COVETRUS INC et al v. ACTIAN CORPORATION

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
COVETRUS, INC. and VETERINARY
DATA SERVICES, INC.,
Plaintiffs,
v.
ACTIAN CORP.,
Defendant.
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2:21-cv-00097-SDN
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the Parties’ 	cross motions for summary
judgment. Plaintiffs Covetrus, Inc. and Veterinary Data Services (“VDS”) brought this
action against Actian Corp., seeking a declaratory judgment that VDS did not infringe
Actian’s copyrights of the Data Integrator Software (“the Software”) licensed by VDS.1 See
ECF No. 38 (First Amended Complaint). Actian counterclaimed, alleging breach of
contract 	and 	copyright 	infringement. 	See 	ECF 	No. 	235 	(First 	Supplemental
Counterclaims). Both Parties now move for summary judgment on these claims. See ECF
Nos. 364, 356. For the reasons that follow, the Court DENIES these motions.
1 Although Covetrus is a plaintiff in the action, this Order refers to the relevant party as VDS unless Covetrus
is specifically identified.
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I. 	Background
A. Undisputed Facts
VDS 	is a Kentucky-based company and a subsidiary 	of Covetrus, 	a Maine
corporation formed in 2019. ECF No. 38 at 2.2 In 2006, VDS licensed a non-commercial
version of the “Data Integrator” Software from Actian to map and migrate historical
veterinary data into Practice Information Management Services (“PIMS”) for third-party
veterinary clinics. ECF No. 38 at 1, 5. VDS originally purchased a perpetual license for
Version 8 in 2006, eventually upgrading to Version 9.2.7.10 in 2011—the version at issue
in this case (“Version 9”). Id. at 5. Actian’s Version 9 End User License Agreement
(“EULA”) governs this software. See ECF No. 356 at 2; ECF No. 235-1 (“EULA”). Covetrus
was not a signatory to the EULA.
In 2017, Actian issued an audit request to VDS that indicated VDS had installed
five copies of Version 9 on five different production engines, i.e., computers. ECF No. 365
at 9. Actian made no allegations of breach of contract or copyright infringement at that
time. Id.
In December 2019, VDS purchased another year of service and maintenance
support for Version 9 of the Software, as well as post-obsolescence support, for a total of
$5,199, to go into effect in 2020. ECF No. 235-2 at 1 (“2020 Sales Order”). Attached to
the 2020 Sales Order was a set of terms and conditions, which stated, in reference to
Version 9, “Acceptance of this order is subject to the terms of the applicable signed
agreement with Actian Corporation . . . , or (if none), the license agreement associated
with the above referenced product.” Id. at 2. The terms and conditions also provided a
2 All pincites are based on the ECF-generated page numbers for the filing, which in some instances differ
from the page numbers inserted by the Parties.
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URL along with text that read “Actian corporation support policy.” Id.; see ECF No. 235-3
(Support Policy). The Support Policy states all perpetual licenses—of the sort VDS had
purchased—require active and ongoing support contracts. See ECF No. 235-3 at 3.
Following the 2020 Sales Order, a 2021 Audit revealed VDS had installed Version 9
on twenty-one computers with twelve total users, and that VDS had purchased three
licenses for the Software. ECF No. 364 at 11. Following that audit, Actian alleged VDS
should have purchased commercial, rather than non-commercial, licenses and demanded
VDS pay $13.5 million based on the number of commercial licenses it calculated VDS
should have purchased based on the 2021 Audit. Id. VDS rejected the demand and filed
this action for declaratory judgment with the Court on April 6, 2021. Id.; ECF No. 1.
B. Procedural History
The procedural history involves multiple copyright registrations and discovery
disputes and is summarized here only as relevant to the pending motions.
In 2021, VDS sought declaratory judgment that they had not infringed Actian’s
copyright. ECF No. 38 at 8–10. VDS also advanced several 	alternative arguments
including: (1) any infringement, if found, was not willful, (2) the copyright claims are
time-barred, (3) Actian’s copyrights are unenforceable due to misuse, and (4) Actian is
estopped from enforcement based on its prior knowledge of VDS’s use. Id. at 11. Actian
filed its first counterclaims in May 2021, alleging breach of contract and copyright
infringement. ECF No. 14 at 10–13.
In 2020, Actian applied to register two copyrights for Version 9 of the Software,
which the United States Copyright Office granted. ECF No. 114 at 2. On April 11, 2022,
Plaintiffs moved to refer questions regarding the validity of those copyrights to the
Register 	of Copyrights, 	alleging 	Actian’s copyright 	registrations 	were 	invalid 	and
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predicated on inaccurate information. Id. at 3. This Court denied the motion. ECF No.
184.
In May 2023, Actian applied for, and the Copyright Office granted, additional
certificates of registration, including registration of the Version 9 engine—the version of
the Software VDS had licensed. ECF No. 231 at 7. Actian then sought leave to supplement
its counterclaims to assert a claim of copyright infringement of the latest registrations,
including Version 9. Id. This Court granted the motion to amend, id. at 15, and Actian
filed its supplemental counterclaims to incorporate infringement 	of the Version 	9
copyright, ECF No. 235.
For the next several years, the Parties engaged in protracted discovery disputes.
The Parties subsequently filed cross motions for summary judgment on the copyright
infringement and breach of contract claims, which can be categorized into several primary
disputes: (1) whether VDS’s customary usage of the Software to provide data migration
services to third parties is considered a breach of the EULA; (2) when and to what extent
Actian was aware of the alleged breach; (3) whether VDS over-deployed the Software by
installing it on additional machines or providing access to too many users; (4) whether
Covetrus is a corporate alter ego of VDS; and (5) whether Version 9’s copyright
registration is valid as an original work. See generally ECF Nos. 356, 364. VDS also moved
to exclude the report and testimony of Actian’s expert, Mr. Robert Held, who opined on
the extent of Actian’s damages, ECF No. 354, and to exclude the report and testimony of
Actian’s technical expert, Mr. Joshua HelfinSiegel, who provided opinions on the alleged
copyright infringement, ECF No. 355. In turn, Actian moved to exclude the testimony of
VDS’s technical experts, Mr. Peter Martin and Mr. William Nash, who testified to the
Software’s source code. ECF No. 371. These motions are now ripe for decision.
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II. 	Legal Questions
The Parties raise several legal issues that can be resolved on the existing record as
a matter of law. Before turning to the Parties’ cross-motions for summary judgment, the
Court addresses these threshold questions governing choice of law and the availability of
certain defenses.
A. Choice of Law
A federal court sitting in diversity applies the forum state’s choice-of-law rules to
determine which substantive law applies. See Quality Cleaning Prods. R.C., Inc. v. SCA
Tissue N. Am., LLC, 794 F.3d 200, 204 (1st Cir. 2015). “The state of Maine follows the
Restatement (Second) of Conflicts of Laws and the ‘most 	significant contacts and
relationships’ approach in determining choice of law.” Walker v. Unum Life Ins. Co. of
Am., 530 F. Supp. 2d 351, 353 (D. Me. 2008) (quoting Flaherty v. Allstate Ins. Co., 822
A.2d 1159, 1165 (Me. 2003)). However, the Court conducts a choice-of-law analysis
regarding contract-based claims “only where the parties have failed to state which law
controls.” Id. Here, the EULA contains a choice-of-law provision which states: “This
Agreement is governed by the laws of the State of Texas (U.S.A.) exclusive of its choice of
law provisions.” ECF No. 91-1 at § 15.3. Both Parties contend that Texas law therefore
governs the Version 9 EULA. ECF No. 364 at 27; ECF No. 356 at 6. Generally, Maine will
enforce a choice-of-law provision “unless either (a) the chosen state has no substantial
relationship to the parties or the transaction . . . , or (b) application of the law of the
chosen state would be contrary to a fundamental policy of a state with a materially greater
interest . . . .” New Eng. Surfaces v. E.I. Du Pont De Nemours & Co., 460 F. Supp. 2d 153,
159 (D. Me. 2006), aff’d, 546 F.3d 1 (1st Cir. 2008), decision clarified on denial of reh’g,
546 F.3d 11 (1st Cir. 2008) (quoting Restatement (Second) of Conflicts § 187(2) (1971)).
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Here, Texas has a “substantial relationship to the parties” because Actian’s principal place
of business is in Texas. XL Sports World, LLC v. Dynamic Sports Constr., Inc., 784 F.
Supp. 3d 289, 298 (D. Me. 2025); see ECF No. 91 at 1. Therefore, Texas law controls.
B. Applicable Legal Standard Regarding Contract Claims
Under Texas law, contract construction is a matter of law. See Plains Exploration
& Prod. Co. v. Torch Energy Advisors, Inc., 473 S.W.3d 296, 305 (Tex. 2015) (citing
Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 7 (Tex. 2014)). A court’s
primary concern is to ascertain the Parties’ intent by examining the entire writing to
harmonize all provisions 	so 	none are rendered meaningless. 	See Italian Cowboy
Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011) (citing J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003)). “[T]erms are given ‘their
plain and ordinary meaning unless the instrument indicates the parties intended a
different meaning.’” Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789, 794–95 (Tex.
2012) (quoting Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164,
168 (Tex. 2009)).
When a contract’s language is unambiguous, the Court must construe it as a matter
of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Whether the contract is
ambiguous is itself a question of law for the Court to decide. See Anglo-Dutch Petroleum
Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 449 (Tex. 2011). “[A] trial court errs
when it submits an unambiguous contract to the jury rather than construing it as a matter
of law.” Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 480 (Tex.
2019). Thus, the Court must now determine whether any of the contract provisions at
issue in this case are resolvable as a matter of law.
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C. Contract Interpretation Issues Resolvable as a Matter of Law
Based on the Parties’ briefing and the undisputed portions of the record, the Court
can resolve two contract interpretation issues at the summary judgment stage. These
issues concern whether ancillary documents were incorporated into the agreement and
the effect of the EULA’s termination and survival provisions.
1. 	Incorporation of Support Policy
Actian contends the 2020 Sales Order—which provided a URL to the online
Support Policy—incorporated that policy into the contract. VDS argues the Version 9
EULA alone remains the entire agreement.
The Terms & Conditions of the 2020 Support Policy state, “Acceptance of this
order 	is 	subject 	to 	the 	terms 	of 	the 	applicable 	signed 	agreement 	with 	Actian
Corporation . . . or (if none), the license agreement associated with the above referenced
product.” ECF No. 91-2 at 3. It then includes a clause reading “Actian Corporation
Support Policy” and provides a link. Id. The online Support Policy requires the purchase
of support services for all perpetual licenses. 	VDS stopped purchasing support for
Version 9 in 2021. Actian CEO Marc Potter asserts the Policy requires a post-obsolescence
fee for providing support for outdated versions, which he claims applies here. See ECF
No. 350-10 at 31:13–32:18; ECF No. 91-4 at 9 (“Obsolescence Support provides . . . There
is an additional charge (2x) for this level of support.”).3
Texas law favors VDS’s argument. “Merely referencing another document . . . does
not incorporate the entire document when the language used in the incorporation clause
3 According to Mr. Potter, the post-obsolescence fee amount is calculated by ascertaining the commercial
license amount VDS ostensibly should have purchased (as compared to the non-commercial license they
did purchase), multiplied by three. ECF No. 350-10 at 31:15–20. The Support Policy states the cost is two
times the fee. ECF No. 91-4 at 9. Whether the cost is two or three times is immaterial to the analysis here.
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does not indicate the parties’ intent to do so.” Bancroft Life & Cas. ICC, Ltd. v. FFD Res.
II, LLC, 884 F. Supp. 2d 535, 552 (S.D. Tex. 2012) (quoting Valero Mktg. & Supply Co. v.
Baldwin Contracting Co., No. H–09–2957, 2010 WL 1068105, at *4 (S.D. Tex. Mar. 19,
2010)). The language in the signed document must show the parties intended for the
external document to become part of the agreement. Bob Montgomery Chevrolet, Inc. v.
Dent Zone Cos., 409 S.W.3d 181, 189 (Tex. App. 2013). In Dent Zone, the appellate court
rejected the incorporation of hyperlinked terms, noting the language indicated the
document was informative rather than binding. Id. at 190.
Here, the Sales Order language does not indicate an intent to be bound by the
Support Policy. Furthermore, Section 15.2 of the EULA states the EULA is the sole
contract irrespective of any purchase order,4 as does the Sales Order itself, which states it
is governed by the “license agreement associated with the above referenced product,” i.e.,
the Version 9 EULA. ECF No. 91-2 at 3. Thus, VDS’s decision not to purchase a support
policy after 2021 is not an actionable breach of contract.5
2. 	Effect of the EULA’s Termination and Survival Provisions
VDS alleges Section 14 of the Version 9 EULA serves as the sole remedy for breach
and that the contract terminated upon their first alleged breach in 2011, placing any
current action beyond the limitations period. ECF No. 364 at 31–32. Actian argues Section
14 includes a survivability clause, which allows other sections of the EULA to survive any
earlier breach. ECF No. 375 at 28–29.
4 Section 15.2 of the EULA states, “This Agreement may be amended only in writing executed by both
parties. Any purchase order placed by you is accepted only upon your assent to the terms and conditions of
this Agreement, and not those contained in Your purchase order.” ECF No. 91-1 at § 15.2.
5 VDS also argues the Support Policy change did not apply retroactively. ECF No. 364 at 30. Because the
Court finds the Policy was not incorporated into the contractual agreement, it does not address this
argument.
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Section 14 states, “This Agreement will automatically terminate if you breach any
of the terms and conditions of this Agreement.” ECF No. 91-1 at § 14. However, it goes on
to say, “Sections 3, 4, 6, 7, 9, 11, 12, 13, 14 and 15 of this Agreement will survive any
termination hereof.” Id. Under Texas law, contractual sections that are specifically
enumerated in a survival clause persist after termination, while sections that contain no
language providing for survival terminate with the agreement. See York Grp., Inc. v.
Horizon Casket Grp., Inc., No. CIV A H-05-2181, 2007 WL 2120424, at *4 (S.D. Tex. July
11, 2007) (applying Texas state law). Section 4 (copyright restrictions) and Section 6
(third-party use) are specifically enumerated by the survivability clause. Therefore, the
Court finds VDS’s contention that the entire contract terminated in 2011, upon the first
alleged breach, is incorrect: any enumerated surviving sections, such as Section 4 and
Section 6, continue to apply. Thus, Actian can seek damages under Sections 4, 6, and 14.
III. 	Motions for Summary Judgment
Summary judgment is proper only if the record reflects “no genuine issues of
material fact” and the movant is entitled to judgment as a matter of law. Hadfield v.
McDonough, 407 F.3d 11, 15 (1st Cir. 2005) (citing Fed. R. Civ. P. 56(c)). Where the
Parties have filed cross motions for summary judgment, the Court evaluates each motion
independently and determines “whether either of the parties deserves judgment as a
matter of law on facts that are not disputed.” Matusevich v. Middlesex Mut. Assurance
Co., 782 F.3d 56, 59 (1st Cir. 2015) (quoting Barnes v. Fleet Nat’l Bank, N.A., 370 F.3d
164, 170 (1st Cir. 2004)). Courts should grant summary judgment “if . . . there can be but
one reasonable conclusion” come trial; but if “reasonable minds could differ,” the Court
should not enter judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–51 (1986).
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A. The Parties’ Arguments
Actian moves for summary judgment, asserting VDS infringed its copyrights and
breached the EULA by exceeding its scope. ECF No. 356 at 9–10. VDS cross-moves for
summary judgment, arguing both of Actian’s claims fail as a matter of law, the Court
should enter declaratory judgment in favor of VDS, and the Court should dismiss
Covetrus as a counter-defendant. ECF No. 364 at 7. The Parties’ respective arguments
both for and in opposition to summary judgment largely overlap.
1. 	Breach of Contract
Per the EULA’s choice of law provision, Texas law governs the breach of contract
claims, which requires a showing of: (1) a valid contract; (2) performance by the claimant;
(3) breach by the defendant; and (4) resulting damages. Tiras v. Bailey Props., L.L.C.,
659 F. App’x 753, 756 (5th Cir. 2016). The Parties do not dispute that the EULA is a valid
contract and that Actian fully performed by providing the relevant Software. See ECF No.
356 at 7–8; ECF No. 38 at 5. Rather, Actian alleges three primary breaches.
First, Actian alleges VDS violated Section 6 of the EULA, which states, “You may
not use, access, or allow access to the Software in any manner to provide service bureau,
ASP, time-sharing, or other computer services to third parties without prior approval of
Pervasive” by providing computer services to third parties. ECF No. 356 at 12. Actian
contends VDS acted as an unauthorized “middleman,” using the Software to ingest and
migrate date for third-party veterinary offices. Id. at 12–13.
Second, Actian asserts VDS over-deployed the Software in violation of Section 1 of
the EULA by installing the Software on twenty-one host computers, rather than the three
which VDS had licensed. Id. at 15; see ECF No. 235-1 at § 1.A (Section 1 of the EULA reads,
“You may install the Software only in a single location on a hard disk or other storage
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device. You may install the Software on a network server used only to install or run the
Software over an internal network; however, you must acquire and dedicate a license for
each individual who will use the Software.”). Similarly, Actian claims the 2021 Audit
indicated VDS exceeded the number of licensed users by nine users, and VDS installed
the Software on twelve AzureVM servers which were outside VDS’s internal network. ECF
No. 356 at 16. Actian further claims the EULA requires a separate license for installation
on each “core”6 of a Central Processing Unit (“CPU”), rather than a license for each
overarching computer system, and that VDS had forty-two unlicensed cores running all
or part of the Software. Id.
Third, Actian contends damages should reflect the cost of the commercial licenses
VDS allegedly should have purchased, rather than the non-commercial licenses they did
purchase. Id. at 17–19.
Turning to the alleged breach itself, VDS contends it did not breach Section 6 of
the EULA—which prohibits use by third parties—because VDS personnel alone controlled
the Software and customers never accessed it. ECF No. 372 at 24. VDS contends any
contrary interpretation is “unreasonable and inequitable.” Id.
With respect to Section 1 of the EULA, which concerns installation on different
computer systems, VDS notes Actian inconsistently claims VDS purchased only one
license, despite the 2017 Audit showing it owned three licenses. Id. at 26. VDS further
6 Generally, a “core” is an individual processing unit within a larger Central Processing Unit (“CPU”).
Modern computers are composed of multiple cores, usually eight or twelve. Version 9 of the EULA, which
governs here, makes no reference to cores, but does state, “On multiple-CPU machines, the deployment or
runtime Software may not be used concurrently on more CPUs than the number of CPUs specified on the
media package or sales invoice. In the event you use any number of physical CPUs, the authorized number
of CPUs under this Agreement will be determined based on the number of logical or virtual CPUs.” ECF No.
235-1 at § 1.B. Newer versions of the EULA, which do not apply here, make reference to both CPUs and
cores. ECF No. 358 at ¶ 34.
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argues the EULA allows for installation on secondary computers, backup systems, and for
programmatic invocation across the organization. Id. at 26–27; see ECF No. 235-1 at § 2
(“You may make a reasonable number of copies of the Software only for archival backup
and security reasons . . . .”); id. at § 1.B (“[Y]ou may programmatically invoke the
deployment 	or 	runtime 	Software 	from one 	or more 	other 	machines within 	your
organization.”). VDS disputes Actian’s interpretation of the EULA as requiring licenses
per core rather than per CPU. ECF No. 372 at 27. Finally, VDS argues Actian has failed to
establish recoverable contract damages. See id. at 27–29.
VDS also argues any breach of contract claim occurred at the time of breach, rather
than at the time of discovery. Id. at 14. VDS further admits it installed the Software on
multiple machines from the outset—as early as 2006, when it first licensed Version 8, or
2011, when it licensed Version 9. Id. According to VDS, if its customary use of the Version
9 Software converting third-party data to customers constituted a breach of Section 6,
that first breach first occurred in 2006 or 2011. Id. at 15. VDS argues, therefore, if a breach
occurred, the EULA terminated upon that initial breach (either in 2006 or 2011). Id. at
13. VDS contends if the EULA terminated, there was “no valid, active contract . . . , [and]
Actian is not entitled to additional contract damages, but must instead rely on copyright
damages and remedies.” Id.
VDS further asserts Actian is estopped from asserting its breach of contract claim
due to acquiescence, course of dealing, and waiver. Id. at 16. VDS points to trainings
Pervasive 	(now Actian) provided to VDS employees in 2006 and support services
provided in 2009, which allegedly acknowledged VDS’s third-party data conversions. Id.
at 17–18. VDS notes the 2017 Audit revealed installation on five production engines—
more than the three licenses purchased—yet Actian took no action at the time. Id. at 18.
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2. 	Copyright Infringement
VDS argues copyright law preempts Actian’s breach of contract claim. ECF No. 372
at 20. According to VDS, the over-deployment allegations fall within the subject matter
of 	copyright 	and 	lack 	an 	“extra 	element” 	distinguishing 	them 	from 	copyright
infringement. See ML Genius Holdings LLC v. Google LLC, No. 20-3113, 2022 WL
710744, at *3 (2d Cir. Mar. 10, 2022) (summary order). VDS also reiterates its argument
that Actian copyright registrations are invalid because Version 9 does not contain
sufficient original, protectable material as compared to earlier versions. ECF No. 364 at
31–32. In response, Actian reasserts the validity of its copyright registrations, citing the
Court’s prior rulings on the presumption of validity. ECF No. 375 at 32–38.
For the same reasons it advances regarding the breach of contract claim, VDS also
argues the copyright claim falls outside of the Copyright Act’s three-year statute of
limitations. ECF No. 364 at 15 (citing 17 U.S.C. § 507(b)). Actian disputes VDS’s statute
of limitations arguments and advances multiple tolling and accrual theories. ECF No. 375
at 7–8. First, Actian asserts that each impermissible 	data conversion constituted a
discrete breach that reset the limitations clock. Id. at 8. Second, Actian argues that the
cause of action accrues only once a breach is complete, not when it first occurs. Id. Finally,
Actian invokes the doctrines of equitable tolling and estoppel, arguing Plaintiffs cannot
benefit from a limitations defense after affirmatively hiding their misconduct. Id.
3. 	Covetrus’s Liability
Covetrus seeks dismissal as a counter-defendant on the ground that it is not a
corporate alter ego of VDS nor was it a party or signatory to the original EULA and sales
agreement. ECF No. 364 at 21–25. It also seeks summary judgment on claims of
secondary or indirect copyright infringement, arguing there is no evidence it induced,
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encouraged, or approved any infringement by VDS. ECF No. 372 at 34–36. Actian argues
Covetrus is directly liable due to its control over the Software, its deployment of the
Software on Covetrus.net servers, and its control over VDS’s company operations. ECF
No. 375 at 20–25.
4. 	Outstanding Issues
Separately, VDS requests ruling on two outstanding contract interpretation issues:
(1) Maintenance Obligations—whether 	the Version 9 EULA permits the use of the
Software without mandatory purchase of ongoing support services, ECF No. 375 at 55;
and (2) Damages Metrics—whether any damages available beyond Section 14 must be
calculated based on “CPUs” rather than “cores,” id. at 19–20. In its opposition, Actian
provides the following rejoinders as to: (1) Maintenance Obligations—the Support Policy
requires purchase of ongoing maintenance services, ECF No. 375 at 26, 29; and (2)
Damages Metrics—the damages should be calculated on the basis of “cores,” rather than
“CPUs,” id. at 31–32.
B. Genuine Issues of Material Fact Preclude Summary Judgment
The Court finds numerous disputes of material fact, coupled with the inherently
ambiguous nature of the governing contract, preclude summary 	judgment on the
contested claims and counterclaims.
1. 	Breach of Contract: Ambiguity in the EULA
Before the Court can determine whether a breach occurred, it must first define the
obligations set forth in the contract. The Court concludes that Section 6 of the EULA is
ambiguous as a matter of law, necessitating a factual inquiry by a jury to determine the
Parties’ intent. Section 6, entitled “Leasing/Rental Prohibited,” states: “You may not
directly or indirectly sublicense, lease or rent the Software for third party use without
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prior written approval of [Actian].7 You may not use, access, or allow access to the
Software in any manner to provide service bureau, ASP, time-sharing, or other computer
services to third parties without prior written approval of [Actian].” ECF No. 91-1 at § 6.
The Parties fundamentally dispute whether Section 6 prohibits VDS from providing data
integration services to third parties. VDS argues “use” requires direct access by a third
party. Actian argues “use” includes providing services via the software even without third-
party access. If the Court were to interpret “use” to mean only “allowed direct access,” as
VDS contends, it would render the subsequent 	words “access” and “allow access”
redundant. The Court is not inclined to render contract provisions meaningless. See
Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998) (“We must
also attempt to give effect to all contract provisions so that none will be rendered
meaningless.”). The Court thus rejects VDS’s argument that “use” in this context means
“allowing access” to a third party.
Additional ambiguities remain regarding other terms. The EULA fails to define the
term “other computer services.” VDS argues that because the other listed services involve
direct access, “other computer services” must also include direct access to the user
interface. ECF No. 397 at 18–19. Actian maintains that the data integration services VDS
provided is a form of “computer service[].”8 ECF No. 400 at 8.
Because 	both 	interpretations 	of 	Section 	6 	are 	reasonable, 	the 	contract 	is
ambiguous as a matter of law. As such, the intent of the Parties must be submitted to a
7 Pervasive, which is named in the EULA, was the predecessor-in-interest to Actian. ECF No. 235 at 7. Actian
merged with Pervasive in 2013, after VDS purchased the Software. Id.
8 The Parties do not present an argument to this effect, but the phrase “in any manner” suggests a potentially
broad application of Section 6, which would weigh in favor of Actian’s argument that “computer services”
includes indirect data migration.
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factfinder to determine the scope of Section 6. See IMS Health, Inc. v. Vality Tech., Inc.,
No. 99-1500, 2000 WL 804436, at *5 (E.D. Pa. June 22, 2000).
2. 	Factual Disputes Regarding Performance and Technical Standards
Even if the EULA’s terms were clear, the record reflects competing evidentiary
accounts regarding VDS’s actual conduct that cannot be resolved at this stage. First, the
Parties present a material dispute regarding the technical industry standards in 2008, the
year in which VDS first entered into a contract with Actian. If “CPUs” and “cores” were
treated as synonymous at the time, VDS’s installation on 112 cores would constitute a
breach of its three-CPU license. But, if the terms are distinct, VDS may have been in
compliance. The Parties further dispute the nature and frequency of the alleged breaches
in the years preceding this lawsuit, including whether VDS engaged in over-deployment,
allowed third parties access in violation of the commercial use provision, or failed to
purchase required support services. This includes a fundamental disagreement as to
whether third-party veterinary offices ever “access[ed]” or “use[d]” the Software within
the meaning of the EULA, or whether those offices were merely provided with the
Software’s output. Furthermore, because the EULA allows installation on an “internal
network” only, a factfinder must determine whether AzureVM and Covetrus.net servers
are “internal” network extensions or prohibited “external” third-party hosts. Relatedly, it
is necessary for a trier of fact to evaluate the EULA’s terms to determine whether they
required the purchase of ongoing support services, another point of contention regarding
VDS’s compliance.
3. 	Statute of Limitations and Equitable Defenses
Outstanding factual issues similarly preclude summary judgment on the statute of
limitations challenges. Under Maine law, which applies through the traditional approach
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of the Restatement (Second) of Conflict of Laws, “the statute of limitations of the forum
controls, even if the substantive law of another state applies.” Henderson v. Laser Spine
Inst., 815 F. Supp. 2d 353, 380 (D. Me. 2011) (quotation modified). However, the
application of the “discovery rule” and related equitable defenses—such as estoppel,
waiver, and fraudulent concealment—turns on “archetypal factual issues fit for jury
resolution.” Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30, 38 (1st Cir.
2001). Specifically, the Parties disagree on when Actian had sufficient information to
warrant an investigation 	of alleged over-deployment. VDS points to 2006 training
sessions and 2009 support logs as evidence of notice, while Actian alleges it only
discovered the “true infringement” in 2021 and argues VDS affirmatively concealed its
deployment scope during the 2017 Audit. A factfinder must decide if and when Actian had
enough information to warrant an investigation into VDS’s use of the Software, and if VDS
affirmatively concealed any deployment to determine whether estoppel applies.
4. 	Derivative Claims; Copyright Infringement and Alter Ego
The Court further finds that the copyright and alter ego claims are unfit for
summary adjudication. Regarding copyright infringement, the Parties dispute whether
the source code of Version 9 contains original, protectable authorship under17 U.S.C.
§ 103, or consists merely of trivial “bug fixes.” If the changes are found to be trivial, the
copyright registration could be invalid, barring an infringement claim for that specific
version. Additionally, the liability of Covetrus depends on whether it is the “alter ego” of
VDS. Because veil-piercing is a fact-intensive inquiry involving corporate formalities,
capitalization, and the potential siphoning of revenue, it is a determination typically
reserved for a jury. See Crane v. Green & Freedman Baking Co., 134 F.3d 17, 22 (1st Cir.
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1998) (“[Corporate] veil-piercing is the sort of determination usually made by a jury
because it is so fact specific.” (quotation modified)).
Because these genuine issues of material fact remain, the Parties’ motions for
summary judgment are both DENIED.
IV. 	Conclusion
For the reasons stated herein, the Parties’ motions for summary judgment are
DENIED.9 ECF Nos. 364, 356.
The Court also DENIES the Parties’ motions to exclude expert testimony. ECF
Nos. 354, 355, 371. The reports are reliable and useful to the Court’s review and will assist
the trier of fact. See Fed. R. Evid. 702 advisory comm. note—1972 proposed rules
(“Whether the situation is a proper one for the use of expert testimony is to be determined
on the basis of assisting the trier.”).
S O ORDERED.
Dated this 6th day of February, 2026.
/s/ Stacey D. Neumann
U NITED S TATES D ISTRICT J UDGE
9 Because the motions for summary judgment are denied, the Parties’ motions to strike statements of fact
are dismissed as moot. ECF Nos. 386, 396.
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