FROM DOC  55  THESE ARE THE JUICE OF THE MATTER

digEcor’s interpretation of "DRM technology" is inconsistent with the language of the DRM Agreement in at least two ways. First, digEcor’s attempt to extend its exclusivity to non-proprietary components is inconsistent with the very nature of an exclusive license – e.Digital may grant exclusive rights only to "proprietary" components. Second, digEcor’s attempt to extend exclusivity to individual components is inconsistent with, inter alia, paragraph 1 of the DRM Agreement, which identifies DRM technology in "field ready device[s]" as "RBE" alone or "RBE + Secure Content Hiding." Either way, on the face of the DRM Agreement, RBE is an essential component of DRM technology. digEcor’s own extrinsic evidence demonstrates that DRM technology is the combination of components, including RBE. Thus, a security system without RBE cannot be said to use the "complete system" of Addendum One.

For the foregoing reasons, e.Digital is entitled to a ruling as a matter of law that the DRM Agreement provides exclusivity to digEcor for only the complete security system outlined in Addendum A, which requires the use of RBE encryption. Alternatively, the Court may rule that the exclusivity is no broader that the proprietary features in Addendum One, and defer the determination of whether such exclusivity extends to the elements in combination or severally until later in the case.