Id. Like the 2001 License, the agreement
had restrictions on transfer and assignment. Id.
Extreme’s cited cases do not compel a different result. None are binding and many are not
factually analogous. The only case construing Tennessee law involved a “system purchase and
software license agreement” pursuant to which the plaintiff bought a computer system. Highland

Rim, 1992 WL 184872. The court held that the sale of an integrated computer system was a
transaction in goods and the training provided was an incidental service. Id. Highland Rim
involved the purchase of actual computers, which are unquestionably goods, so it is not factually
analogous.
Extreme relies heavily on Axios, Inc., v. ThinkWare, Inc., but the Court finds it
unpersuasive for several reasons. Case No. 1:15-cv-379, 2015 WL 5029227 (S.D. Ohio Aug. 26,
2015). Axios involved an end-user license agreement (“EULA”) for human resources software.
Perceiving a “consensus” position that software licenses constitute transactions for the sale of
goods under the UCC, the court applied the UCC. Id. While most courts treat a EULA for a

consumer software package as a sale of goods under the UCC, the Court respectfully disagrees
that there is any broader consensus.
Second, the Axios holding relied on Ohio caselaw stating that computer software is a
tangible, movable item, rather than an intangible idea. Construing state tax laws, Tennessee courts
have reached a contrary conclusion. Commerce Union Bank v. Tidwell, 538 S.W.2d 405 (Tenn.
1976) (holding “the sale of computer software does not constitute the sale of tangible personal
property for the purposes of” the State Sales and Use Tax statute).
In the Court’s view, there is a distinction between an end-user license agreement for the
use of an integrated / ready to use software package and the License at issue here. The 2001 License
Agreement authorized the use of a software program, including its source code, in the development
of another product for distribution. The licensed software is not an “off the rack” product that can
be used for a distinct purpose upon purchase or license. Instead, Extreme explains, the at-issue
EMANATE software “helps manufacturers create SNMP Agents and MIB files on their devices.”
[Doc. 538 at 9]. It “does not provide SNMP Agents and MIBS that can be used out of the box,”

but instead is used by network device manufacturers to build their own SNMP Agents and MIBs.
[Id.].
On the spectrum between a EULA for a consumer software package and a transaction for
pure intellectual property, the License Agreement is closer to an intellectual property transaction
than the license in Axios. See Kelly v. Waters Corp., Civ. No. 17-12193-LTS, 2023 WL 2404040,
*9–10 (Feb. 9, 2023) (recognizing that while licensing of a single copy of software may be a
transaction in goods, “[i]ntellectual property rights generally are not goods”);4 Rottner v. AVG
Techs. USA, Inc., 943 F. Supp.2d 222, 230–231 (D. Mass. 2013) (sale of “generally available
standardized software” is “more like the sale of a tangible good,” while “intellectual property . . .

is definitively not a ‘good’ under the UCC”).
Irwin Seating Company v. International Business Machines Corporation is distinguishable
because the license agreement at issue was for a “fully integrated, operable system,” which
included both hardware and software. No. 1:04CV568, 2005 WL 1475390, at *7 (W.D. Mich. June
22, 2005). Similarly, RRX Industries, Inc. v. Lab-Con, Inc., 772 F.2d 543, 546–47 (9th Cir. 1985)
involved a “computer software system,” and the court never referred to the transaction as a license.
It only considered whether the contract was for the “sale” of goods or services.

4 On a motion to dismiss, the Kelly court was unable to determine whether an asset purchase agreement to sell, assign,
and transfer all intangible assets relating to two software programs, including source code and documentation, was
governed by the UCC statute of limitations. Kelly, 2023 WL 2404040 at *9–10.
Next, several of Extreme’s cases are inapposite because the parties agreed that the UCC
applied or never raised the issue. See Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91, 98
(3d Cir. 1991) (“All three parties agree that the terminals and the program are ‘goods’ within the
meaning of” the UCC); Tingley Systems, Inc. v. HealthLink, Inc., 509 F. Supp. 2d 1209 (M.D. Fla.
2007) (noting the parties “ha[d] not . . . discussed application of Florida’s Uniform Commercial

Code . . . which governs contracts for the sale of goods”); Taylor Inv. Corp. v. Weil, 169 F. Supp.
2d 1046 (D. Minn. 2001) (parties agreed license agreement was governed by the UCC); CECG,
Inc. v. Magic Software Ents., Inc., 51 F. App’x 359 (3d Cir. 2002) (applying UCC to determine
whether terms of purchase order modified license agreement without discussing applicability of
UCC to software or license agreement).
Finally, the Court addresses the Sixth Circuit’s footnote in Comshare, Inc. v. United States,
27 F.3d 1142, 1145 (6th Cir. 1994). In Comshare, the issue was whether master source code tapes
and discs constituted “tangible” property, “the purchase of which entitled the company to
investment tax credits and accelerated depreciation deductions calculated on the basis of the full

investment.” Id. at 1142. Looking to the “corresponding category” in the UCC, the Sixth Circuit
observed: “Courts and academic commentators have been moving toward the position that
computer software is a ‘good’ covered by the sales provisions of the Code, and not simply an
intellectual property right which is not covered.” Id. at 1145 n.2.
Comshare interpreted federal tax law, so its mention of the UCC is dicta. More critically,
Comshare’s determination that master source code tapes and discs constitute tangible property for
federal tax purposes is potentially at odds with how the Supreme Court of Tennessee has
approached that question under state law. In Commerce Union Bank v. Tidwell, 538 S.W.2d 405
(Tenn. 1976), the Court explained “that while intellectual processes may be embodied in tangible
and physical material, such as punch cards and magnetic tapes, the logic or intelligence of the
program is an intangible property right; it is this intangible property right which is acquired when
computer software is purchased or leased.” Id. at 407.
There is, moreover, ample authority for the position that the UCC does not apply to
intellectual property, including software.5 In Lamle v. Mattel, Inc., 394 F.3d 1355, 1359 n.2 (Fed.

Cir. 2005), the Federal Circuit rejected the argument that the UCC applied to the license of a board
game for distribution as a contract for the sale of goods. The court held: “This is manifestly
incorrect, since a license for intellectual property, including a license for a patent, is not a sale of
goods.” Id. Similarly, in Eureka Water Co. v. Nestle Waters North America, Inc., 690 F.3d 1139
(10th Cir. 2012), the court ruled that a license for a trademark is not a “good” under the UCC. Id.
at 1147. Relying on Oklahoma law, the court explained that “[i]ntellectual property is not a
movable thing . . . rather, it is a type of intangible property.” Id. And “[a]lthough one can express

5 See Novamedix Ltd. v. NDM Acquisition Corp., 116 F.3d 1177, 1182 (Fed. Cir. 1999) (“Many commercial
transactions are not governed by Article 2 of the UCC: sale of land or securities, assignment of a contract right, or
granting a license under a patent or copyright, to name just a few.”); Sys. Unlimited, Inc. v. Cisco Sys., Inc., 228 F.
App’x 854, 859 (11th Cir. 2007) (unpublished) (sale of intellectual property, including any software, was “not a
transaction in goods” and “the UCC only appl[ies] to contracts that deal predominately with ‘transactions in goods’”);
Honeywell, Inc. v. Minolta Camera Co., LTD, No. CIV.A.87-4847, 1991 WL 841033 (D.N.J. July 19, 1991) (contract
for confidential design information and developmental automatic focus components that did not specify what form
the intellectual property would take predominately “govern[ed] technology rather than goods” and thus UCC did not
apply); Grappo v. Alitalia Linee Aeree Italiane, S.p.A., 56 F.3d 427 (2d Cir. 1995) (where “the sale of a non-exclusive
license for copyrighted material was the core of the contract” the contract was not for the sale of “goods” but general
intangibles / personal property); Kelly v. Waters Corp., Civil No. 17-12193-LTS, 2023 WL 2404040 (D. Mass. Feb.
9, 2023) (observing that while a license of “a single copy of software” is generally a transaction in goods,
“[i]intellectual property rights generally are not goods, as they are not movable things”); Rottner v. AVG Techs. USA,
Inc., 943 F. Supp.2d 222, 230–231 (D. Mass. 2013) (sale of “generally available standardized software” is “more like
the sale of a tangible good,” while “intellectual property . . . is definitively not a ‘good’ under the UCC”); Attachment
Corp. v. Health Net, Inc., No. C09-1161 MJP, 2010 WL 4365833, at *2 (W.D. Wash. 2010) (“The weight of authority
favors application of common law and not the UCC with regard to software licenses.”); see also Beaton v. SpeedyPC
Software, 666 F. Supp. 3d 724 (N.D. Ill. 2023) (construing Canada’s commercial code, software license was not a
“good” because it was an intangible item, “incapable of being physically moved or transferred”); Raak Techs., Inc. v.
Marx CryptoTech, LP, Civ. No. 1:15-cv-4019, 2016 WL 9451440 (N.D. Ga. May 2, 2016) (because intellectual
property license is not a “transaction in goods,” common law statute of limitations applied to software license
agreements); Architectronics, Inc. v. Control Sys., Inc., 935 F. Supp. 425 (S.D.N.Y. 1996) (because the “predominant
feature” of license agreement for use of software “was a transfer of intellectual property rights,” common law statute
of limitations applied rather than the UCC).
the content of intellectual property in a movable medium . . . the intellectual property remains
intangible.” Id. So the grant of a trademark license was not a transaction in goods under the UCC.
Id. These cases illustrate the limited applicability of the UCC where intellectual property is
concerned.
The remedies provision that Extreme seeks to enforce applies to contracts for “sale,” which

by definition requires transfer of title. No transfer of title occurred here. To the extent there is a
majority position on the application of the UCC to software license agreements, it is insufficiently
clear to override the plain language of Tennessee’s statute. Extreme has the burden of proof, both
as the moving party and as the party seeking application of the UCC. It has not met this burden,
so the motion for summary judgment will be DENIED as the statute of limitations argument.
Extreme’s argument is premised on the contention that the UCC applies, so the Court need not
consider Plaintiffs’ contentions regarding fraudulent concealment or the discovery rule.
ii. Failure of Proof as to Subclaims (a), (c), (d), (f), (g) & (h)
1. Subclaims (a) and (c)

Extreme argues that Plaintiffs cannot prevail on subclaim (a), failing to report and pay
royalties, or subclaim (c), using and redistributing Plaintiffs’ software after Extreme’s right to do
so was terminated under the License. According to Extreme, it was not obligated to pay royalties
on unauthorized use of the software, and so its rights under the License were not terminated for
nonpayment of royalties. The Court agrees that the License Agreement imposes no obligation to
pay royalties on unauthorized use of the software.6
There is no dispute that Extreme was obligated under the “Per-Copy Royalty Option,” as
to which the License provides:

6 As the Court will explain, the License does require payment in certain circumstances for unauthorized use or
distribution of the Program Source.
Licensee shall pay a royalty in the amount given in Attachment C for each royalty-
bearing copy distributed under the rights granted herein, which contains all, some,
or part of the Licensed Modules.

[Doc. 491-2 at 12]. “Licensed Modules” are defined by reference to Attachment A. [Id. at 2].
Attachment A states: “Licensed Modules are portions of the Program which are licensed under the
terms of this License Agreement for Licensee’s Network Switch project . . ..” [Id. at 15].
The License therefore obligated Extreme to pay royalties for “royalty-bearing” copies
“distributed under the rights granted” by the License, which contained “all, some, or part” of the
portions of the Program licensed under the Agreement for Extreme’s Network Switch project.
Because the License limits royalty payments to copies “distributed under the rights granted” by
the License, the royalty obligation does not apply to unauthorized use. The parties agree that the
“rights granted” by the License were solely for the BlackDiamond product. So Extreme’s royalty
obligations were likewise solely for the BlackDiamond product.
Plaintiffs offer no contractual explanation for their interpretation of the License. They
emphasize the phrase “all, some, or part of the Licensed Modules.” But their interpretation ignores
the immediately preceding phrase “distributed under the rights granted herein.” They do not
explain why the License should not be applied according to its terms, nor do they explain how an
obligation to pay royalties could extend beyond “the rights granted” by the License. And while the
License does require payment for certain unauthorized use, that is a separate question than whether
it requires royalty payments for unauthorized use.
As to subclaim (c), Plaintiffs contend that Extreme continued to use and redistribute
Plaintiffs’ software after its right to do so was terminated. Plaintiffs point to § 24 of the License as
the basis for termination: “If the license fee and royalties are not paid in a timely fashion . . . the
internal use and redistribution rights . . . shall be terminated.” [Doc. 491-2 at 12; see Doc. 567 at
11]. There is no contention that Extreme failed to pay royalties on the BlackDiamond product.
Since it did not owe royalties on any other products, its rights under the License were not
terminated under this provision. Accordingly, subclaims (a) and (c) of Plaintiffs’ breach of contract
claim will be DISMISSED.
2. Subclaim (d)

Plaintiffs assert that Extreme breached the License by failing to satisfy its obligations with
respect to use, copying, transference, and security of the Program Source. This allegation arises
out § 8 of License Agreement:
The Licensee agrees that it will take appropriate action with its employees and
consultants, by agreement or otherwise, to satisfy its obligations under this License
Agreement with respect to use, copying, transference, protection, and security of
the Program Source, and any other materials provided to the Licensee by SNMP as
a result of this License Agreement.

[Doc. 491-2 at 7]. According to Extreme, there is no allegation that it distributed Plaintiffs’ source
code, so the only possible argument is that Extreme breached § 8 by either (i) using Plaintiffs’
source code in non-BlackDiamond products or (ii) giving employees and consultants access to
source code while installing it on non-BlackDiamond products. [Doc. 577 at 16].
In seeking summary judgment, Extreme does not raise a fact dispute as to whether it used
and copied the Program Source. Rather, it argues that if such use and copying occurred, it would
not violate § 8 of the License as a matter of law. First, Extreme implies it did not “use” Plaintiffs’
source code in non-BlackDiamond products because source code was not installed on these
products. [Id. at 17]. Instead, “source code was converted into non-human-readable object code
and then installed” on non-BlackDiamond products. [Id.]. The suggestion that this does not
constitute “use” is nonsensical. Converting and installing source code is “use” of source code in
any ordinary meaning of the word.
Second, Extreme could only “use” the Program Source through its employees or
consultants. Plaintiffs have never contended that § 8 restricts “sharing” the Program Source with
employees and consultants in accordance with the License. What Plaintiffs contend, and what the
License actually says, is that Extreme was obligated to “take appropriate action” with its
employees to make sure that it satisfied its obligations under the License “with respect to use,

copying, transference, protection, and security of the Program Source.” Extreme asserts this
obligation would arise only if its employees failed to keep the Program Source confidential, if its
use “threatened the confidentiality of the software.” [Doc. 538 at 15; Doc. 577 at 17]. But it does
not point to any language in the License that restricts § 8 to instances of external disclosure or
distribution.
If Extreme used the Program Source in a manner inconsistent with the License Agreement,
it could have done so only by directing the actions of “its employees and consultants.” A
reasonable jury could conclude that such use violated Extreme’s obligation to take “appropriate
action” to satisfy its obligations “with respect to use, copying, transference, protection, and

security of the Program Source” and other materials provided under the License. There is a genuine
issue of material fact, so Extreme is not entitled to summary judgment on subclaim (d).
3. Subclaim (f)
Extreme contends that Plaintiffs have not adduced evidence to substantiate subclaim (f):
that Extreme breached the License by failing to maintain SNMP Research’s copyright notice in
the software. As explained below, the Court concludes that subclaim (f) is preempted.
Even were this not the case, the Court would find that Extreme is entitled to dismissal of
subclaim (f). Extreme carried its burden on summary judgment by demonstrating the absence of
supporting evidence, and Plaintiffs have responded with no more than a scintilla of contrary
evidence. Plaintiffs cite three pieces of purported evidence, but make no effort to explain their
significance. First, Plaintiffs cite a June 30, 2023, email internal to Extreme Networks that states:
“Remove Copyright of SNMP Research and add it in Extreme Networks format for any new file
added.” [Doc. 476-22 at 2]. With no context or explanation, this does little to substantiate
Plaintiffs’ claim.

Second, Plaintiffs cite the report of their expert, Steve Waldbusser, which he clarifies in a
subsequent declaration: “As part of my work in this case I reviewed Extreme source code from
some of its most recent products, including the latest releases of EXOS and SLX. I found that at
least some of these products still contain some SNMP Research source code in certain files but
that the SNMP Research copyright notices were not present in those files.” [Doc. 565 at ¶ 7].
Extreme counters that products Waldbusser identified were released after this action was brought
and include products that are not part of Plaintiffs’ breach of contract claim. [Doc. 567 at 13].
Indeed, Plaintiffs confirm in their own summary judgment briefing that “the SLX/VDX
products . . . are part of Plaintiffs’ copyright infringement claim . . . [b]ut they are not part of

Plaintiffs’ breach of contract claim, because they do not involve Extreme’s obligations under the
2001 License.” [Doc. 580 at 11]. Waldbusser’s declaration does not say whether the source code
he found in “certain files” without copyright notices came from the EXOS or SLX product line,
both of which he reviewed. While the Court draws inferences in favor of the non-moving party, it
cannot make a logical leap to fill a void in the evidentiary record. If the “certain files” to which
Waldbusser refers were found in the SLX product line, they are, by Plaintiffs’ own admission,
irrelevant to the breach of contract claim.
Similarly, Dr. Case asserts he found “[a]t least one” Extreme product that “had indicia of
SNMPR software,” but no copyright notice. [Doc. 563 at ¶ 19]. He does not say that SNMPR’s
source code was found in that product. In a case involving analysis of “hundreds of thousands of
lines of Plaintiffs’ copyrighted code,” [Doc. 580 at 19], undetailed implications are simply
insufficient to survive summary judgment. And Plaintiffs do not explain how these pieces of
evidence add up to substantiate their claim. Plaintiffs have failed to come forward with more than
a scintilla of evidence to support subclaim (f), and Extreme is therefore entitled to judgment on

this subclaim even if it were not preempted.
4. Subclaim (g)
Extreme argues that Plaintiffs have no evidence to support their claim that it breached the
License by failing to give required notice in supporting documentation that copying and
distribution is by permission of SNMPR International. [Doc. 538 at 15]. Plaintiffs respond with
seemingly unconnected claims: that in discovery, they reviewed Extreme’s documentation and
stated that it lacked the required notice, that summary judgment does not require them to prove a
negative, and that Extreme’s release notes and user guide do not contain the notice. [Doc. 567 at
13].

On a motion for summary judgment, a moving party can carry its burden by demonstrating
an absence of evidence to support the nonmoving party’s case. The nonmoving party cannot then
“rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine
issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita,
475 U.S. at 586; FED. R. CIV. P. 56). Plaintiffs make no effort to explain why the pieces of
information they cite are connected to their claim or create a genuine issue of material fact as to
their claim. “It is not sufficient for a party to mention a possible argument in the most skeletal way,
leaving the court to put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.
1997) (quoting Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm’n,
59 F.3d 284, 293–94 (1st Cir. 1995)). Accordingly, Extreme is entitled to summary judgment as
to subclaim (g).
5. Subclaim (h)
Subclaim (h) alleges that Extreme breached the License by failing to return or provide
certification of the destruction of the Program Source provided under the License. This subclaim

arises out of Section § 16, captioned “Default,” which lists certain remedies SNMPR International
has for different breaches of the License. One of those remedies is the right to terminate Extreme’s
internal use and redistribution rights and “require the Licensee to return or provide written
certification of the destruction of all copies of the Program Source . . . and all derivative works of
the Program Source in all forms”. [Doc. 491-2]. The License grants that remedy if Extreme “fails
to observe, keep, or perform” either (i) “any Source confidentiality provisions of this License
Agreement,” or (ii) “any confidentiality, proprietary, intellectual, payment, or other financial
provisions” of the License. [Id.].
Extreme contends it did not breach any of the confidentiality, payment, or financial

provisions listed in § 16, so this requirement does not apply and Extreme had no duty to return or
destroy Plaintiffs’ software. Plaintiffs respond that (i) Extreme failed to pay for its “use” of the
Program Source, violating the payment and financial provisions of the License, and (ii) there is a
triable issue as to whether Extreme breached its “Source confidentiality” obligations by using
source material beyond its authorization.7 [Doc. 567 at 14].

7 In their motion to dismiss briefing, the parties disputed the construction of § 8 and § 16 of the License. Section 16
provides certain remedies “[i]f the Licensee fails to observe, keep, or perform any Source confidentiality provisions”
of the License. [Doc. 491-2 at 9; see Doc. 275-1 & Doc. 281]. Subsection 16(b) provides that “[i]n the event of
unauthorized use or distribution of the Program Source,” certain monetary recovery is available. [Doc. 491-2 at 9]. In
its motion to dismiss, Extreme contended that § 16(b) gives rise to a right to recover only if the unauthorized use or
distribution also violates the Source confidentiality provisions. [Doc. 275-1 at 20-21]. According to Extreme, the
Source confidentiality provisions are located only in the first paragraph of § 8. Plaintiffs agreed that § 8 contained the
Source confidentiality provisions, but argued all of § 8 pertains to Source confidentiality. According to Plaintiffs,
unauthorized use or distribution necessarily violates Source confidentiality. The Court did not resolve this
Extreme’s argument as to subclaim (h) hinges on its interpretation of § 8, which the Court
has rejected. Contrary to Extreme’s claim, § 8 does not concern “only the distribution of ‘Program
Source,’ i.e. source code.” [Doc. 577 at 16] (emphasis added). Section 8 also implicates Extreme’s
obligations with respect to “use, copying, transference, protection, and security of the Program
Source.” [Doc. 491-2 at pg. 7, § 8]. As Extreme raises no other argument for judgment as to

subclaim (h), it is not entitled to judgment in its favor. The parties have not renewed their dispute
as to what constitutes a “Source confidentiality” provision, so the Court has no occasion to revisit
this issue.
iii. Preemption – Subclaims (b) to (f)
Section 301 of the Copyright Act provides, in relevant part:
[A]ll legal or equitable rights that are equivalent to any of the exclusive rights
within the general scope of copyright as specified by section 106 in works of
authorship that are fixed in a tangible medium of expression and come within the
matter of copyright as specified in sections 102 and 103 . . . whether published or
unpublished, are governed exclusively by this title.

17 U.S.C. § 301(a). A state common law or statutory claim is preempted if (1) the work is within
the scope of the subject matter of copyright, and (2) the rights granted under state law are
equivalent to any exclusive rights within the scope of federal copyright. Wrench, LLC v. Taco Bell
Corp., 256 F.3d 446, 453 (6th Cir. 2001). There is no dispute that the software is within the scope
of the subject matter of copyright, so preemption turns on the second prong – the equivalency
requirement.
The equivalency analysis asks “whether the state common law or statutory action at issue
asserts rights that are the same as those protected under § 106 of the Copyright Act.” Id. at 455.
The Sixth Circuit explains:

interpretative dispute, holding only that Extreme, as the moving party, had not demonstrated that the relevant contract
language had one unambiguous meaning. [Doc. 350 at 22].
Equivalency exists if the right defined by state law may be abridged by an act which
in and of itself would infringe one of the exclusive rights. Conversely, if an extra
element is required instead of or in addition to the acts of reproduction,
performance, distribution or display in order to constitute a state-created cause of
action, there is no preemption, provided that the extra element changes the nature
of the action so that it is qualitatively different from a copyright infringement claim.

Id. at 456. In some instances, the state law claim itself provides the “extra element” necessary to
avoid preemption. Stromback v. New Line Cinema, 384 F.3d 283, 304 (6th Cir. 2004). In other
instances, the court must “review the facts as pled by the plaintiff in order to determine whether
the acts giving rise to the state law claim are merely acts of copyright infringement.” Id. So while
“a promise in a breach of contract claim may suffice as an extra element, . . . this determination
must be based upon a review of the plaintiff’s allegations.” Id. at 305.
In Wrench, the court examined the plaintiffs’ breach of contract allegations to determine
whether the promise was to pay for the use of the work, or merely a promise to refrain from
reproducing, performing, distributing, or displaying the work. Wrench, 256 F.3d at 457-58. The
court found that the gist of plaintiff’s implied-in-fact contract claim was a “breach of an actual
promise to pay” for plaintiff’s creative work. Id. at 456. The court held that it was not “the use of
the work alone but the failure to pay for it that violates the contract and gives rise to the right to
recover damages.” Id. So, the state law right was not abridged by “an act which in and of itself
would infringe one of the exclusive rights granted by § 106, since the right to be paid for the use
of the work is not one of those rights.” Id. The Sixth Circuit explained that the “extra element is
the promise to pay,” which changed the nature of the action such that it was “qualitatively different
from a copyright infringement claim.” Id.
With this legal framework in mind, the Court turns to the breach of contract subclaims that
Extreme asserts are preempted – subclaims (b), (c), (d), (e), and (f). Initially, it is not clear that a
“subclaim by subclaim” approach is required, as Extreme suggests. Contracts are ordinarily
viewed as a whole and this Court has taken that approach in analyzing preemption. See
ChampionX, LLC v. Resonance Sys., Inc., 726 F. Supp. 3d 786, 829 (E.D. Tenn. 2024) (“Viewing
the License Agreement as a whole, the Court concludes that plaintiff’s breach of contract claim
involves more than a mere promise to refrain from copying or displaying the work, and therefore,
is not preempted by the Copyright Act.”). On the other hand, the Sixth Circuit has instructed that

determining whether an “extra element” exists “must be based upon a review of the plaintiff’s
allegations.” Stromback, 384 F.3d at 305.
The Court need not determine exactly what degree of specificity is required to analyze
preemption. Extreme is entitled to judgment as to subclaim (c), and Plaintiffs did not respond to
Extreme’s preemption arguments as to subclaims (e) and (f). That leaves subclaims (b) and (d),
both of which are supported by the extra element of an obligation to pay for unauthorized use of
the Program Source. Viewed together or individually, subclaims (b) and (d) are not preempted
because they both implicate an obligation to pay for unauthorized use and are thus qualitatively
different from a copyright claim.

1. Subclaims (b) and (d)
First, Extreme asserts that the Copyright Act preempts subclaim (b), for using and
redistributing Plaintiffs’ software beyond the scope of the use and redistribution rights granted by
the 2001 License. According to Extreme, this claim is based entirely on Extreme’s alleged use and
redistribution of Plaintiffs’ software in non-BlackDiamond products and is thus identical to
Plaintiffs’ copyright claim. Plaintiffs respond that the License Agreement includes both a promise
to pay royalties and a promise to pay for unauthorized use and distribution. Extreme dismisses this
response, noting that it did not move for summary judgment as to the royalties subclaim on
preemption grounds, so the promise to pay royalties is irrelevant. Extreme does not address
Plaintiffs’ invocation of a promise to pay for unauthorized use. Because the License Agreement
creates an obligation to pay for certain unauthorized use and redistribution, Plaintiffs’ claim that
Extreme exceeded the scope of the License is not preempted.
Section 16(b) of the License Agreement gives SNMP Research the right to recover for
unauthorized use or distribution of the Program Source. [Doc. 491-2 at 9].8 Plaintiffs contend this

is a promise to pay that renders the unauthorized use and redistribution claim qualitatively different
from a copyright infringement claim. The Court agrees.
The License gives Plaintiffs a right they do not have under copyright law – “the right to be
paid for the use of the work.” Wrench, 256 F.3d at 456. The promise to pay for unauthorized use
of the Program Source provides the “extra element” that renders the breach of contract claim
qualitatively different from a copyright infringement claim. It is more than “a promise to refrain
from reproducing, performing, distributing, or displaying” the work. See Wrench, 256 F.3d at 457;
Forest Park Pictures v. Universal Television Network, Inc., 683 F. 3d 424, 432–33 (2d Cir. 2012)
(“A claim for breach of a contract including a promise to pay is qualitatively different from a suit

to vindicate a right included in the Copyright Act and is not subject to preemption.”); McDermott
v. Advanstar Comms., Inc., Case No.: 1:98-CV-515, 2006 WL 8454319 (N.D. Ohio March 31,
2006) (claim that licensee agreed to pay for re-use of work and failed to do so was not preempted);
Attachmate Corp. v. Health Net, Inc., No. C09-1161, 2010 WL 519051 (W.D. Wa. Feb. 4, 2010)
(no preemption where licensor had agreed in contract to acquire licenses for unauthorized copies
of software and pay reasonable value of material disclosed); Envoy Techs., Inc., v. Northrop
Grumman Co., Civil Action No. 19-13976, 2020 WL 2079376 (D.N.J. April 30, 2020)

8 Again, the full interpretation of § 16 and its relationship to § 8 is not before the Court. But even if Extreme is correct
that § 16(b) applies only when unauthorized use or distribution violates the License’s Source confidentiality
provisions, that would only limit when the right to payment arises under the License, not eliminate it.
(unpublished) (breach of contract claim not preempted where contract set pre-determined usage
fee for continued use of software after termination of agreement).
Extreme offers no meaningful response to this contention. It does not distinguish Wrench
or explain how this binding Sixth Circuit authority would not apply. It does not argue that the
payment provision is distinguishable from that in Wrench, or suggest that, for whatever reason, it

does not constitute an “extra element.” Extreme wholly fails to address the License’s provision of
a right to recover for unauthorized use of the Program Source.9
To the extent Extreme relies on Ritchie v. Williams, Ritchie only held there was no
meaningful “extra element” that “remove[d] the reformulated claims from the policy of national
uniformity established by the preemption provisions” of the Copyright Act. Id. at 287–88. But
based on Wrench, the extra element that was missing in Ritchie is present here. And as others have
recognized, the Ritchie court did not explain its analysis, casting fairly pointed doubt on the
efficacy of the “extra element” test. Id. at 287 n.3.
Rather than confront this precedent, Extreme urges that the core of Plaintiffs’ unauthorized

use and redistribution allegations is simply a copyright infringement claim. [Doc. 538 at 17]. That
Plaintiffs’ contract rights overlap with those of copyright law does not require preemption. See
Shuptrine, 535 F. Supp. 2d at 897 (“[T]he test is not whether an element overlaps but whether there
is an extra element that changes the nature of the action so it is qualitatively different.”). Nor does
the possibility of double recovery require preemption, since the Court retains the ability to both
instruct the jury and reduce any duplicative damages award. Bowers v. Baystate Techs., Inc., 320
F.3d 1317, 1327–28 (Fed. Cir. 2003) (“entirely appropriate” for jury to award separate damages

9 Extreme does not argue, for example, that a penalty for unauthorized use is different from an affirmative promise to
pay for unauthorized use. Nor does it contend that § 16’s reference to Source confidentiality breaches limits the right
to payment for unauthorized use such that the provision does not apply to the facts before the Court. In this section of
the briefing, Extreme entirely fails to address the right to payment for unauthorized use.
for breach of contract and copyright that arose from the same copying, as judge appropriately
adjusted the award to avoid double recovery).
The contractual restrictions on Extreme’s use and redistribution also support the conclusion
that subclaim (b) is qualitatively different from a copyright infringement claim. “[M]ost courts to
examine this issue have found that the Copyright Act does not preempt contractual constraints on

copyrighted articles.” Id. at 1324 (no preemption of claim for breach of license agreement that
prohibited reverse engineering); accord Laatz v. Zazzle, Inc., 682 F. Supp. 3d 791, 809 (N.D. Ca.
2023) (no preemption where license had restrictions on use of software and breach of contract
claim concerned unauthorized use of software’s end product).
In Recursion Software, Inc v. Interactive Intelligence, Inc., for example, the license
agreement allowed the licensee to distribute “binaries” derived from the subject Voyager software,
but with limitations. 435 F. Supp. 2d 756, 766 (N.D. Tex. 2006). Broadly, it prohibited the binaries
from being packaged with or embedded in (i) hardware, and (ii) software that is marketed and sold.
Id. Plaintiff alleged that defendant violated the license agreement by embedding the binaries into

its program, which was marketed and sold. Defendant argued this breach of contract claim was
preempted. Id.
The court disagreed. Conducting an equivalency analysis, the court observed that “[t]he
license agreement . . . actually allows [defendant] to do things which would, in the absence of the
agreement, constitute copyright infringement.” Id. at 766. “Thus, a licensee’s distribution of
Voyager (or elements of it), would, under certain circumstances, be allowable under the license
agreement, whereas any distribution of the software ‘by sale or other transfer of ownership, or by
rental, lease, or lending’ would violate the Copyright Act.” Id. Defendant’s embedding of the
Voyager program into software that was sold, “not the naked distribution of it,” was the act that
infringed plaintiff’s “private contract rights.” Id. “The scope of a licensee’s permissible
distribution of Voyager is determined by reference to the contract itself, not copyright law.” Id.
Accordingly, the court found that plaintiff’s state law breach of contract claim was not equivalent
to the exclusive rights of copyright and therefore was not preempted. Id. The license agreement
“involve[d] rights and obligations that render [plaintiff’s] breach of contract claim qualitatively

different in kind from a copyright infringement claim.” Id. at 768. Similarly, “[t]he scope of
[Extreme’s] permissible distribution” of the software “is determined by reference to the contract
itself, not copyright law.” See id.
As a practical matter, it makes sense that a software license agreement would provide a
contractual right to recover for unauthorized use in addition to the protections of copyright law.
As others have explained, copyright law provides rights against the world, whereas contract law
provides rights against other parties to the contract. A licensor who provides source code to a
licensee for a limited purpose might well worry that its copyrighted material will be used in an
unauthorized manner, and seek protection against such use. It is far easier to use something you

already have – Extreme actually had Plaintiffs’ source code, and the general public did not. Thus
the License provides an additional right to payment for unauthorized use by the licensee, one that
copyright law does not provide as to the general public. The practical reality of the parties’
relationship further demonstrates how the right to payment makes Plaintiffs’ breach of contract
claim qualitatively different from a copyright claim.
Subclaim (d) is not preempted for the same reason. Subclaim (d) derives directly from § 8
of the License Agreement, alleging that Extreme failed to satisfy its obligations with respect to
use, copying, transference, protection, and security of the Program Source. The License Agreement
gives SNMPR International the right to recover for unauthorized use and distribution of the
Program Source. So to the extent Plaintiffs can show that Extreme breached § 8 by unauthorized
use or distribution of the Program Source, and that § 16(b) applies to that breach, Plaintiffs’
subclaim (d) also has the extra element of a right to payment.
The License gives SNMP Research a right to recover payment for unauthorized use or
distribution of the Program Source. Neither party addresses the scope of that right or whether it is

limited by other provisions of § 16, so that question is not before the Court. For present purposes,
it is enough that the License Agreement includes a right to recover for unauthorized use or
distribution of the Program Source. That right to payment provides an extra element that makes
subclaims (b) and (d) qualitatively different than a copyright infringement claim and thus not
preempted. The License’s confidentiality obligations and restrictions on use of the software and
Program Source further demonstrate that these subclaims arise out of the contract, not copyright
law.
2. Subclaims (e) and (f)
Plaintiffs assert that Extreme violated the License by failing to inform Plaintiffs of

unauthorized copying and distribution (subclaim (e)), and failing to maintain Plaintiffs’ copyright
notice in the software (subclaim (f)). Extreme argues both claims are preempted. Plaintiffs do not
mention either subclaim or the related contractual obligations in their preemption analysis. They
do not set out any position as to why subclaims (e) and (f), specifically, are not preempted.
This omission may be due to the parties’ different approaches to preemption. Extreme
urges a subclaim by subclaim analysis, while Plaintiffs appear to view the contract and alleged
breaches as a whole. Regardless, the Court cannot ignore the absence of any responsive argument
as to the preemption of subclaims (e) and (f). Moreover, the Court has already held that Extreme
is entitled to judgment as to subclaim (f).
“It is well understood . . . that when a plaintiff files an opposition to a dispositive motion
and addresses only certain arguments raised by the defendant, a court may treat those arguments
that the plaintiff failed to address as conceded.” Cunningham v. Tenn. Cancer Specialists, PLLC,
957 F. Supp. 2d 899, 921 (E.D. Tenn. 2013) (quoting Rouse v. Caruso, No. 06-cv-10961-DT, 2011
WL 918327, at *18 (E.D. Mich. Feb. 18, 2011)) (granting summary judgment); Knox Trailers, Inc.

v. Clark, 2022 WL 4372350, *7 (E.D. Tenn. Sept. 21, 2022) (“[W]hen a party fails to respond to
an argument, that argument is generally deemed to be unopposed and the proposition conceded.”
(quoting AK Behav. Health Sys., Inc., 382 F. Supp. 3d 772, 774 (M.D. Tenn. 2019)). In the absence
of responsive argument, the Court concludes that Plaintiffs have waived any argument that
subclaims (e) and (f) are not preempted and Extreme is entitled to judgment on these subclaims.
b. Fraud Claim
Under Tennessee law, a fraud claim requires a plaintiff to show: “(1) that the defendant
made a representation of a present or past fact; (2) that the representation was false when it was
made; (3) that the representation involved a material fact; (4) that the defendant either knew that

the representation was false or did not believe it to be true or that the defendant made the
representation recklessly without knowing whether it was true or false; (5) that the plaintiff did not
know that the representation was false when made and was justified in relying on the truth of the
representation; and (6) that the plaintiff sustained damages as a result of the representation.”
InterMed Res. TN, LLC v. Green Earth Techs., LLC, No. 20-cv-01112, 2022 WL 4486402, at *3
(M.D. Tenn. 2022). Extreme shows that Plaintiffs cannot prove the first and second elements of
their fraud claim, requiring summary judgment for Extreme.
The basis for Plaintiffs’ fraud claim is (i) the submission of royalty reports that only
disclosed sales of the BlackDiamond product, and (ii) two communications regarding royalty
payments and reports. [Doc. 567 at 24–25]. Extreme’s royalty payments and reports for the
BlackDiamond product are not at issue in this lawsuit and the Court has already ruled that Extreme
had no duty to pay royalties on any other product. So the royalty reports do not constitute materially
false statements. Nearly all of Plaintiffs’ caselaw pertains to inaccurate royalty reporting, so it is
inapplicable here.

Similarly, the communications Plaintiffs reference all relate to royalties and/or the single
product licensed under the License Agreement. In a November 2015 email, SNMP Research
employee Patti Sams emailed Extreme employee Fiona Nolan about Extreme’s report of zero sales
of new units on its reports. [Doc. 489-4 at 2]. Sams inquired: “Is it possible some royalties have
missed being reported or has this product reached the end of its life?” Nolan responded that “[t]he
product went End of Sale in 2011” and provided two charts showing end of sale and shipment
reports for the BlackDiamond product. [Id.]. Plaintiffs also point to a similar email exchange in
2013 in which Extreme responded to a royalty report request: “We don’t have any consumption
for the last 3 quarters.” [Doc. 564-6].

Neither of these communications include a false statement. In the absence of any obligation
to report royalties for any product other than the BlackDiamond, no reasonable jury could find that
Extreme’s royalty reports or communications regarding those royalty reports were false. For the
same reason, Extreme’s disclosures on this score were not “partial” or “fragmentary” disclosures.
There is no dispute that Extreme reported all royalties for the BlackDiamond product and that its
communications were accurate as to that single product. So no affirmative duty to disclose arose
out of these communications.
Nor does this issue present a jury question. While the veracity of a statement is often a
question of fact best left to the jury, here it turns on the legal determination that royalties were not
owed on products outside the License Agreement. Extreme is entitled to summary judgment on
Plaintiffs’ fraud claim, which will be DISMISSED.
c. Copyright Claims
“As a prerequisite to bringing a copyright infringement suit, a copyright holder must
register its works.” HealtheState, LLC v. United States, 160 Fed. Cl. 91 (Fed. Cl. 2022). A

certificate of registration satisfies this prerequisite, “regardless of whether the certificate contains
any inaccurate information,” unless two conditions are met:
(A) the inaccurate information was included on the application for copyright
registration with knowledge that it was inaccurate; and

(B) the inaccuracy of the information, if known, would have caused the Register of
Copyrights to refuse registration.

17 U.S.C. § 411(b)(1). If the certificate of registration contains inaccurate information as described
in (b)(1), the Court must “request the Register of Copyrights to advise the court whether the
inaccurate information, if known, would have caused the Register of Copyrights to refuse
registration.” § 411(b)(2).
According to Extreme, Plaintiffs’ registrations are inaccurate because (1) each registration
covered more than one work, and (2) the deposit copy submitted with each registration was
insufficient and/or did not reflect revisions in accordance with the Copyright Office’s binding
rules. [Doc. 577 at 24]. Extreme argues that Dr. Case knew of the relevant requirements, failed to
comply with them, and thus submitted registration applications that knowingly included inaccurate
information. [Id.]. According to Extreme, these knowing inaccuracies require referral to the
Register of Copyrights. [Id.].
Plaintiffs first argue that Extreme cannot show any “knowing” inaccuracy, citing the
extensive communications between Dr. Case and the Copyright Office in which he sought to
comply with all applicable registration requirements. [Doc. 567 at 29–30]. Plaintiffs also challenge
the supposed defects identified by Extreme. As to the “multiple works” theory, Plaintiffs show that
registrations may include multiple programs as a single work and that the existence of multiple
software components was obvious on the face of the application, which indicated “multiple
software ‘Applications’ and ‘Libraries’ in addition to ‘NETMON.’” [Id. at 31].

Similarly, Plaintiffs contend that Extreme is largely incorrect about the purported
deficiencies in the source code deposits, both as to how many pages of source code were submitted
and as to the identification of revisions. Regardless, Plaintiffs argue the number of pages of source
code would have been apparent to the Copyright Office at the time of submission. According to
Plaintiffs, these deficiencies, to the extent they are legitimate, did not cause the Copyright Office
to refuse registration and cannot be realistically considered misrepresentations.
Extreme fails to demonstrate that the applications improperly sought registration of more
than one work and cites no caselaw regarding this requirement. As to the source code deposits, the
Court finds that the failure to meet the page minimum was a deficiency, not an inaccuracy, so

§ 411(b)(2) has no application. Finally, Extreme cites no caselaw to support its position that the
absence of revised material in otherwise valid deposit copies necessitates referral. There is no
dispute that source code deposits were “bona fide” copies; Extreme simply contends that Dr. Case
redacted the wrong portions of the source code in submitting his deposit. Moreover, neither of the
deposit copy issues relate to an inaccuracy reflected in the certificates of registration, as the text
of § 411(b) suggests is required for referral. At most, Extreme has shown that there were technical
deficiencies in the application materials.
i. More than One Work
Extreme contends that each of Plaintiffs’ copyright applications improperly sought
registration of a single work called “NETMON, Associated Applications, and Libraries,” when in
fact each registration covered a broad range of distinct products. The Copyright Act provides for
registration of “the work” or “a work.” See 17 U.S.C.A. §§ 408, 409. Circular 61 indicates that
“[e]ach separately published version of a computer program that contains new, copyrightable
authorship must be registered separately with a new application fee.” [Doc. 539-39 at 4].

Extreme’s argument assumes that because Plaintiffs’ registrations covered multiple “products,”
they necessarily also cover multiple “works.” According to Extreme, the registrations therefore
violate the requirement that each registration cover a single “work,” and are knowingly inaccurate.
Extreme fails to support this argument with relevant legal authority. Other than Circular
61, Extreme only cites the Third Compendium, which did not exist when Dr. Case prepared the
applications.10 Circular 61 does not define a “work,” and Extreme makes no effort to show that the
registrations as filed were improper in view of the Circular’s guidance. Extreme does not
demonstrate (or even say) that each of Plaintiffs’ registrations contained more than one “separately
published version of a computer program that contains new, copyrightable authorship.” [See Doc.

539-39 at 4]. It baldly equates multiple “products” with multiple “works,” without defining either
term. Without argument or legal authority, Extreme asks the Court to simply accept that because
the registrations covered multiple “products,” they must also cover multiple distinct “works.”
Extreme cannot carry its initial burden on summary judgment with so minimal a showing.
Nonetheless, Plaintiffs respond that at least one circuit court has rejected a similar argument. In
Fonar Corp. v. Domenick, 105 F.3d 99, 105 (2d Cir. 1997), defendant argued the plaintiff should
have submitted source code deposits for each of the 78 subprograms that made up its software. Id.

10 “As a general rule, a registration covers one individual work, and an applicant should prepare a separate application,
filing fee, and deposit for each work that is submitted for registration.” U.S. Copyright Office Compendium,
Compendium of U.S. Copyright Office Practices, § 511 (3d Ed. 2021) (hereinafter, “Compendium III”).
at 105. The district court held that the copyright registration was not entitled to a presumption of
validity in part because of this inadequacy, and ultimately invalidated the registrations. On appeal,
the Second Circuit reversed, observing that the Copyright Office had apparently found the
“technical filing requirements” for a certificate of registration to be satisfied. Id. The court
reasoned that “[a] single computer program with an overarching purpose . . . will necessarily be

composed of various modules, subroutines, and sub-subroutines, which through their intra-
program interactions accomplish the ultimate function or purpose of the program.” Id. In light of
this reality, the “Copyright Office may well conclude . . . that the various modules and subprograms
of the maintenance software may all be registered as a single work.” Id.
Fonar is not directly on point and pre-dates the PRO-IP Act framework for evaluating
inaccuracy in registration materials. But any distinctions between Fonar and the instant case are
of little consequence since Extreme cites no contrary authority. It is not Plaintiffs’ burden to
demonstrate that their “multiple software ‘Applications’ and ‘Libraries’” are comparable to the
“various modules, subroutines, and sub-subroutines” discussed in Fonar. Extreme certainly never

explains this purported factual distinction, instead faulting Plaintiffs for failing to use the same
language in describing their own software components.
In the absence of any legal authority equating a “work” with a “product,” Extreme
unsuccessfully attempts to wring a concession out of the record. Extreme claims, for example, that
“Plaintiffs do not dispute that every registration application they submitted covered ‘between a
dozen and 100’ works,” citing the deposition of Dr. Case. [Doc. 577 at 26]. Extreme says that in
his deposition, “Dr. Case revealed, for the first time, that the applications covered more than one
work.” [Id. at 27]. But Dr. Case did not testify that the registrations cover more than one “work.”
He said the registrations cover more than one “product” or “software product.” [Doc. 539-15 at 6-
7]. Indeed, Dr. Case testified that “the whole work is called NETMON, Associated Applications,
and Libraries,” and explained that the “licensed modules” in the parties’ agreement are “subsets
of the larger work.” [Id. at 4 (emphasis added)]. He explained that EMANATE is “part of the
work,” [id.] and confirmed that “[d]epending on how you count,” there are “between a dozen and
100 software products covered by [the] copyright registration.” [Id. at 7] (emphasis added).

Similarly, Extreme says Plaintiffs “concede” that these “were ‘distinct products’ that could
be purchased separately. Pls. Br. at 24 (citation omitted).” [Doc. 577 at 28]. It is no wonder the
citation is omitted, as the quoted material comes from Extreme’s expert, Mr. Greenspun: “I
reviewed the table of contents . . . submitted as part of the deposit . . . and have confirmed that, as
Dr. Case testified, it covers multiple distinct products.” [Doc. 489-13 at ¶ 5]. Greenspun was
apparently instructed that “a ‘work’ can be deemed a distinct work if it is sold separately from
other works.” [Id. at ¶ 2]. Extreme does not recite Greenspun’s opinions or the caselaw on which
he relied, so the Court sees no occasion to address it here.11
Extreme fails to show that a “product” is the same as a “work.” Extreme has not shown the

registrations actually cover more than one “work,” so it cannot show that the applications were
improper, much less knowingly inaccurate. It does not explain how the registrations ran afoul of
Circular 61 or the Third Compendium, which became effective in 2021, years after Dr. Case
prepared the applications. Extreme is not entitled to referral of this issue to the Register of
Copyrights.
ii. Sufficiency of Deposit Copies
Extreme contends that Plaintiffs submitted too few pages of source code as their deposit

11 The reason for this omission may be that both cases referenced in Greenspun’s supplemental declaration [Doc. 489-
13 at ¶ 2, n.2] relate to calculating statutory damages for copyright infringement, not the validity of a registration. See
Sullivan v. Flora, Inc., 936 F.3d 562, 566, 568–69 (7th Cir. 2019); Capitani v. World of Miniature Bears, Inc., 552 F.
Supp. 3d 781, 798 (M.D. Tenn. 2021).
copies and that the pages submitted do not appropriately reflect revisions from prior versions of
the software. Because neither of these purported deficiencies amount to a “knowing inaccuracy,”
Extreme is not entitled to a referral to the Register of Copyrights on this issue.
Copyright regulations require the deposit for a computer program to include “one copy of
identifying portions of the program, reproduced in a form visually perceptible without the aid of a

machine or device, either in paper or in microform.” 37 C.F.R. § 202.20(c)(2)(vii)(A). “Identifying
portions” of a computer program generally means “[t]he first and last 25 pages of the source code
if reproduced on paper,” along with a page containing the copyright notice. 37 C.F.R.
§ 202.20(c)(2)(vii)(A)(1).
For a revised computer program, the copyright notice page plus “the first and last 25 pages
of source code will suffice” if “the revisions occur throughout the entire program.” Id. “[I]f the
revisions do not occur in the first and last 25 pages, the deposit should consist of the page
containing the copyright notice and any 50 pages of source code representative of the revised
material.” Id.12

As an initial matter, the Court seriously questions whether § 411(b) applies to errors in
copyright registration materials absent an inaccuracy in the certificate of registration. The statute
provides:
(b)(1) A certificate of registration satisfies the requirements of this section and
section 412, regardless of whether the certificate contains any inaccurate
information, unless—

(A) the inaccurate information was included on the application for
copyright registration with knowledge that it was inaccurate; and

(B) the inaccuracy of the information, if known, would have caused the
Register of Copyrights to refuse registration.

12 Different rules apply if the program contains trade secret material, which Plaintiffs do not allege here. 37 C.F.R. §
202.20(c)(2)(vii)((A)(2).
17 U.S.C. § 411(b)(1) (emphasis added). “Words in a statute are to be given the meaning that
proper grammar and usage would assign them.” A. Scalia & B. Garner, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 140 (2012). “The” is a definite article; it is “a function word . .
. indicating that a following noun or noun equivalent is definite or has been previously specified
by context.” Nielsen v. Preap, 586 U.S. 392, 393 (2019) (quoting MERRIAM-WEBSTER’S

COLLEGIATE DICTIONARY 1294 (11th ed. 2005)).
Grammatically, “[t]he inaccurate information” in subsection (A) and “the information” in
subsection (B) refer to the preceding phrase: “any inaccurate information” that “the certificate
contains.” The inaccurate information that requires referral, then, is not just any inaccurate
information “on the application for copyright registration.” It is the previously-specified
“inaccurate information” that “the certificate contains.” See Nielsen, 586 U.S. at 393 (“Congress’s
use of the definite article in ‘when the alien is released’ indicates that the scope of the word ‘alien’
‘has been previously specified in context.’”).
Thus, “[t]he important point for our purposes is that a certificate of registration is valid

even though it contains inaccurate information, as long as the copyright holder lacked ‘knowledge
that it was inaccurate.’” Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178, 182 (2022)
(emphasis added) (analyzing argument that “registration certificate was inaccurate”). As to the
source code deposits, Extreme does not assert that the “certificate contains any inaccurate
information.” It does not appear to the Court that Extreme can obtain referral under § 411(b) based
on deficiencies in the deposit copies that did not impact the accuracy of the registration certificate.
On this basis alone, Extreme’s motion for referral as to the source code deposits can be denied.
However, neither party addresses whether § 411(b) applies in the absence of an error in the
certificate of registration, so the Court will consider the parties’ other arguments.
1. Page Count of Source Code Deposits
a. Extreme’s Position
NETMON Version 15
Extreme contends the deposit includes at most 47 pages of source code. According to
Extreme, the deposit includes 25 pages of source code; 22 pages “of what appear to be script files”;

a blank page; and an image of a flowchart. [Doc. 538 at 29]. Extreme contends that script files are
not source code, and even if they were, that would be at most 47 pages. [Id.].
Extreme cites Waldbusser’s testimony here, but he only confirms that a GIF is not source
code and states that documentation describing a program “is generally not considered computer
source code . . . amongst programmers.” [Doc. 541-2 at 3-4].
NETMON Versions 15.2, 15.3, and 15.4
Next, Extreme says that deposits for NETMON Version 15.2, 15.3, and 15.4 each include
at most 47 pages of source code. According to Extreme, the deposit copies for these versions “are
identical to the deposits for NETMON Version[] 15,” save the date of the copyright notice and the

image of a different flowchart. [Id.]. They include, in other words, the same 25 pages of source
code, 22 pages of script files, a blank page, and a page containing a flow chart.
According to Extreme, this means that SNMP Research again submitted no more than 47
pages of source code and also failed to provide “50 pages of source code representative of the
revised material,” as required by copyright regulations for revised computer programs.
NETMON Versions 16, 16.2, 17, and 17.2
Extreme says Version 16 includes 25 pages of “makefiles”; 7 pages of documentation files
in “.man” format; 10 pages of documentation in “.txt” format, and one image file. [Doc. 538 at
30].
Relying on the definition provided in the Third Compendium, Greenspun states his
understanding that materials related to a computer program—such as makefiles, SHA5 hashes,
and documentation—are not “source code.” [Doc. 491-3 at ¶¶ 169–70].13 In his report, Greenspun
opined that “[t]he deposit for version 16 contains no source code at all, but only makefile and some
documentation.” [Doc. 491-3 at ¶ 218]. Greenspun explains that a makefile is not a computer

program, and “cannot be compiled into object code.” [Id.].
Extreme concedes that according to Mr. Waldbusser, makefiles are, in fact, source code.
[Doc. 538 at 30]; [Doc. 478-2 at ¶ 223 (stating that “makefiles are source code”)]. Extreme
nonetheless urges the Court to disregard this opinion because it is “unconnected to the meaning of
that term as used by the Copyright Office.” [Id.]. Even if makefiles constitute source code, there
are only 25 pages of them, not the 50 required by the regulations.
As to NETMON Version 16.2, it likewise includes 25 pages of makefiles, and the
remaining files are identical to the deposit for Version 16, except for the date of the copyright
notice. [Doc. 538 at 30-31].

As to Versions 17 and 17.2, Extreme shows that they include identical deposits: 25 pages
of “README” documentation files; 10 pages of “.man” files, 12 pages of documentation in “.txt”
format, and two pages with images of flowcharts. [Id. at 31]. For the same reasons articulated as
to Version 16, Extreme contends this deposit was insufficient to comply with the copyright
regulations. As to Versions 16, 16.2, 17, and 17.2, Extreme does not contend that the deposits fail
to include pages representative of revised materials.14

13 The Third Compendium, inapplicable here because it did not exist at the time of the applications, defines “source
code” as “a set of statements and instructions written by a human being using a particular programming language . . ..
Typically . . . they are not comprehensible to a computer” so “the source code must be converted into object code.”
Compendium III, § 1509.1(F).

14 See Doc. 577 at 29 (arguing that Plaintiffs do not dispute that Versions 15, 15.2, 15.3, and 15.4 are revised programs
required to reflect revisions).
b. Plaintiffs’ Position
In addition to disputing that any of the purported errors in the registration applications were
knowingly inaccurate, Plaintiffs dispute Extreme’s specific challenges to the deposit copies.
Plaintiffs note that Dr. Greenspun altered his opinion as to what constitutes source code for deposit
purposes in his deposition testimony. [Doc. 567 at 32].15 Specifically, he testified that he now

understood that the Copyright Office does not require source code to be something that is
compiled. [Doc. 489-9 at 22]. Circular 61, for example, explains that for programs written in
“scripted languages, the script is considered the equivalent of source code.” [Doc. 539-39 at 4].
Greenspun maintained that “[i]t still has to be in a programming language,” but could include
“scripting languages.” [Doc. 489-9 at 22].16 He also testified that while he did not consider
makefiles to be source code, the tool he used to analyze lines of code – CLOC – does indeed count
makefile lines as source code. [Id. at 54].
c. Analysis – Source Code Page Count
Absent a knowing inaccuracy, Plaintiffs’ registration certificates are valid even if they

include inaccurate information. The Court first considers whether the deposit copies contain
inaccurate information, and then turns to whether any such inaccuracies were knowing.
There is some uncertainty as to how much source code each deposit contained. While
Extreme relies on Greenspun’s report, he testified as to a change of opinion that Extreme wholly

15 This fact is not acknowledged at all in Extreme’s briefing, which continues to rely on Greenspun’s report despite
his testimony that he modified his opinion on this issue. Extreme’s lack of candor regarding the opinions of its own
expert does not advance its case.

16 Elsewhere in his deposition, Greenspun testified he found “a lot of the text files in this code base are source code.”
[Doc. 489-9 at 51]. “I found a lot of code in files that were - - that had .txt extensions.” [Id.]. While Greenspun does
not say where he found code in the .txt extensions, this testimony undercuts Extreme’s unexplained suggestion that
.txt files do not count towards a source code page minimum. Indeed, Greenspun’s CLOC analysis ultimately included
source code from text files. [Id. at 53].
ignores, explaining that “scripting languages” could be source code. The tool he used in his own
analysis counts makefile lines as source code. And he repeatedly testified that “.txt” files can
contain source code.
Indeed, the record reflects that what constitutes “source code” depends on the context and
who you ask. Asked if HTML can be referred to as source code, Greenspun responded that “it

depends on the context.” [Doc. 489-9 at 55]. He repeatedly testified that he unexpectedly located
source code in text files and that .txt files were counted as code by the CLOC tool he used in his
own analysis. [Id. at 54]. Waldbusser likewise testified that “[s]ometimes files have a mix of things
inside of them that would be considered source code statements,” and that there were “different
contexts that might be considered source code,” even if he did not, as a programmer, personally
consider them to be source code. [Doc. 541-2 at 2]. He testified that documentation describing a
program is “generally not considered source code . . . amongst programmers.” [Id. at 4].
Deposits for Versions 15, 15.2. 15.3, and 15.4 each contained 25 pages of source code and
22 pages of script files. Extreme’s expert testified that scripting languages could be considered

source code under the Copyright Office’s definition. So these versions contained at least 47 pages
of source code.
As to Versions 16, 16.2, 17, and 17.2, Greenspun’s original opinion was that makefiles do
not count as source code because they cannot be compiled into object code. In his deposition, he
clarified that he came to understand that the Copyright Office does not require source code to be
something that is compiled. [Doc. 489-9 at 22]. Waldbusser says makefiles are source code, and
based on his deposition, Greenspun no longer appears to dispute this. So based on the testimony
of Extreme’s expert, at least 25 pages of these deposits could reasonably be considered source
code.
Versions 16, 16.2, 17, and 17.2 also apparently include 7 pages of documentation in “.man”
format. No one explains what a “.man” file is or why it is not source code. Greenspun seems to
have considered it documentation rather than source code, though neither his report nor the
deposition excerpts say why. [Doc. 491-3 at ¶ 218 (opining that Version 16, which includes “.man”
files, consists of only a makefile and documentation)]. These versions also include 10 pages of

documentation in “.txt” format. Other than Greenspun’s assertion that Version 16 contains no
source code, we have no explanation for why these 10 pages do not count. Greenspun repeatedly
testified that he located many text files that contained source code, so the mere fact that they are
text files is not enough to exclude them. Based on the record, a jury could find that Versions 16,
16.2, 17, and 17.2 each contain at least 25 pages of source code from the makefiles, and possibly
more.
With this baseline the Court considers whether the failure to satisfy the 50-page minimum
for source code deposits constitutes a “knowing inaccuracy.” It does not. There is a material
difference between an inaccuracy and a technical deficiency. Take an example: the Court orders

the parties to file a brief of at least 10 pages, with citations to the record. If a party files a 6-page
brief, the filing would be deficient – it does not comply with the Court’s order. If the party instead
files a brief with false statements about the evidentiary record, that filing would inaccurate. In the
first instance, the deficiency would be readily apparent to the Court. In the second, the Court would
have to examine the party’s record citations to discover the inaccuracy.
The absence of, e.g., 3 pages of source code does not render a 47-page source code deposit
“inaccurate,” only deficient. The purpose of § 411(b)(2) is not to police enforcement of the
Copyright Office’s technical and administrative requirements. “The deposit requirements are
designed to aid the Copyright Office in its record-keeping duties.” KnowledgePlex, Inc. v.
Placebase, Inc., No. C 08- 4267 JF, 2008 WL 5245284, *9 (N.D. Ca. Dec. 17, 2008) (plaintiff’s
failure to provide first twenty-five pages of relevant source code did not render deposit copy
defective). Here, the Court can safely presume the Office would not have refused registration due
to the insufficient number of source code pages because it did not, despite the deficiency appearing
on the face of the deposit. See Freeplay Music, LLC v. Dave Arbogast Buick-GMC, Inc., Case No.

3:17-cv-42, 2019 WL 4647305, *9–10 (copyright office “indirectly answered” questions sought
to be referred by granting registrations and accepting supplemental registrations with knowledge
of purported defects). It does not take background information or technical expertise to discern
that a blank page is not source code.
At least one court in this Circuit has reached a similar conclusion on comparable facts. In
Libertas Technologies, L.L.C. v. Cherryhill Management, Inc., the defendants sought referral
under § 411(B)(2). No. 1:10-cv-935, 2012 WL 6085264 (S.D. Ohio Dec. 6, 2012). They argued
that “the application failed to comport with various regulatory and other requirements because of
defects that were visible on the face of the deposited work, such as the presence of black diagonal

lines that obstructed the copyrighted material and allegedly rendered it illegible.” Id. at 11. The
court held that § 411(b)(1)(B) “clearly is not satisfied” for such information because “the Register
of Copyrights would have observed the ‘defects’ but nonetheless did not refuse registration.” Id.
Defendants also claimed misrepresentations in the date the work was created, the authors of the
work, and whether the work was created by copying segments of code from other works. But they
“failed to cite any authority to show that such matters satisfy the statutory definition of ‘inaccurate
information.’” Id.
Similarly, the “inaccuracies” Extreme alleges as to the number of pages of source code in
each deposit are not inaccuracies at all. They are just deficiencies that the Copyright Office is
perfectly capable of identifying and requesting correction of, as it deems necessary. Moreover, as
to several of the applications, the Office explicitly told Dr. Case: “The copy contains the required
source code to register the computer program.” [Doc. 544-20 at 8-9]. The page count of the source
code deposits does not, standing alone, constitute an inaccuracy under § 411(b)(2).
Extreme’s cited authority is largely inapplicable on this issue, involving either the validity

of the deposit copy, an incorrect date of publication, or both. See Torres-Negron v. J & N Records,
LLC, 504 F.3d 151 (1st Cir. 2007) (reconstruction created from memory, without access to original
work, is not a valid copy for registration purposes); SellPoolSuppliesOnline.com v. Ugly Pools
Arizona, Inc., 804 F. App’x 668 (9th Cir. 2020) (plaintiff’s false representation that deposit copy
depicted website as it appeared on publication date rendered certificate invalid where it in fact was
a later version of the website); Resp. of Reg. of Copyrights to Req. Pursuant to 17 U.S.C. §
411(b)(2) at 1, LADS Network Solutions v. Agilis Sys., LLC, No. 19-cv-00011, Dkt. 137 (E.D. Mo.
Aug. 3, 2011) (had Office known that deposit included source code created after publication date
in application, it would not have registered work but would “have attempted to resolve variance”

by giving applicant option to correct/supplement); Resp. of Reg. of Copyrights to Req. Pursuant
to 17 U.S.C. § 411(b)(2) at 1, HEALTHeSTATE, LLC v. United States, 1:18-cv-34C, Dkt. 187 (Fed.
Cl. June 28, 2022) (Office would have refused registration had it known publication date was
incorrect, works contained copyrightable material from undisclosed prior published versions,
and/or included material added after publication date).
Each of these cases speaks to an actual inaccuracy in the registration materials of which
the Copyright Office could not have known, not an overlooked filing error. Unlike the page count
of a deposit, whether an application includes a “bona fide” copy of the work and an accurate
publication date are not “minor” matters – they go to the heart of entitlement to copyright
protection. They are also (usually) uniquely within the knowledge of the applicant. The Copyright
Office is not tasked with confirming an applicant’s representations about, e.g., the date of creation
or publication, and generally could not do so anyway. In short, “[t]his Court need not engage in
the type of guesswork § 411(b) was intended to prevent.” Freeplay, 2019 WL 4647305 at *10.
Despite significant independent review, the Court has been unable to locate any case granting

referral to the Register on grounds as hyper-technical as those urged by Extreme.
2. Representative Revisions
a. Positions of the Parties
Next, the issue of representative revisions in Versions 15, 15.2, 15.3, and 15.4. As to
Version 15, Extreme somewhat overstates Greenspun’s report as stating “none of those files
changed as compared to the earlier version.” [Doc. 538 at 29]. Greenspun opines that “[t]he
deposited 48 pages of code printout . . . do not relate to the new requirements of SNMPv3,” which
Greenspun characterizes as “[t]he significant change” between the versions. [Doc. 491-3 at ¶ 213].
He states that the deposit pages “do not relate to the software licensed by Extreme and included in

its switches and routers.” [Id.]. Finally, he states: “[T]he the first page of the deposit for version
15 (which can also be referred to as version 15.1) is a printout of /xnetmon/include/Bar.h and all
of the lines of code printed were present in the Rel_14_2_1_1 version that I examined on the source
code computer.” [Id. at ¶ 214]. So Greenspun has opined that the deposit does not “relate to” the
most significant change between the versions and that the lines of code on the first page of the
deposit were present in the prior version. Greenspun’s opinion is more nuanced and limited than
Extreme’s contention that none of the files changed as compared to the earlier version.
Greenspun’s opinion is clearer as to Versions 15.2, 15.3, and 15.4. He opines that the
deposit for Version 15.2 “contains all of the same files as the deposit for 15.1,” with the exception
of an image. [Doc. 491-3 at ¶ 215]. “[A]ll of these files are identical to the ones deposited for
15.1,” except the copyright date. [Id.]. He states that “there is not even a hint as to the revisions
that might have occurred in version 15.2 relative to previous versions.” [Id.]. Similarly, he says
that the deposit for 15.3 is the same as for 15.2, and the deposit for 15.4 is the same as for 15.3,
except with updated copyright dates. [Id. at ¶¶ 216-17].

Plaintiffs do not actually argue that their source code deposits contained source code
representative of the revised material in any amount. Instead, they contend that all changes between
the versions were marked with a unique identifier. Dr. Case explains that he did not just submit
the first and last 25 pages of source code. He also submitted a 75-200 page table of contents / file
directory. For each source code file included in the copyright registration, the table of contents
identifies the file’s path and name, and the unique identifier, or “hash,” computed from the file’s
contents. [Doc. 489 at ¶ 33]. “The table of contents provides the path for a particular subdirectory,
and then for source code files in that subdirectory, it shows the file name, the unique SHA1
signature, and the starting page within the very large PDF file where the source code listing for

each file begins.” [Id.]. Dr. Case took the entire source code and documentation for each program
and then redacted all but the first and last 25 pages of the PDF, but preserved the table of contents.
[Id. at ¶¶ 33-34]. The deposit thereby “identif[ies] all the files being registered by name, file path,
and SHA1 signature.” [Id. at ¶ 34]. Dr. Case understood the SHA1 signature as allowing SNMP
Research to clearly demonstrate what files were included in the copyright registration “by
producing the original file, computing its SHA1 signature, and then showing that its SHA1
signature matches the corresponding SHA1 signature for that file in the SHA1 value in the table
of contents accompanying the applicable registration with the Copyright Office.” [Id. at ¶ 35].
Greenspun testified about his review of the registration materials and confirmed that each
of the submitted PDFs also included a file listing with hash values for each file name and path.
[Doc. 489-9 at 41]. He confirmed that the listing of source code files that was provided with the
registration was “a lot more” than what was provided for the source code deposit. [Id.]. He
confirmed that if you have the hash number in the registration materials and you have the source

code file that is listed, you can determine with a high degree of confidence whether a particular
file matches the file used to generate the hash, i.e., the source code for the registered program.
[Doc. 489-9 at 44].
b. Analysis – Representative Revisions
The record reflects that the deposit copies for Versions 15, 15.2, 15.3, and 15.4 did not
comply with the Copyright Office’s regulations because the pages submitted were not
representative of revised material. Plaintiffs do not dispute that the source code deposit itself did
not reflect revised material. The question becomes whether the failure to deposit representative
revisions constitutes an “inaccuracy” and if so, whether that inaccuracy was “knowing,” under the

framework articulated in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 142 S. Ct. 941 (2022).
Extreme cites no caselaw to suggest such a deficiency constitutes a “knowing inaccuracy”
under § 411(b). On one hand, the absence of representative revisions is not something that would
have been apparent on the face of the deposit copy. Unlike a too-short deposit, the Copyright
Office would not necessarily know that the submission did not contain source code representative
of the revisions. In this respect, the error is somewhat analogous to an incorrect publication date
or submission of a reconstruction.
On the other hand, there is no dispute that the source code deposit for each registration was
in fact from the software version Plaintiffs sought to register. The error, as Extreme argues, is not
that the material is inaccurate, but that the wrong excerpt was submitted. Dr. Case submitted the
first and last pages of the source code, but it turns out very few revisions were represented in the
deposit. The regulations therefore required him to instead submit 50 pages of source code
representative of the revised materials. He did, however, ensure that any changes from the prior
versions were identifiable. And Extreme does not dispute that the “hashes” identify which files

changed. Its objection to the hashes is that they do not show how the files changed, only whether
they changed. But the regulation does not require a redline of revisions, or that the revised material
even be distinguishable from the original/prior version. In view of the comprehensive
identification of all changed files, the Court finds that the absence of representative revised
material was a technical error rather than an inaccuracy.
But even if the error constituted an inaccuracy in the deposit, the Court would find it was
not a knowing one. In deciding whether an applicant was actually aware of, or willfully blind to,
legally inaccurate information, the Court considers circumstantial evidence, “including the
significance of the legal error, the complexity of the relevant rule, the applicant’s experience with

copyright law, and such other matters.” Unicolors, 595 U.S. at 187-188. Extreme does not contend
the legal error was significant. It could not credibly do so, given that Dr. Case simply submitted
the wrong portion of the right source code. To the contrary, Extreme correctly concedes that these
issues “may seem relatively minor individually.” [Doc. 538 at 31]. Yet Extreme urges that the
Office “regularly refuses registration based on similar registration issues, no matter how minor.”
[Id.]. That may be so, but the Court’s review under Unicolors considers the significance of the
legal error. That the error here was minor weighs against Extreme’s position that it was a knowing
error.
The complexity of the rule, however, weighs slightly in Extreme’s favor. The regulation is
not complex. It is, however, vague. There is no guidance on what “representative of the revised
material” means. Circular 61 essentially just recites the language of the regulation, so it adds little.
A non-lawyer, even one with some copyright experience, could reasonably believe that a file
directory with hashes for each change complied with the requirement that revisions be represented

in the deposit. That is particularly true where the Office told Dr. Case that the copy contained the
required source code. [Doc. 544-20 at 2, 9].
Finally, the applicant’s familiarity with copyright law. Dr. Case certainly had more
experience with copyright law than most non-lawyers, but there is no evidence he was an expert
in copyright applications. He corresponded with the Copyright Office at some length to iron out
what he characterized as errors in his applications and submitted corrections and updates for all or
some of the applications. [Docs. 544-20, 539-33 & 544-21]. In relation to Versions 15.2 and 15.3,
at least, the Copyright Office stated: “The copy contains the required source code to register the
computer program.” [Doc. 544-20 at 9]. As to Version 15, the Copyright Office apparently noted

the lack of artwork in the first and last 25 pages of source code that Case submitted. [Doc. 544-20
at 2]. Dr. Case thus “changed the ordering of the pages” so that at least one example would appear.
[Id.; Doc. 544-21 at 9-10].
Bad faith or fraudulent intent are not required for an error to constitute a “knowing
inaccuracy.” But evidence of good faith and diligence surely cut against a finding of willful
blindness. Dr. Case’s documented attempts to correct deficient filings undermine Extreme’s
suggestion that he was willfully blind to the requirements for registration. There is no credibility
dispute to resolve and no evidence to weigh that prevents the Court from reaching this conclusion.
The record demonstrates that Dr. Case made numerous changes to his applications in an attempt
to comply with the instructions of the Registration Specialists and the filing requirements of the
Copyright Office. For at least two of the subject versions, he was explicitly told by the Registration
Specialist that his deposit contained the required source code to register the computer program. In
short, the deposit copy errors Extreme identifies do not rise to the level of “knowing inaccuracy.”
Extreme points to technical deficiencies, not knowing inaccuracies. Under any standard of

review, it has therefore failed to show that referral is required.17
IV. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
a. Copyright Claims
A claim for copyright infringement requires a plaintiff to prove “(1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are original.” Feist
Publications, Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340, 361 (1991).
The first prong “tests the originality and non-functionality of the work . . . both of which
are presumptively established by the copyright registration.” Lexmark Int’l Inc. v. Static Control
Components, Inc., 387 F. 3d 522, 534 (6th Cir. 2004) (abrogated on other grounds by eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388 (2006)). The parties agree that prong one is presumptively
established by a valid copyright registration, though that presumption is rebuttable. [Doc. 498 at
21; Doc. 549 at 12]; 17 U.S.C. § 410(c). “Registration of a valid copyright . . . is prima facie
evidence that the work is entitled to protection.” ECIMOS, LLC v. Carrier Corp., 971 F.3d 616,
628 (6th Cir. 2020).

17 In so holding, the Court notes that Extreme does not suggest that a different standard of review applies to its request
for referral than the summary judgment standard applicable to the remainder of its motion. In other words, Extreme
does not contend that an unsupported allegation of knowing inaccuracy requires referral, a position the Court has
previously rejected. [Doc. 362]. For avoidance of doubt, the Court would find that Extreme is not entitled to referral
under any standard, because it has not alleged that Plaintiffs’ copyright registrations contain a knowing inaccuracy or
supported such an allegation with citation to the record.
The second element “tests whether any copying occurred (a factual matter) and whether
the portions of the work copied were entitled to copyright protection (a legal matter).” Lexmark,
387 F. 3d at 534. “Both prongs of the infringement test . . . consider ‘copyrightability,’ which at
its heart turns on the principle that copyright protection extends to expression, not to ideas.” Id. at
538.

“Originality has a low threshold, requiring only that the author ‘independently created’ a
work with ‘some minimal degree of creativity.’” Premier Dealer Servs., Inc. v. Allegiance Adm’rs,
LLC, 93 F. 4th 985, 989 (6th Cir. 2024) (quoting Feist, 499 U.S. at 345). “Authors fulfill
originality’s requirements by making non-obvious choices from among more than a few options.”
Id. (cleaned up, citation omitted). “Most works will satisfy this low standard of creativity, no
matter how humdrum the subject matter.” Id.
The low threshold for originality nonetheless has three “qualifications,” two relevant here:
merger and scenes a faire. Both doctrines grow out of the foundational principle that copyright
protection attaches “only to the expression of the idea – not the idea itself.” Mazer v. Stein, 347

U.S. 201, 217 (1954).
First, merger “arises when there is only a single way to express a given set of facts.”
Premier, 93 F. 4th at 990. “[W]here there are only limited ways to express an idea, courts consider
the idea and expression to ‘merge,’ and the expression of the idea becomes unprotected.” Weisblat
v. John Carroll University, 748 F. Supp. 3d 517, 531 (N.D. Ohio 2024); Lexmark, 387 F.3d at 535
(“Where the expression is essential to the statement of the idea, . . . or where there is only one way
or very few ways of expressing the idea . . . the idea and expression are said to have merged.”
(quotation and citation omitted)). Put differently, “if the unprotected elements are intertwined with
any copyrightable elements, [then] the unprotected elements are stronger, and the expression will
not be protected.” Id. (quoting RJ Control Consultants, Inc. v. Multiject, LLC, 100 F. 4th 659, 673
(6th Cir. 2024)).
“‘Scenes a faire’ – settings, in other words, that must be done,” arise “when the
expectations of an industry or subject matter require an author to express facts in a certain way,
rendering only a few choices ‘feasible in that setting’ even if alternatives theoretically remain.” Id.

(quoting Lexmark, 387 F.3d at 538). The doctrine applies “when external factors constrain the
choice of expressive vehicle.” Lexmark, 387 F.3d at 535. “In the computer-software context, the
doctrine means that the elements of a program dictated by practical realities – e.g., by hardware
standards and mechanical specifications, software standards and compatibility requirements,
computer manufacturer design standards, target industry practices, and standard computer
programming practices – may not obtain protection.” Id.
Scenes a faire and merger may be at issue in either prong of the infringement test, since
both relate to copyrightability. Lexmark, 387 F.3d at 538 (while idea-expression dichotomy and
accompanying doctrines typically arise as to second prong, both prongs consider copyrightability);

see also Premier, 93 F.4th at 992 (“The concepts underlying scenes a faire and merger . . .
sometimes bear on the threshold originality of the copyright.”); Mason v. Montgomery Data, Inc.,
967 F.2d 135, 138 (5th Cir. 1992) (noting that the Fifth Circuit “has applied the merger doctrine
to the question of copyrightability,” not solely to the question of infringement).
i. Positions of the Parties
SNMP Research holds registrations from the Copyright Office in all eight subject Works.18
Plaintiffs show that the registration certificates “constitute prima facie evidence of the validity of

18 The Works are identified as follows: TXu 1-706-718, TXu 1-722-248, TXu 1-772-250, TXu 1-738-956, TXu 1-
707-158, TXu 1-738-954, TXu 1-707-157, and TXu 1-738-958. [Doc. 489 ¶ 41].
the copyright and of the facts stated in the certificate.” [Doc. 549 at 12 (quoting Freeplay, 2019
WL 4647305 at *3)]. Plaintiffs argue that the Works were independently created and easily exhibit
“some minimal degree of creativity.” See Premier, 93 F.4th at 989.
Plaintiffs rely on their technical expert, Mr. Waldbusser, who “conducted an analysis of
SNMPR’s registered code in Extreme’s products to confirm that this code possessed at least a

minimal degree of creativity.” [Doc. 545 at ¶ 15]. Recall that Plaintiffs’ software implements a
software standard: the Simple Network Management Protocol (“SNMP”). As Waldbusser
explained, “[s]tandards such as SNMP define an external format and external behavior so that
software written by different authors can share information without miscommunication or error.”
[Doc. 478-2 at ¶ 14]. Waldbusser opines that his analysis “revealed numerous examples of creative
choices made by SNMPR’s programmers in authoring this code,” and cites to specific examples
in his opening and rebuttal reports. [Doc. 545 at ¶ 15]. He explained that while the SNMP standard
specifies some of the behavior of SNMP software, it leaves the implementation details to the
discretion of the software developer. [Doc. 478-2 at ¶ 21].

Plaintiffs’ opening brief challenges the contrary opinions of Extreme’s expert, Dr.
Greenspun. [Doc. 549 at 14].19 Asked to confirm that the subject software has at least a minimal
degree of creativity, Greenspun testified: “That wasn’t part of my analysis, so I really can’t say.
I’d have to . . . go back and start from scratch and look at it all again.” [Doc. 489-9 at 8]. Plaintiffs
maintain that Greenspun’s approach was wrong from the start because he sought to “disprove
creativity by pointing to a few isolated elements of the software” that he believed were
unprotectable, such as scenes a faire. [Doc. 549 at 14]. Plaintiffs argue that “[t]he relevant question

19 Plaintiffs separately move to exclude certain of Greenspun’s opinions [Doc. 461], but as the Court will explain, that
does not prevent a ruling on their summary judgment motion.
is not whether the work contains unprotectable elements, but rather whether the work as a whole
contains some minimal amount of creativity.” [Id.].
Greenspun testified that “there might be some dusty corner of the EMANATE agent that
doesn’t run afoul of merger or scenes a faire,” but as to the “day-to-day core of it,” he believed it
was not entitled to copyright protection. [Doc. 489-9 at 68]. His analysis did not purport to be an

“exhaustive review of merger or scenes a faire for the entirety of the SNMP agent source code,”
which he suggested would have been immensely time-consuming. [Id.]. Rather, he opined that any
implementation of the SNMP standard was going to be tightly constrained by that standard. [Id.].
Greenspun conceded, however, that the SNMP Research code included capabilities that were not
part of the SNMP standard, for example, the postmosy program. [Id. at 18].
Finally, Plaintiffs show that Waldbusser’s comparison between the subject software and a
third-party implementation of the SNMP standard disproves Greenspun’s assertion that the
protocol dictated the expression of Plaintiffs’ code. [Doc. 549 at 15]. Waldbusser compared SNMP
Research’s code with a product named Net-SNMP, an open-source SNMP implementation made

by a third party. [Doc. 545 at ¶ 16]. He found “that the releases have a nearly total absence of
similarities,” sharing only “22 short snippets in common” out of the more than 325,000 lines of
code that he analyzed. [Id.]. According to Plaintiffs, if Greenspun were right that implementing
the SNMP standard eliminated the chance of creativity, one would expect the source code for these
two implementations of the standard to be similar, rather than almost completely dissimilar.
All this, in Plaintiffs’ framework, goes to the first element – ownership of a valid copyright.
The second element of Plaintiffs’ prima facie case is “copying of constituent elements of the work
that are original.” Feist, 499 U.S. at 361. Plaintiffs show there is no dispute that Extreme copied
thousands of SNMP Research’s copyrighted files into its product code bases. [Doc. 549 at 16].
Waldbusser’s analysis “confirmed that Extreme copied literally thousands of SNMPR’s files with
SNMPR’s copyright notice into Extreme’s product code base, and that most of the source code in
these files was copied verbatim into Extreme’s products without any modification by Extreme.”
[Doc. 545 at ¶ 12]. Waldbusser found that “for source code files copied into products, the vast
majority of the source code lines (more than 90% and in some products as high as 96%) remained

exactly identical to lines from SNMPR’s registered source code, down to individual details of
phrasing, punctuation, structure, organization, and commentary provided by SNMPR’s
programmers.” [Id.]. Waldbusser also located SNMP Research’s “postmosy” code in Extreme
products, copied with only “slight changes.” [Id.].
Extreme’s expert Greenspun confirmed in his deposition that direct copying is easy to
prove using a “diff” command, as Waldbusser did. [Doc. 489-9 at 19]. He testified that using a diff
command, it was generally straightforward to see which lines of code were copied. [Id.]. For a
“normal full-sized commercial program, . . . if lines are identical, it’s probably because one was
copied from the other.” [Id.]. Greenspun was asked if he disputed Waldbusser’s analysis regarding

Extreme’s use of SNMP Research source code in Extreme products, and testified that he had
“never heard of anybody disputing that,” was not aware that it was in dispute, and did not do his
own analysis of copying. [Id. at 20].
Extreme responds that “[m]aterial questions exist as to whether Plaintiffs’ software is
original and, if Extreme copied Plaintiffs’ software, whether Extreme copied protectable or
unprotectable elements.” [Doc. 498 at 21]. Extreme disputes Plaintiffs’ suggestion that as long as
a work has some original components, the entire work is protected. [Id.]. To the contrary, “[t]he
mere fact that a work is copyrighted does not mean that every element of the work may be
protected.” Feist, 499 U.S. at 348. Instead, “copyright protection may extend only to those
components of a work that are original to the author.” Id.
Extreme asserts that both merger and scenes a faire are exceptions to originality that
prevent resolution of originality on summary judgment. Extreme shows that the SNMP standard
is a freely available internet standard that enables communication between a device running SNMP

software designed to manage other devices (“managers”) and the managed devices themselves
(“agents”). [Doc. 498 at 23]. As Waldbusser explains, the SNMP standard “defines the format
required for messages between managers and agents as well as the behavior required by the
managers and agents.” [Doc. 475-20 at ¶ 69]. According to Waldbusser, however, the standard
“does not dictate how those various requirements must be met.” [Id.]. The standard simply
“specifies enough to ensure that SNMP software written by different developers can successfully
communicate even if the developers use completely different strategies for implementing the
standard.” [Id.].
Greenspun testified as to his opinion that SNMP Research’s software that implements the

SNMP standard is dictated by that standard. [Doc. 489-9 at 9]. He testified that for “these programs
that implement standards . . . the idea is coming from somewhere else, and any departure from that
idea is going to be a mistake.” [Id. at 8]. According to Greenspun, “that does limit the number of
ways to express the idea.” [Id.].
Greenspun testified that a programmer implementing a standard in a software program
could still generate “minor differences” such as variable names. [Doc. 489-9 at 10]. But he believed
that renaming variables “isn’t creative,” and programmers would consider it to be the same code.
[Id.]. He agreed there were “probably” other ways that a programmer could express creativity in
implementing the SNMP standard, but said he simply had not seen any in Waldbusser’s reports.
[Id. at 11]. Greenspun also agreed that if two programmers separately set out to implement the
SNMP standard, the source code would look different. [Id.]. Function names would likely be
different, as well as abbreviations and variable names. [Id.]. Greenspun testified that it was
unlikely that two programmers could make different decisions about how software components
would communicate with each other internally. [Id.]. He opined that there was “a pretty limited

scope for creativity there.” [Id.]. In sum, Greenspun concluded that even with minor differences
in naming, etc., “ultimately, it’s going to kind of amount to the same thing . . . given the constraints
of the standard.” [Id. at 12]. He also testified that there was “quite a bit” of third-party code in
Plaintiffs’ software. [Doc. 489-9 at 10].
ii. Greenspun’s Opinions
Before analyzing the parties’ contentions, the Court notes that the pendency of Plaintiffs’
motion to exclude certain of Dr. Greenspun’s opinions does not prevent resolution of the
dispositive motions. Neither party suggests otherwise. In relevant part, Plaintiffs move to exclude
Greenspun’s opinions regarding copyright registration requirements and copyrightability. [Doc.

552]. They argue he cannot opine as to either because he is not a lawyer or an expert in copyright
law, applied the wrong legal principles, and did not conduct a creativity analysis of the entirety of
Plaintiffs’ source code. [Id. at 7-14].
Relative to copyrightability, Plaintiffs’ argument relates primarily to Greenspun’s legal
conclusions. Permitting expert testimony that misstates or misapplies the law risks confusing or
misinforming the jury. That is not an issue on summary judgment. The Court is not concerned with
his legal conclusions, which can be easily separated from his technical observations (many of
which Plaintiffs cite in support of their own arguments). Moreover, Extreme does not rely on
Greenspun’s conclusion that Plaintiffs’ software is not copyrightable, but on his technical analysis.
Considering Greenspun’s technical (as opposed to legal) opinions does not change the
outcome of either dispositive motion. See Cook v. Erie Ins. Co., 478 F. Supp. 3d 658, 664 (S.D.
Ohio 2020) (“[T]he Sixth Circuit has clarified that although expert opinion may embrace the
ultimate issues to be decided by the jury, the expert is not permitted to draw a legal conclusion and
is only permitted to state an opinion that suggests the answer to the ultimate issue or that give[s]

the jury all the information from which it can draw inferences as to the ultimate issue.” (citation
and punctuation omitted)). The Daubert motion will be resolved in due course.
iii. Analysis – Copyright Claims
Plaintiffs are entitled to summary judgment as to the prima facie elements of their copyright
claim. Plaintiffs present valid copyright registrations and point to specific examples of the
creativity of their software, with supporting expert opinion. As to copying, they provide
overwhelming and largely undisputed evidence that Extreme copied their source code. Extreme
responds that Plaintiffs’ copyright protection is limited by the doctrines of scenes a faire and
merger. Extreme relies on Greenspun’s opinion that any implementation of the SNMP standards

will be tightly constrained by the standard itself. Yet Greenspun does not opine as to whether the
software exhibits minimal creativity. He acknowledged that the SNMP standard does not entirely
dictate its implementation, and conceded that Plaintiffs’ software had capabilities that do not
appear in the standard. Extreme fails to identify any specific portion of Plaintiffs’ software that it
contends is unoriginal, relying on general reference to the SNMP standard. It provides no hint as
to which purportedly unprotectable elements should be filtered out due to merger or scenes a faire.
Nor does it make any effort to rebut Plaintiffs’ showing that specific elements of the software were
original and were copied by Extreme.
First, any conflict between the parties’ experts does not preclude summary judgment.
Greenspun maintains that the SNMP standard tightly constrains and largely dictates any
implementation of that standard. Waldbusser disagrees, opining that the implementation is left to
the programmer.
The Court need not (and cannot) resolve that dispute in order to find in Plaintiffs’ favor.

Greenspun conceded that Plaintiffs’ software had capabilities not found in the standard, including
the postmosy program. [Doc. 489-9 at 18]. He also agreed that the “getMany” and “getOne”
functionalities

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11068576. Public record. Not legal advice.