Fourth Dimension Software v. Der Deutsches Reiseburo GMBh & Co., OHG

I. BACKGROUND

25 DTDE is a German corporation that provides tourism and travel services. Order 26 Denying MTD (dkt. 50) at 1. In 1994, DTDE entered a software development contract 27 with FDS. Id. at 2. The contract contained two provisions relevant here. First, FDS agreed to develop a tour operator automation system for DTDE called Phoenix. Id. After FDS completed Phoenix in 1996, DTDE assumed full ownership of the software. Id. Second, because Phoenix relied on three proprietary software tools that FDS developed— SafePath, EasyPath, and EasyClient (“the Tools”)—DTDE agreed to license the Tools from FDS in connection with its use of Phoenix. Fahimi Decl. (dkt. 84–6) Ex. 2, at 36:02– 19; see also id. Ex. 10, at 62:03–05. In short, DTDE owned Phoenix, but it licensed three of the tools that Phoenix relied on to run. See id. FDS alleges that DTDE breached the contract in two ways. See FAC (dkt. 46) ¶¶ 33–39. First, the contract imposed license caps that limited DTDE’s use of the Tools, and FDS alleges that DTDE breached the contract by exceeding its license caps for the Tools. Id. ¶ 31. Second, the contract…