Summary of decision

digEcor’s Claimed Damages Are Barred.

digEcor may not recover any damages related to the Purchase Order.

digEcor Has Not Proven Damages With Sufficient Certainty.

As the Court has also noted, digEcor’s damage calculations are built on a number of speculative or mistaken assumptions and, therefore, were insufficient to prove the amount of lost profits .

Based on the foregoing, the Court will enter judgment dismissing digEcor’s claim for breach of the Purchase Order with prejudice and on the merits.

2. 28. digEcor has failed to prove by a preponderance of the evidence that it performed under the DRM Agreement, that e.Digital breached the DRM Agreement, and that digEcor is entitled to recover any damages.

1. 29. By failing to perform under the Purchase Order relating to both the order for the 1250 players and the subsequent order of 750 players, digEcor breached the DRM Agreement, which specifically required digEcor to abide by the terms of the Purchase Order.

2. 30. e.Digital timely notified digEcor of its breaches and justifiably refused to accept payment for the DRM technology. As a result, the license created under the DRM Agreement was never consummated, and e.Digital did not breach the agreement. Accordingly, e.Digital is not required to tender to digEcor the source code for its proprietary DRM software, nor has the Court seen any evidence indicating the e.Digital is obligated to provide software patches allowing prior versions of software to function in perpetuity.

3. 31. Further, the DRM technology found in e.Digital’s eVU is outside the scope of the exclusive license granted to digEcor under the DRM Agreement, as discussed above.

1. 32. digEcor failed to prove that it is entitled to any damages under the DRM Agreement. As digEcor never paid any portion of the $25,000 license fee, the damages cap found in the DRM Agreement limits digEcor’s claim for damages to zero.

2. 33. As noted above, there is no evidence or risk of irreparable harm if an injunction does not issue in favor of digEcor. See Port City Prop. v. Union Pac. R. Co., 518 F.3d 1186, 1190 (10th Cir. 2008) (stating that irreparable harm must be shown as a condition to entry of injunction based on contract.) Moreover, the Court affirmatively finds that any injury under the DRM Agreement may be adequately redressed by the payment of money damages. Therefore, digEcor is not entitled to any injunctive relief in connection with this claim.

3. 34. Accordingly, the Court will enter judgment dismissing digEcor’s claim for breach of the DRM Agreement with prejudice and on the merits.

2. 40. Finally, digEcor failed to prove any damages for the alleged violation of the October 2002 Agreement with reasonable certainty.

3. 41. Accordingly, the Court will enter judgment dismissing digEcor’s claim for breach of the October 2002 Agreement with prejudice and on the merits.

42. Based on all of the foregoing, it is hereby ORDERED that all of digEcor’s remaining claims against e.Digital are dismissed with prejudice, and digEcor recovers no damages or injunctive relief.