GOLDBERG, Circuit Judge:

This is a case of industrial espionage in which an airplane is the cloak and a camera the dagger. The defendants-appellants, Rolfe and Gary Christopher, are photographers in Beaumont, Texas. The Christophers were hired by an unknown third party to take aerial photographs of new construction at the Beaumont plant of E. I. duPont deNemours & Company, Inc. Sixteen photographs of the DuPont facility were taken from the air on March 19, 1969, and these photographs were later developed and delivered to the third party.

DuPont employees apparently noticed the airplane on March 19 and immediately began an investigation to determine why the craft was circling over the plant. By that afternoon the investigation had disclosed that the craft was involved in a photographic expedition and that the Christophers were the photographers. DuPont contacted the Christo-phers that same afternoon and asked them to reveal the name of the person or corporation requesting the photographs. The Christophers refused to disclose this information, giving as their reason the client’s desire to remain anonymous.

Having reached a dead end in the investigation, DuPont subsequently filed suit against the Christophers, alleging that the Christophers had wrongfully obtained photographs revealing DuPont’s trade secrets which they then sold to the undisclosed third party. DuPont contended that it had developed a highly secret but unpatented process for producing methanol, a process which gave DuPont a competitive advantage over other producers. This process, DuPont alleged, was a trade secret developed after much expensive and time-consuming research, and a secret which the company had taken special precautions to safeguard. The area photographed by the Christophers was the plant designed to produce methanol by this secret process, and because the plant was still under construction parts of the process were exposed to view from directly above the construction area. Photographs of that area, DuPont alleged, would enable a skilled person to deduce the secret process for making *1014methanol. DuPont thus contended that the Christophers had wrongfully appropriated DuPont trade secrets by taking the photographs and delivering them to the undisclosed third party. In its suit DuPont asked for damages to cover the loss it had already sustained as a result of the wrongful disclosure of the trade secret and sought temporary and permanent injunctions prohibiting any further circulation of the photographs already taken and prohibiting any additional photographing of the methanol plant.

The Christophers answered with motions to dismiss for lack of jurisdiction and failure to state a claim upon which relief could be granted. Depositions were taken during which the Christo-phers again refused to disclose the name of the person to whom they had delivered the photographs. DuPont then filed a motion to compel an answer to this question and all related questions.

On June 5, 1969, the trial court held a hearing on all pending motions and an additional motion by the Christophers for summary judgment. The court denied the Christophers’ motions to dismiss for want of jurisdiction and failure to state a claim and also denied their motion for summary judgment. The court granted DuPont’s motion to compel the Christophers to divulge the name of their client. Having made these rulings, the court then granted the Christo-phers’ motion for an interlocutory appeal under 28 U.S.C.A. § 1292(b) to allow the Christophers to obtain immediate appellate review of the court’s finding that DuPont had stated a claim upon which relief could be granted. Agreeing with the trial court’s determination that DuPont had stated a valid claim, we affirm the decision of that court.

This is a case of first impression, for the Texas courts have not faced this precise factual issue, and sitting as a diversity court we must sensitize our Erie antennae to divine what the Texas courts would do if such a situation were presented to them. The only question involved in this interlocutory appeal is whether DuPont has asserted a claim upon which relief can be granted. The Christophers argued both at trial and before this court that they committed no “actionable wrong” in photographing the DuPont facility and passing these photographs on to their client because they conducted all of their activities in public airspace, violated no government aviation standard, did not breach any confidential relation, and did not engage in any fraudulent or illegal conduct. In short, the Christophers argue that for an appropriation of trade secrets to be wrongful there must be a trespass, other illegal conduct, or breach of a confidential relationship. We disagree.

It is true, as the Christophers assert, that the previous trade secret cases have contained one or more of these elements. However, we do not think that the Texas courts would limit the trade secret protection exclusively to these elements. On the contrary, in Hyde Corporation v. Huffines, 1958, 158 Tex. 566, 314 S.W.2d 763, the Texas Supreme Court specifically adopted the rule found in the Restatement of Torts which provides:

“One who discloses or uses another’s trade secret, without a privilege to do so, is liable to the other if

(a) he discovered the secret by improper means, or

(b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him * *

Restatement of Torts § 757 (1939).

Thus, although the previous eases have dealt with a breach of a confidential relationship, a trespass, or other illegal conduct, the rule is much broader than the cases heretofore encountered. Not limiting itself to specific wrongs, Texas adopted subsection (a) of the Restatement which recognizes a cause of action for the discovery of a trade secret by any “improper” means.

The defendants, however, read Furr’s Inc. v. United Specialty Advertising Co., Tex.Civ.App. 1960, 338 S.W.2d 762, writ ref’d n.r.e., as limiting the Texas rule to breach of a confidential *1015relationship. The court in Furr’s did make the statement that

“The use of someone else’s idea is not automatically a violation of the law. It must be something that meets the requirements of a ‘trade secret’ and has been obtained through a breach of confidence in order to entitle the injured party to damages and/or injunction. 338 S.W.2d at 766 (emphasis added).

We think, however, that the exclusive rule which defendants have extracted from this statement is unwarranted. In the first place, in Furr’s the court specifically found that there was no trade secret involved because the entire advertising scheme claimed to be the trade secret had been completely divulged to the public. Secondly, the court found that the plaintiff in the course of selling the scheme to the defendant had voluntarily divulged the entire scheme. Thus the court was dealing only with a possible breach of confidence concerning a properly discovered secret; there was never a question of any impropriety in the discovery or any other improper conduct on the part of the defendant. The court merely held that under those circumstances the defendant had not acted improperly if no breach of confidence occurred. We do not read Furr’s as limiting the trade secret protection to a breach of confidential relationship when the facts of the case do raise the issue of some other wrongful conduct on the part of one discovering the trade secrets of another. If breach of confidence were meant to encompass the entire panoply of commercial improprieties, subsection (a) of the Restatement would be either surplusage or persiflage, an interpretation abhorrent to the traditional precision of the Restatement. We therefore find meaning in subsection (a) and think that the Texas Supreme Court clearly indicated by its adoption that there is a cause of action for the discovery of a trade secret by any “improper means.” Hyde Corporation v. Huffines, supra.

The question remaining, therefore, is whether aerial photography of plant construction is an improper means of obtaining another’s trade secret. We conclude that it is and that the Texas courts would so hold. The Supreme Court of that state has declared that “the undoubted tendency of the law has been to recognize and enforce higher standards of commercial morality in the business world.” Hyde Corporation v. Huffines, supra 314 S.W.2d at 773. That court has quoted with approval articles indicating that the proper means of gaining possession of a competitor’s secret process is “through inspection and analysis” of the product in order to create a duplicate. K & G Tool & Service Co. v. G & G Fishing Tool Service, 1958, 158 Tex. 594, 314 S.W.2d 782, 783, 788. Later another Texas court explained :

“The means by which the discovery is made may be obvious, and the experimentation leading from known factors to presently unknown results may be simple and lying in the public domain. But these facts do not destroy the value of the discovery and will not advantage a competitor who by unfair means obtains the knowledge without paying the price expended by the discoverer.” Brown v. Fowler, Tex.Civ.App.1958, 316 S.W.2d 111, 114, writ ref’d n.r.e. (emphasis added).

We think, therefore, that the Texas rule is clear. One may use his competitor’s secret process if he discovers the process by reverse engineering applied to the finished product; one may use a competitor’s process if he discovers it by his own independent research ; but one may not avoid these labors by taking the process from the discoverer without his permission at a time when he is taking reasonable precautions to maintain its secrecy. To obtain knowledge of a process without spending the time and money to discover it independently is improper unless the holder voluntarily discloses it or fails to take *1016reasonable precautions to ensure its secrecy.

In the instant case the Christophers deliberately flew over the DuPont plant to get pictures of a process which DuPont had attempted to keep secret. The Christophers delivered their pictures to a third party who was certainly aware of the means by which they had been acquired and who may be planning to use the information contained therein to manufacture methanol by the DuPont process. The third party has a right to use this process only if he obtains this knowledge through his own research efforts, but thus far all information indicates that the third party has gained this knowledge solely by taking it from DuPont at a time when DuPont was making reasonable efforts to preserve its secrecy. In such a situation DuPont has a valid cause of action to prohibit the Christophers from improperly discovering its trade secret and to prohibit the undisclosed third party from using the improperly obtained information.

We note that this view is in perfect accord with the position taken by the authors of the Restatement. In commenting on improper means of discovery the savants of the Restatement said:

“f. Improper means of discovery. The discovery of another’s trade secret by improper means subjects the actor to liability independently of the harm to the interest in the secret. Thus, if one uses physical force to take a secret formula from another’s pocket, or breaks into another’s office to steal the formula, his conduct is wrongful and subjects him to liability apart from the rule stated in this Section. Such conduct is also an improper means of procuring the secret under this rule. But means may be improper under this rule even though they do not cause any other harm than that to the interest in the trade secret. Examples of such means are fraudulent misrepresentations to induce disclosure, tapping of telephone wires, eavesdropping or other espionage. A complete catalogue of improper means is not possible. In general they are means which fall below the generally accepted standards of commercial iporality and reasonable conduct.” Restatement of Torts § 757, comment f at 10 (1939).

In taking this position we realize that industrial espionage of the sort here perpetrated has become a popular sport in some segments of our industrial community. However, our devotion to free wheeling industrial competition must not force us into accepting the law of the jungle as the standard of morality expected in our commercial relations. Our tolerance of the espionage game must cease when the protections required to prevent another’s spying cost so much that the spirit of inventiveness is dampened. Commercial privacy must be protected from espionage which could not have been reasonably anticipated or prevented. We do not mean to imply, however, that everything not in plain view is within the protected vale, nor that all information obtained through every extra optical extension is forbidden. Indeed, for our industrial competition to remain healthy there must be breathing room for observing a competing industrialist. A competitor can and must shop his competition for pricing and examine his products for quality, components, and methods of manufacture. \ Perhaps ordinary fences and roofs must be built to shut out incursive eyes, but we need not require the discoverer of a trade secret to guard against the unanticipated, the undetectable, or the unpreventable methods of espionage now available.

In the instant ease DuPont was in the midst of constructing a plant. Although after construction the finished plant would have protected much of the process from view, during the period of construction the trade secret was exposed to view from the air. To require DuPont to put a roof over the unfinished plant to guard its secret would impose an enormous expense to prevent nothing more than a school boy’s trick. We introduce here no new or radical ethic *1017since our ethos has never given moral sanction to piracy. The market place must not deviate far from our mores. We should not require a person or corporation to take unreasonable precautions to prevent another from doing that which he ought not do in the first place. Reasonable precautions against predatory eyes we may require, but an impenetrable fortress is an unreasonable requirement, and we are not disposed to burden industrial inventors with such a duty in order to protect the fruits of their efforts. “Improper” will always be a word of many nuances, determined by time, place, and circumstances. We therefore need not proclaim a catalogue of commercial improprieties. Clearly, however, one of its commandments does say “thou shall not appropriate a trade secret through deviousness under circumstances in which countervailing defenses are not reasonably available.”

Having concluded that aerial photography, from whatever altitude, is an improper method of discovering the trade secrets exposed during construction of the DuPont plant, we need not worry about whether the flight pattern chosen by the Christophers violated any federal aviation regulations. Regardless of whether the flight was legal or illegal in that sense, the espionage was an improper means of discovering DuPont’s trade secret.

The decision of the trial court is affirmed and the case remanded to that court for proceedings on the merits.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

LIPEZ, Circuit Judge.

As one observer has noted, this case, which raises important and unsettled legal issues under the Visual Artists Rights Act (“VARA”), may well serve as “the ultimate how-not-to guide in the complicated world of installation art.” Geoff Edgers, Dismantled, The Boston Globe, Oct. 21, 2007, at IN. Artist Christoph Büchel conceived of an ambitious, football-field-sized art installation entitled “Training Ground for Democracy,” which was to be exhibited at the Massachusetts Museum of Contemporary Art (“MASS MoCA,” or “the Museum”). Unfortunately, the parties never memorialized the terms of their relationship or their understanding of the intellectual property issues involved in the installation in a written agreement. Even more unfortunately, the project was never completed. Numerous conflicts and a steadily deteriorating relationship between the artist and the Museum prevented the completion of “Training Ground for Democracy” in its final form.

In the wake of this failed endeavor, the Museum went to federal court seeking a declaration that it was “entitled to present to the public the materials and partial constructions” it had collected for “Training Ground for Democracy.” Büchel responded with several counterclaims under VARA and the Copyright Act,1 seeking an *42injunction that would prevent MASS MoCA from displaying the unfinished installation and damages for the Museum’s alleged violations of his rights under both VARA and the general Copyright Act.

On cross-motions for summary judgment, the district court assumed that VARA applies to unfinished works of art, but it nonetheless ruled for the Museum in all respects because, even granting VARA’s applicability, it found no genuine issues of material fact. Massachusetts Museum of Contemporary Art Found., Inc. v. Büchel, 565 F.Supp.2d 245 (D.Mass.2008). Büchel appeals. Because we find that, if VARA applies, genuine issues of material fact would foreclose summary judgment on one of Büchel’s VARA claims—that MASS MoCA violated his right of artistic integrity by modifying the installation—we cannot assume that VARA applies to unfinished works but instead must decide its applicability. We conclude that the statute does apply to such works.

We further conclude that, in addition to his VARA claim, Büchel asserts a viable claim under the Copyright Act that MASS MoCA violated his exclusive right to display his work publicly. Accordingly, we reverse in part the grant of summary judgment for MASS MoCA and remand for further proceedings.

I.

A. The Parties

MASS MoCA opened in 1999 as a center for the creation and display of contemporary art. The Museum “seeks to catalyze and support the creation of new art, expose [its] visitors to bold visual and performing art in all stages of production, and re-invigorate the life of a region in socioeconomic need.” Massachusetts Museum of Contemporary Art, Mission Statement, http://www.massmoca.org/mission.php (last visited Jan. 13, 2010). In its expansive facility in North Adams, Massachusetts, the Museum strives to “make the whole cloth of art making, presentation and public participation a seamless continuum.” Id. Over the last decade, the Museum has hosted the production and presentation of over sixty exhibits of visual art, including over 600 works of art by more than 250 individual artists. Some of these works have been displayed in Building 5, the Museum’s signature exhibition space, which spans the length of a football field. The Museum strives to “offer visual artists the tools and time to create works of a scale and duration impossible to realize in the time and space-cramped conditions of most museums,” and MASS MoCA prides itself on exposing its audiences to “all stages of art production: rehearsals, sculptural fabrication, and developmental workshops are frequently on view, as are finished works of art.” Id.

Christoph Büchel is a Swiss visual artist who lives and works in Basel, Switzerland. He is “known for building elaborate, politically provocative environments for viewers to wander, and sometimes to crawl, through.” Randy Kennedy, The Show Will Go On, but the Art Will Be Shielded, N.Y. Times, May 22, 2007, at E1 (“The Show Will Go On ”). One critic has stated that “Mr. Büchel’s environments are huge in scale,” “like bristling three-dimensional history paintings,” yet are “so obsessively detailed that they might best be described as panoramic collage.” Roberta Smith, Is It AH Yet? And Who Decides?, N.Y. Times, Sept. 16,2007, at 21.

B. Factual Background

Focusing first on those facts that are undisputed, we sketch the course of dealings between Büchel and MASS MoCA to put this appeal in context.2 MASS MoCA *43became interested in planning a new installation with Büchel. The artist visited the North Adams facility in October 2005 to begin preliminary discussions regarding the project, and those discussions continued into 2006. At some point during this time, Büchel proposed, and the Museum agreed to, a project entitled “Training Ground for Democracy.” As Museum Director Joseph Thompson indicated in a letter to Büchel’s gallery representatives, MASS MoCA understood that “Büchel’s projects typically require a lengthy period of installation and preparation,” and that, given the gallery space of Building 5, “this project [would] be his largest venture to date.”

Büchel conceived of the exhibit as “essentially a village, ... containing] several major architectural and structural elements integrated into a whole, through which a visitor could walk (and climb).” According to an affidavit submitted to the district court, Büchel envisioned the work in the following way:

It was to adopt the role-play of U.S. military training for its visitors, who would be given the opportunity to “virtually” change their own various identities in relation to the collective project called “democracy”: training to be an immigrant, training to vote, protest, and revolt, training to loot, training iconoclasm, training to join a political rally, training to be the objects of propaganda, training to be interrogated and detained and to be tried or to judge, training to reconstruct a disaster, training to be in conditions of suspended law, and training various other social and political behavior.

In August 2006, Büchel spent ten days in residence at MASS MoCA. During this time, he and a partner prepared a basic schematic model of the proposed installation. MASS MoCA agreed to acquire, at Büchel’s direction but its own expense, the materials and items necessary for the project.

Unfortunately, the parties never formalized the contours of their relationship or firmly established the project’s financial scope and precise specifications by executing any written instrument. Although MASS MoCA’s curator, Nato Thompson (no relation to the Museum Director),3 sent Büchel’s gallery sales representative in the United States a letter on September 14, 2006 that was designed to “formalize [the parties’] relationship on this project,” there is no indication that Büchel himself ever saw, much less signed, this proposal.4 The gallery responded with a proposed contract of its own, providing that MASS MoCA should bear the costs of transporting ' and organizing the various materials for the installation. The Museum did not respond to this proposal. Additionally, it is undisputed that Büchel never signed a document waiving any rights to which he would otherwise be entitled under VARA. The parties did apparently agree, however, that once the planned installation was fin*44ished, and after the public exhibition period had concluded, MASS MoCA would not contest Büchel’s sole title to any copyright in the completed work. The parties set an opening date of December 16, 2006 for the exhibit.

Over the course of the fall, tensions began to develop between the artist and MASS MoCA employees, particularly Joseph Thompson. “In summary, the museum felt the artist’s directions were vague, and his financial and logistical demands were increasingly unreasonable; the artist felt the museum was compromising his artistic integrity and failing to follow his instructions.” MASS MoCA, 565 F.Supp.2d at 247. One frequent source of conflict between the parties was the budget, with the Museum understandably concerned about keeping its costs for the massive project under control, and Biichel understandably insistent that his vision for “Training Ground” be fully realized. But as the district court correctly noted, “[t]he dispute about these financial understandings is not material” to whether Biichel has presented triable claims under either VARA or the Copyright Act, id. at 250, and we therefore need not focus on its messy details.

Instead, for our purposes, the key conflict between MASS MoCA and the artist involved Biichel’s dissatisfaction with the way in which the Museum was implementing his instructions and procuring the items necessary for the installation. Biichel himself was not present in North Adams for the first several months of work on the project. Instead, he conducted much of his work on the installation throughout the fall of 2006 remotely, by providing Museum personnel with detailed instructions as to the particular materials he required and their placement within the exhibition space.

In the words of the district court, “[a]t various points in the development of the installation, Biichel proposed several major components,” some but not all of which later became part of the installation “as its elements evolved through discussions with MASS MoCA during the construction process.” Id. These major components included a movie theater, a house, a bar, a mobile home, various sea containers, a bomb carousel, and an aircraft fuselage. Id. The Museum had begun seeking out some of these materials and others for potential use in the installation as soon as Biichel left North Adams at the end of August 2006, and continued to do so throughout the fall. One of the Museum’s curators described the search for these items (at Biichel’s direction) as “the ultimate scavenger hunt.” However, problems soon arose, especially between Thompson and Biichel, as to the progress of the project, particularly when, as Thompson explained in an internal Museum email dated October 28, 2006, he had tried to “move the project along” by “making a few decisions in [Biichel’s] stead.” Thompson noted that Biichel, whom he described as having “clear vision” and “rock solid integrity,” had taken “extreme, mortal!] offense” to Thompson’s efforts.

On October 29, 2006, Biichel returned to North Adams to complete “Training Ground for Democracy,” and three of his assistants from Switzerland arrived shortly thereafter. Unhappy with some of the work that had been done by the Museum in his absence, Biichel felt that certain logistical and organizational failures by the Museum had endangered the timely opening of the show. Biichel wrote in an email to Thompson that he would not allow the Museum to open an “unfinished show in my name, since you are responsible for this major delay.” By early December 2006, Biichel insisted that the Museum postpone the opening of the show and as*45serted that he would not “accept an opening of a work in progress or other compromise.” During the first week of the month, MASS MoCA agreed to delay the opening, posting the following message on its website: “Due to logistical complexities encountered by the museum in preparing galleries for Christoph Büehel’s vast installation, the exhibition’s official opening date ... will be re-scheduled.”

Büchel remained onsite at the Museum working on “Training Ground” until December 17, 2006, when he left for the holidays. In Büchel’s estimation, “Training Ground” was then only about 40% complete. At the time, he planned to return on January 8, 2007, in order to finish the work in time for a March 3 opening. When he left North Adams, the artist was obviously disappointed with the progress of “Training Ground.” He called the Museum disorganized and faulted it for underestimating the scope of his project. He felt that Museum employees, by failing to precisely carry out his detailed instructions and making artistic decisions in his stead, had generated even more work for his crew, as numerous components of the installation had to be reworked to Büchel’s specifications. In general, he felt that the Museum was trying to scale back his artistic vision without consulting him.

Meanwhile, the Museum was running out of money for the project. In an attempt to secure further funding, it disregarded Büchel’s express wishes and, in late December 2006, asked for money from his galleries. Angry and frustrated, the artist wrote that he would not move forward with the installation until “all financial problems are solved, regarding ALL elements of the show and until my crew is being sure that they [are] getting paid.” By mid-January 2007, tensions had escalated to the point where Büchel informed the Museum that he would not return to continue work on “Training Ground” unless certain conditions, both financial and artistic, were met.

In Büehel’s absence, MASS MoCA staff continued to work on the installation. The parties disagree as to whether the employees were merely executing instructions left by the artist or whether their actions represented independent artistic judgment, exercised in direct contravention of Büchel’s express wishes. The parties also disagree as to whether, in the spring of 2007, while negotiations had stalled but work on the installation was ongoing, the Museum promoted—and even showed— the unfinished work to numerous visitors without Büchel’s consent, in one form or another.

As the vitriolic exchanges between the parties continued, and negotiations over the project’s eventual completion became hopeless, “Training Ground” languished in its unfinished state. It became clear that Büchel would not complete the installation. On May 22, 2007, MASS MoCA announced the cancellation of “Training Ground,” and contemporaneously publicized the opening of a new exhibit entitled “Made at MASS MoCA,” which was to be “a documentary project exploring the issues raised in the course of complex collaborative projects between artists and institutions.” Massachusetts Museum of Contemporary Art, Press Release, Presentation of Training Ground for Democracy Cancelled; New Exhibition, Made at MASS MoCA to Open on Saturday, May 26 (“Press Release”), available at http://www.massmoca. org/event_details.php?id=144 (May 22, 2007). The press release noted that this lawsuit had been filed the previous day; it also highlighted the Museum’s desire to use its “other experiences working with artists” to “provide [its] audience with thought-provoking insights into the complexities of the art-making process.” Id. *46The release further explained that, due to “space constraints imposed by the materials assembled for Training Ground for Democracy," the exhibition would be presented in the Museum’s “only remaining available gallery space”; therefore, in order to enter the exhibit, visitors would have to pass through Building 5, “housing the materials and unfinished fabrications that were to have comprised elements of Training Ground for Democracy." Id. The Museum represented that “[Reasonable steps [had] been taken to control and restrict the view of these materials, pending a court ruling.”

When “Made at MASS MoCA” opened, many in the art world disagreed with the Museum’s handling of its dispute with Büchel, though the parties have different views on whether the Museum’s actions ultimately tarnished the artist’s reputation. Moreover, the parties differ on whether the “reasonable steps ... taken to control and restrict the view of the[ ] materials”— the placement of yellow tarpaulins over the unfinished work—actually concealed all of the individual components and vital design elements of “Training Ground,” or whether the tarpaulins simply “hid[] an elephant behind a napkin,” effectively inviting individuals to peek behind the cloth coverings and view the unfinished work. See Charles Giuliano, Christoph Buchel’s Tarp Art at Mass MoCA: Crap Under Wrap (July 31, 2007) (“Crap Under Wrap ”), available at http://www.berkshirefin earts.eom/show_article.php?articleJR=368 & category=finearts.

C. Procedural Background

The Museum sued Büchel on May 21, 2007, in the United States District Court for the District of Massachusetts. The complaint asserted a single claim for declaratory relief under VARA. The Museum sought a declaration that it was “entitled to present to the public the materials and partial constructions assembled in connection with an exhibit planned with the Swiss artist Büchel.” Büchel responded by asserting five counterclaims against the Museum. The first sought a declaratory judgment and an injunction under VARA prohibiting the Museum from publicly displaying “the unfinished Work of Art or any of its component elements.” The second sought damages for MASS MoCA’s alleged violations of Büchel’s VARA rights by “intentionally distorting] and modifying] the Work of Art” and allowing members of the public to “see and pass through” the unfinished work, both with and without the yellow tarpaulins. The third, fourth and fifth counterclaims sought damages and injunctive relief under the Copyright Act based on alleged violations of Büchel’s right to publicly display and create derivative works from his work.

On MASS MoCA’s motion, the court ordered an expedited discovery schedule that included a private viewing by the district court of Building 5 and the unfinished installation. After the close of discovery, both sides filed cross-motions seeking summary judgment on the complaint and all counterclaims. On September 21, 2007, the court held oral argument on the cross-motions and ruled from the bench. That decision addressed only the Museum’s original complaint seeking declaratory relief to allow public display of the partially completed project and Büchel’s corresponding counterclaim seeking to prevent the Museum from showing the then-existing work. The court ruled in favor of the Museum, noting that nothing in VARA prevented MASS MoCA from showing the incomplete project. Therefore, MASS MoCA was “entitled to present” the unfinished installation to the public as long as it posted a disclaimer that would “inform anyone viewing the exhibit that the materials assembled in Building 5 *47constitute an unfinished project that [did] not carry out the installation’s original intent.” The court correspondingly denied the artist’s request for injunctive relief barring public display of the unfinished installation, ruling that he had failed to prove a likelihood of success on the merits of his VARA claim. The court stated that it would “in the coming weeks” issue a detailed memorandum explaining its oral rulings and addressing the remaining claims.

However, several days after obtaining the ruling in its favor, MASS MoCA changed course. The Museum posted an announcement on its website stating that it had “begun removing materials gathered for Training Ground for Democracy and [would] not permit the public to enter the planned installation.” MASS MoCA Blog, “We’ll Remove Training Ground,” http: //blog.massmoca.org/2007/09/28/well-remove-training-ground/ (Sept. 28, 2007) (last visited Jan. 13, 2010).

On July 11, 2008, the district court issued its written opinion, recognizing that some of the issues presented in the case were now moot, but nevertheless wishing to explain its holding and to address the VARA and Copyright Act claims remaining in the case. The court summarized its holding this way:

When an artist makes a decision to begin work on a piece of art and handles the process of creation long-distance via e-mail, using someone else’s property, someone else’s materials, someone else’s money, someone else’s staff, and, to a significant extent, someone else’s suggestions regarding the details of fabrication—with no enforceable written or oral contract defining the parties’ relationship—and that artist becomes unhappy part-way through the project and abandons it, then nothing in the Visual Artists Rights Act or elsewhere in the Copyright Act gives that artist the right to dictate what that “someone else” does with what he has left behind, so long as the remnant is not explicitly labeled as the artist’s work. No right of artistic “attribution” or “integrity,” as those terms are conceived by VARA, is implicated, let alone violated in these circumstances. Similarly, the Copyright Act provides no mechanism for relief, legal or equitable, to an artist such as Defendant Büchel here, based on the decision of an exhibitor such as Plaintiff MASS MoCA to allow patrons to walk past covered components of an unfinished installation.

565 F.Supp.2d at 248-29. The court therefore granted MASS MoCA’s motion for summary judgment and denied Büchel’s, entering judgment for the Museum on its claim for declaratory relief as well as on all five of Büchel’s counterclaims. Büchel appeals.

II.

Passed in 1990, the Visual Artists Rights Act, 17 U.S.C. § 106A, was an amendment to the Copyright Act that protects the “moral rights” of certain visual artists in the works they create, consistent with Article Qbis of the Berne Convention. Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 133 (1st Cir.2006); Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 83 (2d Cir.1995) (citing H.R.Rep. No. 101-514, at 5 (1990) (“House Report”), as reprinted in 1990 U.S.C.C.A.N. 6915, 6917).5 The “ru*48brie of moral rights encompasses many varieties of rights,” but the two most widely recognized are attribution and integrity. Id. at 81 (citing Ralph E. Lerner & Judith Bresler, Art Law 417, 420 (1989)). We will discuss both of these in detail below, but note briefly now that the right of attribution protects the author’s right to be identified as the author of his work and also protects against the use of his name in connection with works created by others. Id. The right of integrity “allows the author to prevent any deforming or mutilating changes to his work.” Id. Although these moral rights “exist independently] of the economic rights” granted to all authors under the Copyright Act, 5 William F. Patry, Patry on Copyright § 16:1 (2009), they are part of the same statutory framework.

A. The Copyright Act

Under the Copyright Act, “[c]opyright protection subsists ... in original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). A copyright owner has certain exclusive rights to the work, which are enumerated in 17 U.S.C. § 106. T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97, 108 (1st Cir.2006). Of partieular relevance to this litigation, the copyright holder has the exclusive right to publicly display the copyrighted work and to prepare derivative works based upon it. 17 U.S.C. § 106(5), (2). “One infringes a copyright when he or she violates one of the exclusive rights to a work held by a copyright owner, and the owner has the right to sue for infringement.” T-Peg, Inc., 459 F.3d at 108 (citing 17 U.S.C. § 501). The remedies provided by the Copyright Act include injunctive relief and actual or statutory damages. See 17 U.S.C. §§ 502, 504.6

B. VARA

Beyond the Copyright Act’s protections of certain economic rights, VARA provides additional and independent protections to authors of works of visual art. See Carter, 71 F.3d at 81-83. A work of visual art is defined to include “a painting, drawing, print, or sculpture,7 existing in a single copy” or in a limited edition. 17 U.S.C. § 101. The definition specifically excludes a number of works that are otherwise copyrightable, including motion pictures and other audiovisual works, books, posters, periodicals, works made for hire, and merchandising, advertising, promotional, or packaging materials. Id.

*49VARA provides that, in addition to the exclusive rights provided by section 106 of the Copyright Act, but subject to certain limitations, the author of a work of visual art

(1) shall have the right—

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have the right—

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

17 U.S.C. § 106A(a).

VARA’s passage reflected Congress’s belief that the art covered by the Act “meet[s] a special societal need, and [its] protection and preservation serve an important public interest.” House Report at 5-6, as reprinted in 1990 U.S.C.C.A.N. at 6915-16. To encourage the creation of such art, VARA protects the “moral rights” of its creators. These are “rights of a spiritual, non-economic and personal nature” that exist “independently of an artist’s copyright in his or her work” and “spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist’s personality, as well as the integrity of the work, should therefore be protected and preserved.” Carter, 71 F.3d at 81. The recognition of moral rights fosters a “ ‘climate of artistic worth and honor that encourages the author in the arduous act of creation.’ ” Id. at 83 (quoting House Report at 6, as reprinted in 1990 U.S.C.C.A.N. at 6915). Although an artist may not transfer his VARA rights (as they are considered an extension of his personality), he may waive those rights by “expressly agreeing] to such waiver in a written instrument.” 17 U.S.C. § 106A(e)(l). Aso, “[a]ll remedies available under copyright law, other than criminal remedies, are available in an action for infringement of moral rights.” Carter, 71 F.3d at 83 (citing 17 U.S.C. § 506); see also 17 U.S.C. § 501(a).8

More specifically, by guaranteeing the moral rights of “attribution” and “integrity,” VARA “ ‘protects both the reputations of certain visual artists and the works of art they create.’ ” Carter, 71 F.3d at 83 (quoting House Report at 6, as reprinted in 1990 U.S.C.C.A.N. at 6915). Before discussing the precise contours of these rights, we consider whether, as a threshold matter, the indisputably unfinished “Training Ground for Democracy” *50was a “work of visual art” within the meaning of VARA.

C. Does VARA Apply to Unfinished Works of Art?

Büchel argues that the district court erred by failing to recognize that VARA applies with equal force to incomplete artistic endeavors that would otherwise be subject to VARA protection. He asserts that the Act’s plain language compels such a conclusion, which he claims is confirmed by the legislative history and sparse case law interpreting the statute. The Museum, for its part, does not argue that unfinished works are excluded from VARA’s scope. Instead, it interprets the district court’s opinion as “expressly assuming]” that VARA applied to “Training Ground for Democracy” in its incomplete state, and then concluding that Büchel had failed to put forth sufficient evidence to raise a triable issue regarding the violation of his rights under the statute.

We do not read the district court’s ruling to conclude categorically that VARA does not apply to unfinished works. Rather, the court held that, if the statute applied, “display of th[e] unfinished installation would have violated neither Büchel’s right of attribution nor his right of integrity.” 565 F.Supp.2d at 259. Nonetheless, the court repeatedly expressed skepticism about Büehel’s claim that the incomplete “Training Ground” fell within VARA’s scope, observing at one point in its opinion that “unfinished art may not be covered by VARA at all.” Id. at 258; see also id. at 259 (“[I]t is doubtful that VARA even covered the assembled materials that constituted this unfinished installation.”). Moreover, the court qualified the statute’s application to unfinished works: “To the extent that an artist seeks protection for an uncompleted work, a violation of one of VARA’s two explicitly recognized rights must be demonstrated with special clarity.” Id. at 258.

Our review of the district court’s interpretation of VARA is de novo. Phillips, 459 F.3d at 139. “ ‘As in all statutory construction cases, we begin with the language of the statute,’ ” id. (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002)), and “[i]f the meaning of the text is unambiguous our task ends there as well,” United States v. Godin, 534 F.3d 51, 56 (1st Cir.2008). “If the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” In re Rudler, 576 F.3d 37, 44 (1st Cir.2009) (quotation marks and citations omitted).

The definition of a “work of visual art” for VARA purposes is stated “in terms both positive (what it is) and negative (what it is not).” Carter, 71 F.3d at 84. An unfinished sculptural installation such as “Training Ground for Democracy” is not one of the items specifically excluded from VARA protection,9 and MASS MoCA wisely does not attempt to argue otherwise. Instead, we must determine whether the *51“positive” aspect of the definition of “work of visual art” includes an unfinished, version of a “sculpture[ ] existing in a single copy.” 17 U.S.C. § 101.

The text of VARA itself does not state when an artistic project becomes a work of visual art subject to its protections. However, VARA is part of the Copyright Act, and that Act’s definition section, which defines “work of visual art,” specifies that its definitions, unless otherwise provided, control throughout Title 17. See 17 U.S.C. § 101. That general definitional section of the Copyright Act states that a work is “created” when it “is fixed in a copy ... for the first time.” Further, “where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time.” 17 U.S.C. § 101 (emphasis added). A work is “fixed” when it has been formed, “by or under the authority of the author,” in a way that is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Id.

Not surprisingly, based on section 101’s general definitions, courts have held that the Copyright Act’s protections extend to unfinished works. See, e.g., Dumas v. Gommerman, 865 F.2d 1093, 1097 (9th Cir.1989), rejected on other grounds by Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739, 742 n. 8, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989); Zyware, Inc. v. Middlegate, Inc., No. 96 Civ. 2348(SHS), 1997 WL 685336, at *4 (S.D.N.Y. Nov.4, 1997) (noting that there is “no requirement that a work be complete before it is protected by the Copyright Act”); Playboy Enters. Inc. v. Dumas, 831 F.Supp. 295, 314 (S.D.N.Y.1993) (“[T]he [Copyright] Act protects works in progress.”), modified on other grounds by 840 F.Supp. 256 (S.D.N.Y.1993), aff'd in part, rev’d in part by 53 F.3d 549 (2d Cir.1995).

Reading VARA in accordance with the definitions in section 101, it too must be read to protect unfinished, but “fixed,” works of art that, if completed, would qualify for protection under the statute.10 To conclude otherwise would be “contrary to the rule that provisions of a single act should be construed in as harmonious a fashion as possible.” United States v. Maravilla, 907 F.2d 216, 231 (1st Cir.1990) (citation omitted). At least one circuit has previously assumed VARA’s applicability to unfinished works. See Carter, 71 F.3d at 83-88 (discussing VARA claims stemming from an unfinished, walk-through sculpture being installed in the lobby of a building).11

Our conclusion that the statute’s plain language extends its coverage to unfinished works makes it unnecessary to delve into VARA’s legislative history. We nonetheless note that we have looked closely at that history, and it fully supports our reading of the plain language. Common sense points in the same direction. Moral rights protect the personality and creative energy that an artist contributes to his or her work. That convergence between artist and artwork does not await the final brush stroke or the placement of the last element in a complex installation. *52 See, e.g., Monica Pa & Christopher J. Robinson, Making Lemons out of Lemons: Recent Developments in the Visual Artists Rights Act, 3 Landslide 22, 24 (Jan./Feb. 2009) (“[T]he history of art is full of sublime ‘unfinished’ works of art, such as Leonardo da Vinci’s Statue of a Horse (begun 1488), Michelangelo’s Tomb of Pope Julius II (begun 1505), or El Greco’s The Vision of St. John (1608-14).”); Laura Flahive Wu, Massachusetts Museum of Contemporary Art v. Büchel: Construing Artists’ Rights in the Context of Institutional Commissions, 32 Colum. J.L. & Arts 151, 163 (2008) (noting that “many works are considered ‘art’ even though they capture creative expression short of an artist’s ultimate realization of that expression”).

We thus hold that VARA protects the moral rights of artists who have “created” works of art within the meaning of the Copyright Act even if those works are not yet complete.12

III.

Given Büchel’s right to protection under VARA for his artistic investment in a partially completed artwork, we must now assess the district court’s ruling that Büchel failed to raise a genuine issue of material fact with respect to any of his claims. We review the district court’s grant of summary judgment de novo. Insituform Techs., Inc. v. Am. Home Assur. Co., 566 F.3d 274, 276 (1st Cir.2009). “The presence .of cross-motions neither dilutes nor distorts this standard of review.” Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir.2009) (quotation marks and citations omitted); see also Littlefield v. Acadia Ins. Co., 392 F.3d 1, 6 (1st Cir.2004) (“Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.”) (quotation marks and citation omitted). Summary judgment is appropriate where “there is no genuine issue as to any material fact” and “the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); see also Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir.2009). “A dispute is ‘genuine’ if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party. A fact is ‘material’ if it has the potential of determining the outcome of the litigation.” Scottsdale Ins. Co., 561 F.3d at 77 (citation omitted).

We first consider Büchel’s claims asserting violations of his attribution and integrity rights under VARA and then address his claims under other provisions of the Copyright Act, which assert violations of his rights to control the display of the installation and to create derivative works based on it.

A. The Scope of VARA’s Integrity and Attribution Rights

1. The Right of Integrity

VARA’s right of integrity, codified at 17 U.S.C. § 106A(a)(3)(A), provides that an artist shall have the right “to prevent *53any intentional distortion, mutilation, or other modification of [his or her] work which would be prejudicial to his or her honor or reputation, and [that] any intentional distortion, mutilation, or modification of that work is a violation of that right.” It thus allows artists to protect their works against intentional modifications that would be prejudicial to their honor or reputations. House Report at 6, as reprinted in 1990 U.S.C.C.A.N. at 6915.13

There is arguably some uncertainty about the plaintiffs burden of proof in a case such as this because the second part of section (a)(3)(A)—stating that “any intentional distortion, mutilation, or modification of th[e] work is a violation” of the right of integrity—does not explicitly require a showing of prejudice when the alteration already has occurred and damages, rather than injunctive relief, would be the appropriate remedy. See 5 Patry, supra, § 16:22 (noting the ambiguity). Because those VARA cases that make it to court are “generally ... decided on threshold questions such as whether the artist’s work is a work of visual art within the scope of the Act,” Pa & Robinson, supra, at 26, courts have had little occasion to give content to the rights that VARA guarantees. See Wu, supra, at 159 (“[C]ourts avoid construing the extent of VARA protection by finding that works do not meet the threshold requirements for ‘visual art’ protected by VARA.”). Unsurprisingly, therefore, we have found no case law discussing a possible difference in the showing required for injunctive relief and damages for right-of-integrity claims.

Some courts, however, have assumed •without analysis that the prejudice showing is necessary for both injunctive relief and damages. See, e.g., Hanrahan v. Ramirez, No. 2:97-CV-7470, 1998 WL 34369997, at *3 (C.D.Cal. June 3, 1998) (citing 17 U.S.C. § 106A(a)(3)); Carter v. Helmsley-Spear, Inc., 861 F.Supp. 303, 329-30 (S.D.N.Y.1994), aff'd in part, vacated in part, and rev’d in part by Carter, 71 F.3d at 77. At least one commentator likewise accepts, without discussion, that the damages remedy requires a showing of prejudice. See Melville B. Nimmer, 3-8D Nimmer on Copyright § 8D.06[C][1] (noting that “an intentional and prejudicial mutilation is an integrity violation, remediable through not only an injunction, but damages as well”). Interestingly, Nimmer raises, and dismisses, a different imprecision in section (a)(3)(A):

The statutory language—“distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation”—is susceptible of a reading whereby the requisite prejudice applies only to “modification,” not to the antecedents of “distortion” or “mutilation.” Though not without ambiguity, the better view under the Berne Convention, from which this language is drawn, is that prejudice applies in all three instances.

Id.

We agree with Nimmer’s view of the provision, including the application of the prejudice requirement to a claim for damages, and consider that construction soundly grounded in VARA’s legislative history. Under the heading “Purpose of the Legislation,” the House Report notes that the right of integrity “allows artists to protect their works against modifications and destructions that are prejudicial to *54their honor or reputations.” House Report at 6, as reprinted in 1990 U.S.C.C.A.N. at 6915. The Report also notes that the rights provided by VARA are “analogous to those protected by Article 6bis of the Berne Convention,” id., which in turn describes the right of integrity as applicable to “certain modifications and other derogatory actions” that would be prejudicial to the artist’s honor or reputation.14 Given the stated purpose of the legislation and the similar depiction of the integrity right in the Berne Convention, we conclude that Congress intended the prejudice requirement to apply to the right of integrity whether the remedy sought is injunctive relief or damages.15

Although VARA does not define the terms “prejudicial,” “honor,” or “reputation,” the House Report recommended that the prejudice inquiry “focus on the artistic or professional honor or reputation of the individual as embodied in the work that is protected,” and “examine the way in which a work has been modified and the professional reputation of the author of the work.” House Report at 15, as reprinted in 1990 U.S.C.C.A.N. at 6925-26 (footnotes omitted). Relying on dictionary definitions of prejudice, honor and reputation, the district court in Carter concluded that it should “consider whether [the proposed] alteration would cause injury or damage to plaintiffs’ good name, public esteem, or reputation in the artistic community.” 861 F.Supp. at 323. We think this a useful approach, but emphasize that the focus is on the artist’s reputation in relation to the altered work of art; the artist need not have public stature beyond the context of the creation at issue. See House Report at 15, as reprinted in 1990 U.S.C.C.A.N. at 6925 (“[A]n author need not prove a preexisting standing in the artistic community.”).

2. The Right of Attribution

VARA’s right of attribution grants the author of a work of visual art the right, in part, (1) “to claim authorship of that work”; (2) “to prevent the use of his or her name as the author of any work of visual art which he or she did not create”; and (3) “to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, *55mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.” 17 U.S.C. § 106A(a)(l),(2). The right “ensures that artists are correctly identified with the works of art they create, and that they are not identified with works created by others.” House Report at 6, as reprinted in 1990 U.S.C.C.A.N. at 6915. In addition, if a work of visual art has been distorted or modified (and, unlike the integrity right, the original distortion or modification need not be intentional), associating the author’s name with the distorted work against his wishes would violate his right of attribution.

The right of attribution under VARA thus gives an artist a claim for injunctive relief to, inter alia, assert or disclaim authorship of a work. Whether VARA entitles an artist to damages for violation of the right of attribution is a separate question. We find the answer in the difference between the statutory language on the right of integrity and the language on the right of attribution. Subsection (a)(3) of section 106A, which codifies the right of integrity, is further divided into two subsections: (A) confers the right to protect the work against intentional alterations that would be prejudicial to honor or reputation, and (B) confers the right to protect a work of “recognized stature” from destruction.16 Although both subsections are framed as rights “to prevent” certain conduct, they both also contain an additional clause stating that the occurrence of that conduct is, at least in certain circumstances, “a violation of th[e] right” to prevent the conduct from happening. See 17 U.S.C. § 106A(a)(3)(A) (“any intentional distortion, mutilation, or modification of that work is a violation of that right”); id. at § 106(a)(3)(B) (“any intentional or grossly negligent destruction of that work is a violation of that right”).

No such “violation” clause is included in the sections codifying the right of attribution. See Nimmer, supra, at § 8D.06[B][1] (“The statute does not make any provision to redress violation of any of the foregoing three attribution rights.”). The legislative history sheds no light on this difference, but Nimmer speculates as follows:

Perhaps the implication is that whereas an integrity violation could give rise to a monetary recovery, failure to attribute is remediable solely through injunction. If that conclusion were intended, Congress certainly could have expressed its intent less obliquely.

Id. We agree with Nimmer’s surmise that VARA does not provide a damages remedy for an attribution violation. Where the statutory language is framed as a right “to prevent” conduct, it does not necessarily follow that a plaintiff is entitled to damages once the conduct occurs. The question is whether “doing” the act the artist has a right to prevent also triggers a damages remedy, and the statutory language indicates that Congress answered that question for the attribution right differently from the integrity right.

It is also noteworthy that Congress crafted a damages remedy for the destruction of a work of recognized stature that is narrower than the right to prevent destruction of such works. While an artist may “prevent any destruction of a work of recognized stature,” only an “intentional or grossly negligent destruction of that work *56is a violation of that right.” 17 U.S.C. § 106A(a)(3)(B) (emphasis added). This narrowing further indicates that Congress did not intend a damages remedy to arise automatically from the right to prevent conduct. In failing to provide a damages remedy for any type of violation of the moral right of attribution, Congress may have concluded that artists could obtain adequate relief for the harms of false attribution by resorting to the Copyright Act and other traditional claims.

B. Büchel’s VARA Claims

With this legal framework in mind, we turn to the record before the district court. By dismantling “Training Ground,” the Museum prevented the further use of Biichel’s name in connection with the work, eliminating any basis for injunctive relief, and we therefore do not address the attribution claim in our VARA analysis. We thus consider the evidence in the light most favorable to Büchel in determining whether there are genuine issues of material fact regarding the alleged violations of his right of integrity.

As noted above, the district court concluded that Büchel’s right of integrity was not implicated by MASS MoCA’s conduct. The court found that “nothing in MASS MoCA’s planned display of the unfinished installation would have violated Büehel’s right of integrity, for the simple reason that no completed work of art ever existed on these facts for the museum to distort, mutilate or modify.” 56 F.Supp.2d at 260. Although the court stated that it would assume that VARA applied to unfinished works, its analysis appears to be influenced by a more limited view of the statute’s scope. The court stated that “[t]o suggest that the display of an unfinished and abandoned work somehow constitutes a distortion, mutilation, or modification of that non-existent work is simply inconsistent with the ordinary usage of those terms.” Id. Having concluded that VARA applies with full force to unfinished works, however, we cannot accept the district court’s reliance on the unfinished state of “Training Ground” to minimize the rights of its creator.

It cannot be disputed that, at least by the time Büchel left North Adams in December 2006, “Training Ground” was “fixed” within the meaning of the Copyright Act—-i.e., materials had been placed in Building 5 “by or under the authority of the author” in a “sufficiently permanent or stable” manner to allow the work to be “communicated for a period of more than transitory duration.” 17 U.S.C. § 101. The elements of the installation had been chosen by Büchel, and his assistants and the Museum workers had put numerous components of the project in place under his direct supervision. Although far from complete, the work by the end of 2006 included parts of the “Saddam Compound” and the cinema, and Büchel and his assistants had begun detailing several of the containers intended to house elements such as a jail, museum and voting booths. With this substantial work in place, the sculpture had an established presence in Building 5. Büchel thus had rights in the work that were protected under VARA, notwithstanding its unfinished state.

Büchel alleges that MASS MoCA violated his right to integrity in three distinct ways: first, by continuing to work on the installation without his authorization, particularly in early 2007, and by then exhibiting the distorted artwork to the public; second, by using tarpaulins to “partially cover[]”—and thus modify and distort—• the installation, and allowing Museum visitors to see it in that condition; and third, merely by showing Büchel’s work in its unfinished state, which he claims was a distortion. Büchel asserts that these ac*57tions caused prejudice to his honor or reputation.

As we shall explain, we conclude that summary judgment was improperly granted to MASS MoCA because material disputes of fact exist concerning the first of Büchel’s integrity claims—i.e., that MASS MoCA modified “Training Ground” over his objections, to his detriment. We further conclude that the record contains sufficient evidence to allow a jury to find that MASS MoCA’s actions caused prejudice to Büchel’s honor or reputation! The other integrity claims, however, are unavailing.

1. Continuing Work on “Training Ground”

Büehel asserts that, in the months following his departure from North Adams in December 2006, the Museum encroached on his artistic vision by making modifications to the installation that in some instances were directly contrary to his instructions. In rejecting Büchel’s VARA claims, the district court described the Museum’s actions as perhaps “occasionally misguided” attempts “to implement Büchel’s long-distance instructions.” 565 F.Supp.2d at 260. The court found that these “[fjumbled efforts to assist in creating, or failing to create, a work of art are not equivalent to distortion, modification, or mutilation of the art.” Id. at 260-61.

Although a jury might agree with the court’s assessment, the evidence viewed in the light most favorable to Büehel would allow a finding that at least some of the Museum’s actions violated VARA. The record permits the inference that, even during his time as an artist-in-residence at MASS MoCA, Museum staff members were disregarding his instructions and intentionally modifying “Training Ground” in a manner that he did not approve. For example, on December 14, 2006, just before he left for the holidays, Büehel complained to Thompson that in “many cases people just do stuff without checking back if its ok to do something], when they think by themselves the plan has to be changed.” Büehel expressed further concerns in an email to Thompson later that month: “I don’t [kjnow if this is really a great opportunity when you get an invitation to do a show, where you have to make constantly tons of compromises, where you have to fight constantly against stubborn[n]ess as well [as] against the institution and work with people that think they know my art better than I do as well [as] try to sabotage the project....”

In early 2007, when he was no longer on-site, Büehel again accused the Museum of “sabotage acts” and, in a January 16 letter, issued an ultimatum: he would return to North Adams to complete “Training Ground” only if the Museum assented to a number of specific conditions. Aside from certain budgetary concerns irrelevant here, Büehel included the following among his list of demands:

There is NO negotiation about the scope of the project.

There are no elements to be eliminated as you propose and I don’t accept any orders and any more pressure or compromises how things have to be done, neither from you or your crew....

I will not give you any permission to show an unfinished project nor will I show nor let you show any work in progress, as you proposed already earlier.

I will not accept without consequences any additional sabotage acts, as done to artworks of mine and as well done to the installation in progress[.]

The letter also identified several points of disagreement with the Museum concerning the content of the project, including Büchel’s insistence that there be “no trans*58port street through the exhibition” and that he did not “need to be told if an airplane fuselage section fits in the show or not. I don’t negotiate constantly my art with you or Nato.... ” Accusing the Museum director of showing “little respect towards [his] plans,” he told Thompson “please don’t tell me all the time how I have to do my project regarding its scope and it’s [sic] methods that needs [sic] to be applied.”

Unsatisfied with the Museum’s response to his list of demands, Büchel wrote to Thompson again on January 27, 2007. He warned that, based on the information he had been provided, “there [was] a lot of stuff not being done according to my instructions.” Again, he noted several elements of the work that had been installed against his wishes.17 Thompson and Büehel traded emails during the first few days of February, with Büchel stating that he would “not negotiate further this matter ... because almost any of the main conditions are simply not fulfilled” and Thompson writing that he believed the Museum had “responded to [Büchel’s] main issues.”

After that, direct communication between Büchel and the Museum became sparse. It was during this time, Büchel alleges, that the Museum developed a “Plan B”18 to be implemented in the event—which was looking increasingly likely—that he did not return to finish the exhibit. Plan B, which involved publicly exhibiting the unfinished installation without the artist’s permission, called for completing various elements of the installation in a way the Museum knew might differ from Büchel’s artistic concept. Büchel cites an email chain on February 14 that included Joseph Thompson and Dante Birch, in which Thompson, stating that the Museum “seemfed] to be getting closer and closer to Plan B,” gave specific instructions on various elements of the installation. Thompson suggested that Museum staff do “[a]nything else Dante and Nato feel is known with 80% certainty.”

At least some Museum staff members recognized that continuing to work on the installation without Büchel’s input might be problematic. Later in the February 14 email chain, Dante Birch noted that he was “interested in protecting the museum from intellectual property issues.” Pointing out that the show was advertised as a Büchel in the Museum’s schedule, he stated that when reviewers came, “the question will be ‘what is it?’ ... and if it’s reviewed as a Buchel we’re in deep shit.” Thompson’s plans also raised concern among other MASS MoCA employees, including curator Susan Cross, who cautioned Thompson in a January 31 email that “we tend to forget that whether we’re doing the welding or not, there is an ‘author’—an artist for whom we shouldn’t make decisions.... At what point, if at all, does an artist lose his right to owning the idea and his/her ‘intellectual property?’ ... I think it is still art and still belongs to Buchel.”

Both in his deposition and in his affidavit, Büchel described ways in which he felt the Museum had knowingly disregarded his specific instructions. For example, MASS MoCA’s decision to build a cinderblock wall through the Cape Cod-style house in the installation, despite Bü*59chel’s expressed desire that the construction await his return, resulted in what Büehel considered a “big distortion of the meaning of that element.” The record is replete with similar allegations concerning other components of the installation, including the cinema, the bomb carousel, the Saddam spiderhole, the police car and the mobile home. Indeed, even the Museum, in its August 31, 2007 memorandum of law in support of its motion for summary judgment, admitted that the installation “Materials as they now stand reflect significant aesthetic and design choices by MASS' MoCA personnel, including with respect to the layout of the Materials, and with respect to the selection and procurement of pre-existing buildings and vehicles that have been modified and incorporated into the Materials.” (Emphasis added.)19

MASS MoCA argues that the evidence, taken in its entirety, does not add up to a triable issue with respect to a violation of Büchel’s right of integrity, but shows only that Museum personnel were attempting to carry out Büchel’s vision based on his instructions. Indeed, the Museum notes that the work slowed as Büchel’s instructions became unavailable.20 MASS MoCA specifically disputes Büchel’s reading of the February 14 email chain as demon-strafing the Museum’s disregard of his creative rights over the installation, asserting that the discussion among its staff members in fact reflects a conscious effort to determine how far the Museum could appropriately go in light of the remaining instructions left by the artist. In one email, for example, Thompson noted that “we are putting the correct objects in the spaces cb indicated____That’s not ‘doing a buechel [sic]’ that’s prepping for buechel [sic] assuming, as we still are, that there is some chance we’ll see him here again.” Other communications in the record also could be interpreted as showing the Museum doing its best to carry out Büchel’s concept for the art work.

As we have noted, a jury may well accept the Museum’s depiction of its intention and its actions. At this juncture, however, the record must be viewed in the light most favorable to Büehel. The evidence we have described would permit a jury to find that the Museum forged ahead with the installation in the first half of 2007 knowing that the continuing construction in Büchel’s absence would frustrate— and likely contradict—Büchel’s artistic vision. We thus conclude that a jury issue exists as to whether these actions effected *60an intentional distortion or other modification of “Training Ground” that subjected MASS MoCA to liability under VARA.

The record also contains evidence from which a jury could conclude that the Museum’s alterations had a detrimental impact on Büchel’s honor or reputation. An article in the Boston Globe reported that, in February, Museum officials had shown the unfinished project to a group of Museum directors and curators who were attending an arts conference in the area. See Geoff Edgers, Behind, doors, a world unseen: Dispute cloaks massive installation at MASS MoCA Boston Globe (March 28, 2007), available at www.boston. com/ae/theater_arts/articles/2007/03/28/behind_doors_EL_world_unseen/ (“Behind doors, a world unseen”). Another journalist reported on observing the unfinished (and still untarped) work. See The Show Will Go On, supra.

Although the commentary generated by these visits is not all negative,21 there was sufficient evidence for a jury to find that the changes to “Training Ground” caused prejudice to Büchel. The New York Times noted that the exhibition would “certainly give people unfamiliar with his obsessive, history-driven aesthetic an inaccurate sense of his art, and this is indeed a form of damage.” Is It Art Yet?, supra. A critic for the Boston Globe similarly observed that “many people are going to judge [Büchel] and his work on the basis of this experience.” Ken Johnson, No admittance: MASS MoCA has mishandled disputed art installation, Boston Globe, July 1, 2007, at IN. One viewer, writing in Commentary magazine, observed that “I am not sure that it suffers from being enveiled.” Michael J. Lewis, The Cost of Transgression, http://w ww.commentarymagazine.com/blogs/index.php/lewis/499 (June 4, 2007). A review published in Berkshire Fine Arts—subtitled “Crap Under Wrap”—concluded that it would be a “huge mistake” to uncover the installation, which offered “virtually nothing of substance or interest.” Crap Under Wrap, supra.

The record thus shows that some viewers of the installation reacted unfavorably to the work in its allegedly modified and distorted form. A factfinder might conclude, of course, that it was Büchel’s underlying concept (notwithstanding its unfinished state) rather than MASS MoCA’s actions that elicited the negative reactions. However, a jury could also reasonably infer that the negative impressions resulted from the Museum’s unauthorized modifications to “Training Ground,” diminishing the quality of the work and thereby harming Büchel’s professional honor or reputation as a visual artist.

In concluding that Büchel has adduced sufficient evidence to support a right-of-integrity claim, we reject the Museum’s assertion that to find a violation of Büchel’s right of integrity in these circumstances would make it impossible for parties to collaborate on large-scale artistic works. The Museum warns that, under Büehel’s interpretation, “no one other than the artist himself ... may ever perform any work in fabricating visual art unless that specific task has been authorized by the artist.” We disagree. Although the artist’s vision must govern, that principle does not prevent collaboration at the implementation level so long as the artist’s vision guides that implementation. Here, Büchel alleges a campaign of intentional distortion and modification to his work in *61which Museum personnel repeatedly ignored his express wishes. Our holding that the summary judgment record precludes an affirmance of the district court on this claim may serve as a cautionary tale to museums contemplating similar installations in the future—guiding them to document the terms of their relationship and obtain VARA waivers where necessary—but it does not prevent museums or other collaborators from working cooperatively with artists on such non-traditional artworks.

2. Showing “Training Ground” Covered with Tarpaulins

Büchel also claims that MASS MoCA improperly modified and distorted “Training Ground” when it partially covered it with the yellow tarpaulins and displayed it in that condition. He asserts that the record shows beyond dispute that visitors looked behind the tarps, that the tarp-adorned installation was “judged by others to be Büehel’s work, and that his honor and reputation were harmed by it.” In response, the Museum argues that the yellow tarpaulins were merely functional—a way of keeping people “out” of the installation—rather than an aesthetic modification of the artwork that gave MASS MoCA patrons a distorted view of it.

Although the tarpaulins did prevent visitors to the Museum from seeing the entire unfinished installation, the record shows that a number of people were able to form an impression of “Training Ground” despite the partial covering. For example, according to one observer,

[the tarps] don’t reach the floor, and they rise only about two feet above eye level, so they don’t cover much. You can easily crouch down to slip your head underneath or peek through the slits between the vinyl sheets. Beyond the passageway formed by the tarps, the monumental elements of the installation rise all around you, plain as day—the cinderblock walls, the two-story house, the guard tower, the trailers, the carnival ride, all compacted together in a claustrophobic, politically surreal borough of hell, George Orwell by way of David Lynch.

Thomas Micehelli, Christoph Büchel Training Ground for Democracy, The Brooklyn Rail (September 2007), available at http://www.brooklynrail.org/2007/09/ artseen/buchel. Another critic noted that the installation “under all the tarps is really kind of a conceptual peep show. It doesn’t take much effort or imagination to see most of the work----Mass MoCA is hiding an elephant behind a napkin,” and called it a “wink, wink, wrap show.” Crap Under Wrap, supra. Photographs in the record confirm that the covers did not obscure the general path and layout of the installation. Indeed, given the location of “Training Ground,” visitors to “Made at MASS MoCA” could not avoid seeing the unfinished “Training Ground” bedecked in tarpaulins.

Nonetheless, although the installation unquestionably looked different with the tarpaulins partially covering it, we agree with the district court that the mere covering of the artwork by the Museum, its host, cannot reasonably be deemed an intentional act of distortion or modification of Büchel’s creation. To conclude otherwise would be to say that, even if all had gone well, the Museum would have been subject to a right-of-integrity claim if it had partially covered the work before its formal opening to prevent visitors from seeing it prematurely.

This is not to say that MASS MoCA was necessarily acting with pure intentions when it created “Made at MASS MoCA” in close proximity to the tarped “Training Ground.” It might be a fair inference that *62the Museum was deliberately communicating its anger with Büchel by juxtaposing his unfinished work with the successful artistic collaborations depicted in its new exhibition. The partial covering of “Training Ground” may have been intended to highlight, rather than hide, the failed collaboration.22 The right of integrity under VARA, however, protects the artist from distortions of his work, not from disparaging commentary about his behavior. In our view, a finding that the Museum’s covering of the installation constituted an intentional act of distortion or modification of Büchel’s artistic creation would stretch VARA beyond sensible boundaries.

3. Exhibiting “Training Ground” in Its Unfinished State

Büchel maintains that, even aside from the alleged modifications to “Training Ground,” merely exhibiting the work of art in its unfinished state, without the artist’s consent, constitutes a distortion. We reject this claim. A separate moral right of disclosure (also known as the right of divulgation) protects an author’s authority to “prevent third parties from disclosing [his or her] work to the public without the author’s consent,” and is not covered by VARA. See Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int’l L.J. 353, 373, 405 (2006) “([T]he VARA ignores the rights of disclosure and withdrawal and instead focuses on the rights of attribution and integrity....”).

Although Büchel proffered an expert who opined that showing an unfinished work without the artist’s permission is inherently a distortion, we decline to interpret VARA to include such a claim where ti separate moral right of disclosure is widely recognized in other jurisdictions and Congress explicitly limited the statute’s coverage to the rights of attribution and integrity. See Amy M. Adler, Against Moral Rights, 97 Cal. L.Rev. 263, 268 (2009) (noting that most European countries “recognize a right of divulgation, giving the artist the right to decide when (and whether) the work is complete and can be shown”); Rigamonti, swpra, at 356 (“The standard set of moral rights recognized in the literature consists of the author’s right to claim authorship (right of attribution), the right to object to modifications of the work (right of integrity), the right to decide when and how the work in question will be published (right of disclosure), and the right to withdraw a work after publication (right of withdrawal).” (footnotes omitted)); 5 Patry on Copyright § 16:23 (noting that VARA does not give the artist “a right to prohibit display of mutilated versions of his or her work, only the right to prohibit the mutilation itself’). Any right Büchel possesses to withhold display of his artwork must be found outside VARA. We consider below his claim to such a right under section 106(5) of the Copyright Act. See infra Section IV.

4. Summary of VARA Claims

After careful review of the record, we are persuaded that a reasonable jury could find that Büchel is entitled to relief under VARA based on the Museum’s continuing work on “Training Ground” over his objections. Genuine disputes of material fact foreclose summary judgment for either Büchel or MASS MoCA on that claim. *63We find no merit, however, in Büchel’s claim that MASS MoCA intentionally modified or distorted “Training Ground” by covering it with tarpaulins, and we reject as outside the scope of the statute Büchel’s claim that the Museum violated VARA by displaying the installation over his objections. We affirm the district court’s grant of summary judgment for the Museum on Büchel’s right-of-attribution claim, which became moot when MASS MoCA dismantled the installation in 2007.

IV.

We now assess Büchel’s challenge to the grant of summary judgment for MASS MoCA on his Copyright Act claims.

A. Public Display

The owner of a copyrighted work has the exclusive right to “display the copyrighted work publicly.” 17 U.S.C. § 106(5). Displaying a work is defined as “show[ing] a copy of it, either directly or by means of a film, slide, television image, or any other device or process.” 17 U.S.C. § 101. A “copy” includes the original. Id. Büchel argued below, as he does on appeal, that the Museum’s repeated public exhibitions of “Training Ground for Democracy” constituted a public display of his work in violation of his exclusive right under section 106(5). The district court gave no explicit reason for its dismissal of this claim, remarking only that “[f]or the reasons already stated,” presumably in its discussion of VARA, MASS MoCA was “entitled to judgment on this count.” 565 F.Supp.2d at 261.

The court also remarked, however, that since Büchel “would have suffered a violation of no right recognized by this statute, this messy situation simply fell outside the boundary of VARA and, a fortiori, outside the more general provisions of the Copyright Act.” Id. at 260. This statement reflects a misreading of the Copyright Act. As we have explained, the moral rights granted to specific artists under VARA are separate and independent from the economic rights guaranteed by section 106. 17 U.S.C. § 106A(a) (providing that rights of attribution and integrity are “independent of the exclusive rights provided in section 106”). Thus, the inadequacy of claims under VARA does not, on its own, signify the inadequacy of more traditional copyright claims. See Wu, supra, at 164 (observing that VARA has “acquired the attributes of a false talisman,” both because artists overly rely on it in “instances where economic rights, including traditional rights of copyright provided by Section 106 ... would more effectively protect their interests” and also because courts tend to view VARA claims as “devaluing] entitlements to economic rights pleaded in tandem with VARA claims”).

We thus turn specifically to this claim. The Museum argues that Büchel has failed to present a triable issue of fact on his claim under section 106(5) because the unfinished work was never publicly displayed. However, as we have described in the context of our VARA discussion, there is significant record evidence suggesting that the work was repeatedly and deliberately exhibited to numerous individuals.23

MASS MoCA also asserts an affirmative defense under section 109(c), which provides that “the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright *64owner, to display that copy publicly.” 17 U.S.C. § 109(c). The Museum argues that it owned the physical copy of “Training Ground,” and that section 109(c) therefore permitted it to display the unfinished work. Here again, however, the record reveals disputed issues of fact with respect to whether the Museum’s copy was “lawfully made,” as it may have been created in violation of the artist’s rights under VARA. Moreover, Büchel introduced evidence to rebut the Museum’s assertion that “the installation’s various components” all belonged to, or were purchased by, MASS MoCA. Finally, Büchel presented evidence that the Museum understood that the physical copy of the installation belonged to him.24 Accordingly, viewing the evidence in the light most favorable to Büchel, we cannot say that a reasonable jury could not conclude that the Museum violated his exclusive right to publicly display “Training Ground for Democracy.”

B. Derivative Works

The Copyright Act also grants artists the exclusive right to “prepare derivative works based upon the copyrighted work.” 17 U.S.C. § 106(2). A derivative work is defined as one “based upon one or more preexisting works,” such as a translation, musical arrangement, fictionalization, “or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. A derivative work includes any work “consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.” Id. Büchel brought two claims based on this provision, asserting that MASS MoCA created unauthorized derivative works based on the installation itself and on the work’s models and plans.

The district court ruled that, “[e]ven assuming that the stumbling, and eventually abandoned, process of collaboration during 2006 produced an original work of art subject to copyright protection, which is highly doubtful, clearly no ‘derivative’ work of art was created by MASS MoCA’s attempt (however flawed) to play its part in this process.” 565 F.Supp.2d at 261. It further rejected Büchel’s argument that, by placing tarpaulins over the unfinished installation, the Museum created a separate, unauthorized derivative work. Id.

On appeal, Büchel summarily argues that what the Museum displayed in Building 5, both with and without the yellow tarpaulins, “recast” or “transformed” the work that he had originally set out in his plans and left behind in December 2006, thus creating derivative works under the Copyright Act.25 In response, MASS MoCA again argues that its staff was following Büchel’s instructions when working on “Training Ground” in his absence, and that the Museum therefore was merely executing Büchel’s vision rather than exercising its own artistic judgment to create a new, derivative artwork.

A derivative work within the meaning of the Copyright Act “consists of a contribu*65tion of original material to a pre-existing work so as to recast, transform or adapt the pre-existing work,” and the variation from the original must be “sufficient to render the derivative work distinguishable from its prior work in any meaningful manner.” Nimmer, supra, § 3.03[A]; see also Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513, 520-21 (7th Cir.2009); Woods v. Bourne Co., 60 F.3d 978, 990 (2d Cir.1995). As we have held, Büchel’s contention that his work was modified without his permission and to his detriment gives rise to a right-of-integrity claim under VARA. Every modification of a work of art does not, however, result in the creation of a derivative work.

In Büchel’s 52-page opening brief, there is one paragraph that purports to analyze the derivative work claim, and that paragraph itself is largely descriptive rather than analytical. Büehel cites no cases and does not explain how the modified “Training Ground” was sufficiently original and distinctive within the meaning of the Copyright Act to qualify as a derivative work. His reply brief adds another paragraph, citing cases, but he again asserts in summary fashion that the modifications resulted in a derivative work. He states that the degree of creativity needed for a derivative work is minimal, but does not explain how the Museum’s alterations create a new work that, as a whole, meets the Copyright Act’s originality requirement. The law applicable to derivative work claims, particularly as it intersects with VARA’s protection for works of visual art, is complex. See, e.g., Lee v. A.R.T. Co., 125 F.3d 580, 582-83 (7th Cir.1997); Henry Hansmann, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, 26 J. Legal Stud. 95, 114-116 (1997). Büchel’s undeveloped argument is so perfunctory that we deem the claim waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (stating that, on appeal, “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”).

V.

We summarize our holdings:

1. VARA’s protection of an artist’s moral rights extends to unfinished creations that are “works of art” within the meaning of the Copyright Act;

2. The right of integrity under VARA protects artists from distortions, mutilations or modifications of their works that are prejudicial to their reputation or hon- or, and prejudice must be shown for both injunctive relief and damages;

3. Büehel has adduced sufficient evidence to raise a genuine issue of material fact as to whether MASS MoCA violated his right of integrity on one of his three asserted bases for liability, namely, by modifying “Training Ground” over his objections in a manner that harmed his hon- or or reputation. His right-of-integrity claims based on the yellow tarpaulins and the mere display of “Training Ground” lack merit;

4. Büchel’s right-of-attribution claim is moot, as VARA provides only injunctive relief to protect the right of attribution and the installation no longer exists;

5. The record reveals a genuine issue of material fact as to whether MASS MoCA violated Büehel’s exclusive right under section 106(5) of the Copyright Act to display his work publicly;

6. Büehel fails to adequately develop his claim that MASS MoCA violated his exclusive right under section 106(2) to prepare derivative works based on “Training Ground,” and that claim is therefore waived.

*66We thus remand the case for further proceedings on Büchel’s remaining right-of-integrity claim under VARA and his public display claim under section 106 of the Copyright Act.

Affirmed in part, vacated in part, and remanded for further proceedings consistent with this decision. Each party is to bear its own costs.

*495ROBERTS, J.

This case presents for our consideration the extent of protection of trademarks and names provided by ORS 647.107, Oregon’s antidilution statute. The statute provides:

“Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark registered under ORS 647.015, or a mark valid at common law, or a trade name valid at common law, shall be a ground for injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.”

Plaintiff, Wedgwood Homes of Portland, Inc., and its wholly owned subsidiary, Wedgwood Homes, Inc., sought to enjoin defendant from using “Wedgwood” in its assumed business names, Wedgwood Downs and Wedgwood Place. At trial plaintiff attempted to prove common law unfair competition as well as dilution of its trade name pursuant to ORS 647.107. We accept the facts as found by the trial court and Court of Appeals. Plaintiff has failed to show a likelihood of consumer confusion of the identities of plaintiff and defendant.1 Its cause of action for unfair competition therefore fails. The trial court nonetheless granted an injunction finding a likelihood of injury to business reputation or dilution of the distinctive quality of plaintiffs name under the statute. The Court of Appeals affirmed. We review to determine if there was “dilution” of the “distinctive quality” of plaintiffs name. The statute does not define either term. Neither this court nor the Court of Appeals has had occasion to construe the statute. See Frostig v. Saga Enterprises, Inc., 272 Or 565, 570, 539 P2d 154 (1975); Western Bank v. Western Bancorporation, 47 Or App 191, 194 n. 2, 617 P2d 258 (1980).

“Distinctive” is a term often used in the common law of trademarks. To qualify as a trademark a symbol must be “so distinctive that it is capable of performing the function of identifying and distinguishing the goods which bear the symbol.” 1 J. McCarthy, Trademarks and Unfair *496Competition § 3:1 (1973). Marks are considered distinctive if they comprise coined words invented for the sole purpose of identifying a product2 or if they are arbitrary marks, existing words applied to a product in an unexpected and nondescriptive fashion.3 Id. §§ 11:2, 11:3. A mark may also become distinctive by acquiring a secondary meaning, that is, by taking on “a special significance to the public so that a substantial number of present or prospective patrons * * * understand the designation when used in connection with [plaintiffs] business ‘not in its primary lexicographical sense, but as referring to a particular person or association.’ 3 Restatement of Torts § 716, Comment b, p. 560 (1938).” Frostig v. Saga Enterprises, Inc., supra, 272 Or at 570. A secondary meaning is acquired “when the name and the business become synonymous in the public mind; and submerges the primary meaning of the name * * * in favor of its meaning as a word identifying that business.” Visser v. Macres, 214 Cal App 2d 249, 253, 29 Cal Rptr 367, 369 (1963).

Some marks, such as generic terms,4 are considered inherently nondistinctive in a trademark sense because by naming the product itself they are incapable of identifying the originator of the goods. McCarthy, supra §§ 3:1, 12:1.

We realize that the distinctiveness adequate to identify the origin of a product may be different from the distinctive quality deserving of protection from dilution. To this extent, the fact that a plaintiff may possess a distinctive tradename only begins our inquiry. The meaning of “distinctive quality” must take shape within the confines of the interests sought to be protected by the antidilution statute.

*497Traditionally, trademarks were the method by which the public identified a product’s source.5 In modern times, trademarks have assumed a marketing function:

“The protection of trade-marks is the law’s recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trade-mark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same — to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trade-mark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress.” Mishawaka Rubber & Woolen Manufacturing Co. v. S.S. Kresge Co., 316 US 203, 205, 62 S Ct 1022, 86 LEd 1381 (1942).

The antidilution statutes6 developed out of the growing recognition that trademarks now surpass the *498traditional identity role. “[T]he trademark functions on three different levels — as an indication of origin or ownership, as a guarantee of constancy, and as a medium of advertisement.” 3 R. Callman, The Law of Unfair Competition, Trademarks and Monopolies § 65 (3d ed 1969). A mark may possess independent protectible value to the extent that it acquires advertising and selling power.

In the context of dilution, the protectible quality of a mark has been defined as the mark’s power to evoke images of the product, that is, its favorable associational value in the minds of consumers. This attribute may be developed in a variety of ways: long use, consistent superior quality instilling consumer satisfaction, extensive advertising. Note, Dilution: Trademark Infringement or Will-O’The-Wisp? 77 Harv L Rev 520, 522 (1963/64); Recent Developments, 46 Fordham L Rev 1315, 1333-35 (1978).

In application the existence of the mark’s distinctive quality must be proven by demonstrating what the mark signifies to the consuming public, Id. at 1335. If the mark has come to signify plaintiffs product in the minds of a significant portion of consumers and if the mark evokes favorable images of plaintiff or its product it possesses the distinctive quality of advertising value — consumer recognition, association and acceptance, — and will be entitled to protection from dilution.

Plaintiff has been engaged for the past 25 years in the development, construction and marketing of single and multiple family residential real estate in eastern Washington County. Plaintiffs substantial advertising programs seek to promote the quality, styling and flair of plaintiffs residential construction. Defendant has maintained dormitory style housing for the elderly in two retirement apartment complexes in eastern Washington County since 1977.

The trial court found that after 25 years’ use plaintiff had established a secondary meaning in its name. Defendant does not dispute this conclusion but argues that the antidilution statute should be limited to marks which are coined, unique or truly famous. Relying on legislative history defendant contends that only the most distinctive marks deserve the enhanced protection afforded by ORS *499647.107, and that because plaintiffs name is neither coined, unique nor nationally famous the statute should not be invoked on plaintiffs behalf.

We reject defendant’s argument that the protection of the antidilution statute should apply to coined and unique7 words alone. As we have noted, marks may become distinctive in three ways: by use of coined words, by use of arbitrary words, or by acquisition of secondary meaning.

In light of the nature of the distinctive quality we have defined there is no reason to assume, as defendant’s argument implies, that only coined marks possess advertising value. When first coined a mark will likely have no commercial value at all.8 Distinctive quality develops over time as consumer recognition and association is instilled. Moreover, defendant cannot dispute that a mark which has become distinctive through the acquisition of secondary meaning could be entitled to protection from dilution. Among examples of marks covered by the statute is Tiffany, a jewelry trademark, which acquired its distinctiveness through secondary meaning. Tiffany & Co. v. Boston Club, Inc., 231 F Supp 836 (D Mass 1964).9 It is our opinion that protection may be extended regardless of the manner by which a trademark becomes distinctive. See Ferrara v. Scharf, 466 F Supp 125 (SD NY 1979); Great *500 Scott Food Market Inc. v. Sunderland Wonder Inc., 348 Mass 320, 324, 203 NE2d 376, 379 (1965); Skil Corporation v. Barnet, 337 Mass 485, 491, 150 NE2d 551, 555 (1958).

Likewise, we reject defendant’s suggestion that the statute be limited to nationally famous marks. We see no reason why marks of national renown should enjoy protection while local marks should not. A small local firm may expend efforts and money proportionately as great as those of a large firm in order to establish its mark’s distinctive quality. In both situations the interest to be protected and the damage to be prevented are the same. In summary, it is not the manner by which distinctiveness is acquired nor the span of a mark’s notoriety but rather the degree of advertising value the mark has gained which determines the applicability of ORS 647.107.

At trial plaintiff demonstrated, by means of survey evidence, a high association between the words “Wedgwood” and “Homes” in the minds of consumers. Plaintiff has established that its name, Wedgwood, evokes its product, homes, in the minds of a large portion of the public where it does business. Plaintiff further showed that such an association was a positive one. The trial court observed, “Wedgwood Homes is a well recognized name in [eastern Washington County] which approaches a high degree of local fame.” We recognize that this association has commercial value to plaintiff. For purposes of the antidilution statute plaintiff has demonstrated that its name possesses distinctive quality.

We must now resolve what dilution is and whether it occurred or was likely to occur in this case.

In Pignons S.A. de Mecanique de Precision v. Polaroid Corporation, 657 F2d 482, 494-95 (1st Cir 1981), the court illustrated the three situations where dilution may arise. The term may refer to injury to the value of the mark caused by actual or potential consumer confusion. It may also be applied to injury caused by use which detracts from the reputation associated with plaintiffs mark. Finally it may encompass any diminution in the uniqueness and individuality of the mark resulting from defendant’s use of a similar mark.

*501The first definition is inapplicable because our statute recognizes an action for dilution “notwithstanding the absence of confusion as to the source of goods or services.”

An action for potential detraction from or tarnishment of the reputation associated with plaintiffs mark may be recognized in our statute as “likelihood of injury to business reputation” or it may be encompassed within the meaning of dilution. We need not address that issue here. Although plaintiff attempted to show unfavorable associations cast upon its product’s reputation by what plaintiff characterized as the inferior construction and design of defendant’s buildings, the trial court found that such unfavorable associations were not proven.10

We are left, then, with the third definition of dilution, a diminution in the uniqueness and individuality of the mark caused by another’s use of the same or similar mark. We must consider whether a form of dilution is cognizable which does not depend on the relative quality of defendant’s product or the undesirability of its association with plaintiffs product. We are persuaded that it is.

Where tradename owners have created a favorable association between their name and their product, they possess a valuable marketing tool. This aura of recognition enhances the value of plaintiffs name. Subsequent use of the name with a nonrelated product broadens the associations linking name and product in the minds of consumers of plaintiff s product and diminishes the specific association plaintiff seeks to foster. “[U] nr elated use erodes selling power by destroying the automatic identification of the *502trademark with the original product and the favorable images created by advertising.” Greiwe, Antidilution Statutes: A New Attack on Comparative Advertising, 72 Trademark Rep 178, 186 (1982). A second use may therefore be prevented by means of the antidilution statute.

We are aware of instances of judicial reluctance to apply antidilution statutes literally. Some courts refuse to issue injunctive relief because likelihood of confusion is not present, despite statutory language to the contrary. See Berlitz Schools of Languages of America v. Everest House, 619 F2d 211, 215 (2d Cir 1980); HMH Publishing Co., Inc. v. Lambert, 482 F2d 595, 599 (9th Cir 1973); Carter-Wallace, Inc. v. Procter & Gamble Company, 434 F2d 794, 803 (9th Cir 1970). Other courts have refused to apply the statute where confusion exists, President & Trustees of Colby College v. Colby College - N.H., 374 F Supp 1141, 1143 (D NH 1974), vacated on other grounds 508 F2d 804 (1st Cir 1975); Edgewater Apts. Corp. v. Edgewater Beach Mngm’t Co., 12 Ill App 3d 526, 534, 299 NE2d 548, 554 (1973), or where competition exists, Filter Dynamics Int’l, Inc. v. Astron Buttery, Inc., 19 Ill App 3d 299, 314-15, 311 NE2d 386, 398-99 (1974).11 We are persuaded, however, in light of the interest sought to be protected by the law and the very language of the statute, that ORS 647.107 protects this plaintiffs tradename.

Allied Maintenance Corporation v. Allied Mechanical Trades, Inc., 42 NY2d 538, 542, 399 NYS2d 628, 630, 369 NE2d 1162, 1164 (1977), defined dilution as “the whittling away of an established trade-mark’s selling power and value through its unauthorized use by others upon dissimilar products.” The court distinguished the rationale for the dilution statute from the common law actions of trademark infringement and unfair competition:

“The evil which the Legislature sought to remedy was not public confusion caused by similar products or services sold by competitors, but a cancer-like growth of dissimilar products or services which feeds upon the business reputation of an established distinctive trade-mark or name. * * * *503The harm that section 368-d [the New York antidilution statute] is designed to prevent is the gradual whittling away of a firm’s distinctive trade-mark or name.” 42 NY2d at 544, 399 NYS2d at 632, 369 NE2d at 1165-66.

In R. G. Barry Corp. v. Mushroom Makers, Inc., 108 Misc 2d 113, 436 NYS2d 927, 931, aff’d 85 AD2d 544, 444 NYS2d 922 (1981), the court in denying defendant’s summary judgment motion in opposition to plaintiffs antidilution claim observed:

“Justice Felix Frankfurter termed the result of association of a name with a product through use and advertising ‘commercial magnetism.’ Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 US 203, 205, 62 S Ct 1022, 1024, 86 LED 1381. The anti-dilution statute was designed to prevent poaching on that commercial value of a distinctive trademark.”

In Augusta National, Inc. v. Northwestern Mutual Life Ins. Co., 193 USPQ 210 (SD Ga 1976), the court explained how dilution would occur if defendant were permitted to use “Masters” in its golf tournament “Ladies Masters at Moss Creek Plantation.” “If the suspect name is used there is reasonable certainty that the value of plaintiffs mark will be eroded; a little now, more later, until the ‘magic’ of the Masters [Golf Tournament] will be mortally dissipated if not completely dispelled.” 193 USPQ at 222.

We hold that where a tradename possesses the distinctive quality of favorable associational value a second use may be enjoined under the statute whenever this is proven to be necessary in order to prevent the diminution of plaintiffs name as an advertising tool among consumers of plaintiffs product. In the case before us plaintiff has established that its name possesses the distinctive quality of positive associational value with its product. To a significant percentage of the consuming public of eastern Washington County, Wedgwood connotes homes. Defendant’s use of the name in connection with retirement apartments expands the associations consumers are likely to connect with the name and thereby reduces the name’s effectiveness in identifying and advertising plaintiffs product. On these facts plaintiff has adequately demonstrated dilution of the distinctive quality of its name.

*504The decision of the Court of Appeals is affirmed.12

KEARSE, Circuit Judge:

Plaintiff Federal Express Corporation (“Federal Express”) appeals from an order of the United States District Court for the Northern District of New York, Rosemary S. Pooler, Circuit Judge, sitting by designation, denying its motion for a preliminary injunction against defendants Federal Espresso, Inc., and three individuals doing business under the name “Federal Espres*170so” (collectively “Federal Espresso”) for, inter alia, trademark infringement in violation of §§ 32 and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114, 1125(a) (1994), and trademark dilution in violation of New York Gen. Bus. Law § 360-i (McKinney Supp.1999) (formerly § 368-d), and § 43(c) of the Lanham Act, as amended by the Federal Trademark Dilution Act of 1995, 15 U.S.C. § 1125(c) (Supp. Ill 1997). The district court denied the motion on the ground that Federal Express failed to show that in the absence of such an injunction it would likely suffer irreparable harm. Federal Express challenges this finding on appeal and contends that it presented evidence sufficient to warrant preliminary injunctive relief. For the reasons that follow, we affirm.

I. BACKGROUND

The facts, largely as set forth in the district court’s opinion, are substantially undisputed. Federal Express, incorporated in 1972, invented the overnight shipping business. It has used the name “Federal Express” since 1973. In 1984, it also registered the mark “FedEx”; and in 1994 it introduced a new corporate logo that included both names. Federal Express currently has 140,000 employees, ships 2.9 million packages per day, and has annual revenues of more than $11 billion.

Federal Express provides service in at least 210 countries and has registrations of, or pending applications to register, the name “Federal Express” in some 175 countries. Federal Express spends $35,-000 to $40,000 a month to file, prosecute, and maintain its trademarks. Various stylings of the “Federal Express” mark are registered as trademarks and service marks with respect to a variety of uses, both for those integral to Federal Express’s shipping operations, such as pickup, transportation, storage, tracing, and delivery of documents, packages, and cargo, and for those that are farther removed from Federal Express’s core business, such as beach towels, beverage bottles, and clothing. Those marks that are not black-and-white use the colors orange and purple.

Defendants concede that Federal Express’s mark is distinctive, famous, and entitled to protection. (See Federal Espresso brief on appeal at 15, 17, 33.)

In March 1994, defendants Anna Dobbs (“Dobbs”) and David J. Ruston, her brother, formed a business called New York Espresso in Syracuse, New York, for the wholesale distribution of commercial espresso machines. In April 1994, Dobbs, her husband defendant John Dobbs, and Ruston decided to change the name of the business from New York Espresso to “Federal Espresso.” Ruston stated that the name was chosen in part because it was easier to recognize than “New York Espresso.” Dobbs testified that the idea of using “Federal Espresso” originated when the partners were considering opening a coffee shop in Syracuse, in a building located across the street from a federal building. She also testified that she thought “Federal Espresso” would be an easy name to remember because of its similarity to the name “Federal Express,” which she knew to be a well-known, registered trademark.

Accordingly, in April 1994, the Dobbses and Ruston filed an application to do business as Federal Espresso; in July 1995, they formed the defendant corporation with that name. The coffee shop envisioned for the building across from the federal building did not materialize. However, in November 1995, Dobbs opened a coffee shop, called “Federal Espresso,” at a different Syracuse location (the “Pearl Street” shop). The sign over the entrance displayed the name “FEDERAL ESPRESSO” in bright yellow capitals on a dark blue background. Dobbs stated that she chose typeface and colors that were different from the Federal Express typeface and colors in order to avoid confusion. The company fashioned a circular logo consisting of a stylized lion’s head inside of three rings: an outer ring formed by repe*171titions of the letters “OWTU,” a middle ring depicting cups poised to catch falling coffee beans, and an inner ring reading “FEDERAL ESPRESSO YOUR LOCAL ROASTER.” The logo was used in various color combinations for various purposes. For example, a combination of yellow, green, navy blue, brown and white were used on a sign in the shop; silver and purple were used on coffee bags; and beige and purple were used on frequent-customer discount cards.

In 1996, defendants applied to the Patent and Trademark Office (“PTO”) for registration of “Federal Espresso” as a service mark. Federal Express formally opposed the application and sent defendants a cease-and-desist letter. In April 1997, Federal Express and Federal Espresso entered into a settlement agreement before the PTO Trademark Trial and Appeal Board, in which defendants withdrew their application and agreed to cease, on or before June 1, 1997, all use of “Federal Espresso.” Federal Express waived its rights to seek monetary damages from defendants unless defendants subsequently breached the agreement.

In June 1997, defendants changed the name of their store to “Ex Federal Espresso.” They bought yellow letters “E” and “X” and placed them at a 45-degree angle to the left of “Federal Espresso” on signs at the Pearl Street store. Dobbs testified that defendants chose that alteration because it would be inexpensive. Defendants retained supplies bearing the name “Federal Espresso,” but they handwrote “EX” on most of them before using them. Some items were used without the addition of “EX”; some store signs still read “Federal Espresso” in November 1997; and the corporation’s name was not changed until December 1997.

Defendants opened a second store on Water Street in Syracuse in August 1997. They have stated that they would like eventually to open additional retail operations, including in cities other than Syracuse, such as New York City.

Having learned that defendants continued after June 1, 1997, to use the mark “Federal Espresso” and were using “Ex Federal Espresso,” Federal Express commenced the present action in August 1997. It principally asserted claims of service mark infringement, trademark infringement, and unfair competition under 15 U.S.C. §§ 1114, 1125(a) and state law, and claims of dilution of the distinctive quality of its famous mark under 15 U.S.C. § 1125(c) and New York Gen. Bus. Law § 360 — Z; and it moved for a preliminary injunction.

Following limited discovery and an evi-dentiary hearing, the district court denied the motion in a Memorandum Decision and Order dated September 30,1998 (“Order”), reported at 1998 WL 690903 (N.D.N.Y. Sept.30, 1998). The court stated that if a plaintiff establishes that it is likely to prevail on a claim of infringement or dilution, irreparable harm is to be presumed. It found that Federal Express had not produced any independent evidence of likely irreparable harm, and hence a finding of such harm hinged on its likelihood of success on those claims. The court concluded that Federal Express was not likely to succeed on either type of claim.

As to the infringement claims, the court analyzed the evidence before it in light of the eight factors set forth in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.) (“Polaroid”), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961), in order to determine whether there was a likelihood of consumer confusion. Those factors are: *172 Gruner + Jahr USA Publishing v. Meredith Corp., 991 F.2d 1072, 1077 (2d Cir. 1993); see, e.g., Arrow Fastener Co. v. Stanley Works, 59 F.3d 384, 391 (2d Cir. 1995).

*1711) the strength of the plaintiffs mark; 2) the similarity of plaintiffs and defendant’s marks; 3) the competitive proximity of the products; 4) the likelihood that plaintiff will “bridge the gap” and offer a product like defendant’s; 5) actual confusion between products; 6) good faith on the defendant’s part; 7) the quality of defendant’s product; and 8) the sophistication of buyers.

*172The court concluded that only the first factor, the strength of the Federal Express mark, favored Federal Express. As to the second factor, the court found that

although the words FEDERAL ESPRESSO and FEDERAL EXPRESS are somewhat similar in content and sound, those similarities are far outweighed by the dissimilarities evident in the parties’ use of the marks. The words are entirely different in meaning, they are different in pronunciation, and they appear different in use. The marks appear in different typefaces and colors, and as part of distinctly different logos. In addition, defendants’ use of their mark is always accompanied by other indicia of origin, such as a logo, pictures of coffee cups, or words like “coffee,” that prevent any confusion as to the source of their products. Because the marks are not sufficiently similar to cause confusion, this factor favors defendants.

1998 WL 690903, at *15. As to Polaroid factors three through eight, the court found that there was little similarity between the overnight shipping business and the sale of coffee and espresso machines, no intent by Federal Express to enter the coffee business, no evidence that defendants’ coffee or machines were of inferior quality, no actual confusion between products, and no apparent lack of sophistication on the part of consumers such as would cause confusion in buying, see id. at *15-18; and it found insufficient evidence that defendants chose the Federal Espresso name in bad faith, see id. at *17 (“this factor is neutral”).

Balancing the Polaroid factors, the court concluded that because the only factor in Federal Express’s favor was the strength of its mark, Federal Express had not demonstrated likelihood of success on any of its trademark infringement claims or its federal unfair-competition claim. See id. at *19. The court also found that Federal Express was not likely to succeed on its state-law claims of unfair competition for the same»reasons and “because there is no compelling evidence to suggest that defendants acted in bad faith or with the intention of misappropriating any good will in plaintiffs FEDERAL EXPRESS mark.” Id.

The court further found that Federal Express had not established a likelihood of success on its claims of dilution, assessed in light of six factors:

The court considers five factors when assessing dilution by blurring under Section 43(c) of the Lanham Act: “(1) similarity of the trademarks and trade dress; (2) similarity of the products; (3) sophistication of consumers; (4) renown of the senior mark and trade dress; and (5) renown of the junior mark and trade dress.” Clinique [Laboratories, Inc. v. Dep Corp., 945 F.Supp. 547, 562 (S.D.N.Y.1996) ]. Under New York General Business Law § 360 — 4 predatory intent is also a factor in the analysis. Cf. id. at 563 n. 22.

1998 WL 690903, at *20. Of these factors, the court found that only the fourth, the fame of the Federal Express mark, favored Federal Express. With respect to the first, similarity of the trademarks, the court found, given the “inherent difference between ‘Express’ and ‘Espresso,’ ” id. at *21, and “the context in which the parties use them,” id. at *20, that “the marks ‘FEDERAL EXPRESS’ and ‘FEDERAL ESPRESSO’ are not ‘very’ or ‘substantially’ similar,” id. at *21, and stated that this “ ‘dissimilarity alone could defeat [plaintiffs] blurring claim,’ ” id. (quoting Hormel Foods Corp. v. Jim Henson Productions, Inc., 73 F.3d 497, 506 (2d Cir.1996) (“Hoivnel ”)). As to the second factor, similarity of products, the court found that this factor “does not favor plaintiff’ because plaintiff and defendants “offer distinctly different products *173and services.” 1998 WL 690903, at *21. As to the third factor, the court found that Federal Express’s customers are “relatively sophisticated consumers” because they are “willing to pay a private shipper for fast delivery.” Id. Because of this sophistication, the court found that this factor favored Federal Espresso. See id. The court found that the fifth factor too favored Federal Espresso:

FEDERAL ESPRESSO is not well-known or famous, save perhaps in Syracuse, New York. The name has no inherent distinctiveness, nor has it acquired secondary meaning. FEDERAL ESPRESSO is merely a descriptive phrase for a coffee business that aspires to “sound big.” ‘Where the fame of the junior mark is non-existent, the likelihood of finding dilution by blurring is minimal.” [Ringling Bros.-Bamum & Bailey Combined Shows, Inc. v. B.E. Windows [Corp.], 937 F.Supp. 204, 213 (S.D.N.Y.1996).]

1998 WL 690903, at *21. Finally, with respect to predatory intent, the court found that

[pjlaintiff produced no evidence that defendants adopted their mark with the intent of benefitting commercially from the fame of the mark “FEDERAL EXPRESS.” Ms. Dobbs testified that she adopted the FEDERAL ESPRESSO mark after viewing a site near the Federal Building and because she wanted her business to “sound big.” The fact that defendants did not seek the assistance of counsel prior to choosing their mark raises the possibility that they were aware of a potential infringement but continued to use the name. Ms. Dobbs testified that she was familiar with the FEDERAL EXPRESS mark. However, she stated that the partners did not think their name was a problem because they did not ship packages.

No information was submitted at the preliminary injunction hearing that would support a finding of predatory intent. Thus, this factor favors defendants.

Id. at *22.

After balancing these six factors, the district court concluded that

plaintiff has not demonstrated that it will likely succeed on its dilution claims. The absence of substantial similarity of the marks in the context of the parties’ use alone is sufficient to defeat the claim. Aside from the conceded renown of plaintiffs mark, each of the remaining factors favors defendants as well.

Id.

II. DISCUSSION

In cases involving claims of trademark infringement and dilution, as in other types of cases, a party seeking a preliminary injunction must demonstrate (1) the likelihood of irreparable injury in the absence of such an injunction, and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See, e.g., Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 142 (2d Cir. 1997); Home Box Office, Inc. v. Showtime/The Movie Channel Inc., 832 F.2d 1311, 1314 (2d Cir.1987). We review the denial of a preliminary injunction for abuse of discretion. See, e.g., Carpenter Technology Corp. v. City of Bridgeport, 180 F.3d 93, 97 (2d Cir.1999); Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir.1998).

For the reasons that follow, we see no error in the district court’s conclusion that Federal Express was not entitled to a preliminary injunction on its trademark infringement claims because it did not show a likelihood of success on those claims. Further, though resolution of the merits of the dilution claims will require fresh analysis in the district court in light of our recent decision in Nabisco, Inc. v. *174 PF Brands, Inc., 191 F.3d 208 (2d Cir. 1999) (“Nabisco ”), and although we disagree with certain aspects of the district court’s findings, we see no abuse of discretion in the court’s ultimate conclusion that Federal Express did not make a sufficient showing of a need for a preliminary injunction in order to prevent irreparable harm.

A. Trademark Infringement

The Lanham Act makes it unlawful for any person, in connection with goods, services, or containers for goods, to use in commerce “any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin ... which ... is likely to cause confusion ... as to the origin, sponsorship, or approval” of the goods, services, or commercial activity. 15 U.S.C. § 1125(a)(1). The hallmark of infringement in violation of this section is likelihood of confusion. See, e.g., Estee Lauder Inc. v. The Gap, Inc., 108 F.3d 1503, 1508-09 (2d Cir.1997); Sports Authority, Inc. v. Prime Hospitality Corp., 89 F.3d 955, 960 (2d Cir.1996); Arrow Fastener Co. v. Stanley Works, 59 F.3d at 390; Gruner + Jahr USA Publishing v. Meredith Corp., 991 F.2d at 1077; Restatement (Third) of Unfair Competition § 21 comment a (1995) (“The test for infringement is whether the actor’s use of a designation as a trademark ... creates a likelihood of confusion.... ”).

The district court correctly noted that in such a case, proof of a likelihood of confusion would create a presumption of irreparable harm, and thus a plaintiff would not need to prove such harm independently. See, e.g., Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d at 142; Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d 70, 73 (2d Cir.1988); Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir.1971). By the same token, however, if the plaintiff does not show likelihood of success on the merits, it cannot obtain a preliminary injunction without making an independent showing of likely irreparable harm.

As to Federal Express’s claims of trademark infringement, we have no difficulty with the district court’s ruling that Federal Express did not show likelihood of confusion and hence did not show that it was likely to succeed on the merits of those claims. The district court properly applied the Polaroid factors in reaching that conclusion, and we see no clear error in its findings as to those factors. Accordingly, since Federal Express did not make any independent showing of likelihood of irreparable harm, the trademark infringement claims did not warrant the granting of a preliminary injunction.

For the same reasons, we see no error in the district court’s conclusion that Federal Express had not shown a likelihood of success on its claims for unfair competition.

B. Dilution

The question of whether Federal Express made a sufficient showing to warrant an injunction on the basis of its claims of dilution requires somewhat greater discussion. Preliminarily, we note that defendants point out that they began using the Federal Espresso name in 1994, and they argue that the Federal Trademark Dilution Act of 1995 (“FTDA”) should not be applied retroactively. Given the district court’s denial of preliminary injunctive relief against defendants, and our affirmance, we need not reach that issue on this appeal, and we leave consideration of retroactivity to the district court in the first instance.

Both federal and state laws protect the owner of a famous and distinctive trademark from “dilution” of its mark. The FTDA provides, in pertinent part, that

[t]he owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has be*175come famous and causes dilution of the distinctive quality of the mark.

15 U.S.C. § 1125(c)(1). The FTDA defines “dilution” to

mean[ ] the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of—

(1) competition between the owner of the famous mark and other parties, or

(2) likelihood of confusion, mistake, or deception.

15 U.S.C. § 1127 (emphasis added). New York law similarly provides that

[ljikelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.

N.Y. Gen. Bus. Law § 360 — ¿ (McKinney Supp.1999) (emphasis added) (formerly § 368 — d).

The type of dilution pertinent to the present case is “blurring,” a process that may occur “where the defendant uses or modifies the plaintiffs trademark to identify the defendant’s goods and services, raising the possibility that the mark will lose its ability to serve as a unique identifier of the plaintiffs product.” Hormel, 73 F.3d at 506 (quoting Deere & Co. v. MTD Products, Inc., 41 F.3d 39, 43 (2d Cir.1994) (emphases in original)). “[I]njury to the mark’s selling power need not involve any confusion as to source or sponsorship .... The legislative history of § 368-d underscores this understanding by giving examples of hypothetical violations: ‘DuPont shoes, Buick aspirin tablets, Schlitz varnish, Kodak pianos, Bulova gowns, and so forth.’ ” Hormel, 73 F.3d at 506 (quoting 1954 N.Y. Legis. Ann. 49-50).

In sum, in order to prevail on a dilution claim a plaintiff is not required to prove likelihood of confusion. Trademark dilution statutes are designed to

cover those situations where the public knows that the defendant is not connected to or sponsored by the plaintiff, but the ability of the plaintiffs mark to serve as a unique identifier of the plaintiffs goods or services is weakened because the relevant public now also associates that designation with a new and different source.... Thus, where the classic likelihood of confusion test leaves off, the dilution theory begins.

Sports Authority, Inc. v. Prime Hospitality Corp., 89 F.3d at 965-66 (discussing New York law) (internal quotation marks and brackets omitted) (emphasis added); see Nabisco, 191 F.3d at 219 (“Consumer confusion — the nub of an action for infringement — 'is, of course, unnecessary to show the actionable dilution of a famous mark.” (discussing FTDA and New York law)).

Nabisco, decided subsequent to the denial of the preliminary injunction in this case, involved a junior user’s request for a declaratory judgment that its new “goldfish-shaped, orange-colored, cheddar-flavored, bite-sized crackers,” 191 F.3d at 219, would not dilute the mark of the defendant Pepperidge Farm, which continuously for several decades had marketed a cracker of “essentially the same color, shape, size, and taste,” id. at 218. Pepper-idge Farm counterclaimed for, inter alia, dilution. The district judge found that Pepperidge Farm was likely to succeed on its dilution claims, and she granted a preliminary injunction requiring Nabisco to recall and cease distributing its goldfish crackers. We affirmed, although our analysis differed from that of the district court.

The district court had found likelihood of success by Pepperidge Farm on its claims for dilution, under both federal and state law, by applying the six-factor test for state-law dilution claims advocated by the *176concurring opinion in Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026 (2d Cir.1989) (‘Mead Data’’), see id. at 1032-40 (concurring opinion of Sweet, D.J.). In reviewing the preliminary injunction at issue in Nabisco, we noted that the test proposed by the Mead Data concurring opinion did not encompass all of the factors that might bear on the issue of dilution, see Nabisco, 191 F.3d at 227-28, and has not automatically been applied by this Court even with respect to claims under state law, see id. at 227 n. 8, and we stated that “[i]t is not yet entirely clear how courts should determine whether a junior use causes a senior mark to suffer dilution,” id. at 217. We concluded that it is early in the collective judicial experience with the FTDA, enacted in 1995, to attempt to fashion a definitive list of factors to be considered and that, at least initially, claims of dilution under the FTDA should be assessed on a case-by-case basis. See id. at 227. In Nabisco, we upheld the preliminary injunction after analyzing some 10 factors:

(a) The distinctiveness of the senior mark — both because it is not entitled to protection at all if it is not distinctive, and because the “degree of distinctiveness of the senior mark has a considerable bearing on the question whether a junior use will have a diluting effect.” Id. at 217 (emphasis in original).

(b) The similarity of the marks — “an obvious factor”: “The marks must be of sufficient similarity so that, in the mind of the consumer, the junior mark will conjure an association with the senior! mark, thereby] lessening] the distinctiveness of the senior mark.... (‘We hold ... that the marks must be “very” or “substantially” similar and that, absent such similarity, there can be no viable claim of dilution.’).” Id. at 218 (quoting Mead Data, 875 F.2d at 1029).

(c) The proximity of the products and likelihood of bridging the gap — a less important factor than in infringement suits, because “[t]he legislative history of the antidilution statutes shows that the legislatures were largely concerned with junior uses of famous marks on products unrelated to the senior area of commerce — as in the hypothetical cases of Buick aspirin, Schlitz varnish, or Kodak pianos. See H. Rep. 104-374, at 3, reprinted in 1995 U.S.C.C.A.N. 1029, 1030; Mead Data, 875 F.2d at 1031.” Nabisco, 191 F.3d at 218.

(d) The “close interdependent relationship among the[ three preceding] factors”: “The weaker any of the three factors may be, the stronger the others must be to make a case of dilution.” Id. at 219.

(e) “[T]he extent of overlap among consumers of the senior user’s products and the junior user’s products.” Id. at 220.

(f) The sophistication of the consumers: “Courts examining questions of infringement, as well as dilution, have looked at the sophistication of consumers as a relevant factor. See Mead Data, 875 F.2d at 1031-32; Sally Gee [Inc., v. Myra Hogan, Inc.] 699 F.2d [621] 626 [(2d Cir.1983)]; Polaroid, 287 F.2d at 495.” Nabisco, 191 F.3d at 220.

(g) Whether there is actual confusion: While “neither actual confusion nor likelihood of confusion is necessary to sustain an action for dilution, it does not follow that actual confusion cannot be highly probative of dilution. Confusion lessens distinction. When consumers confuse the junior mark with the senior, blurring has occurred.” Id. at 221.

(h) Whether the senior user’s mark is in fact descriptive of the junior use: “The stronger the adjectival association between the junior use and the junior area of commerce, the less likelihood there is that the junior’s use will dilute the strength of the senior’s mark.” Id.

(i) Whether the senior user acted with reasonable promptness in seeking to protect its mark from the alleged dilution by the junior user, or whether instead there has been a delay such that *177an injunction will harm the junior user, e.g., by causing it to lose goodwill built up in the interim. See id. at 222.

(j) Whether the senior user has been lax in the past in taking steps to protect its mark against dilution by others. See id.

We concluded, after assessing these factors, that the issuance of a preliminary injunction against Nabisco was not an abuse of discretion:

Considering the reasonable distinctiveness of the Goldfish mark, the very close proximity of the products, the degree of similarity between the two goldfish crackers, the low level of sophistication of many consumers, the occurrence of adjudication at the start of the junior use (and consequent absence of injury to the junior user’s accumulated goodwill in its mark), we conclude that Pepperidge Farm has demonstrated a high likelihood of success in proving that Nabisco’s commercial use of its goldfish shape will dilute the distinctiveness of Pepper-idge Farm’s nearly identical famous senior mark. We conclude the district court committed no error in granting a preliminary injunction.

Id. at 222.

In the present case, after analyzing the record in light of the pertinent factors, we are less inclined than the district court toward the view that Federal Express is not likely to succeed on the merits of its dilution claims — although our view does not lead us to conclude that it was an abuse of discretion to deny a preliminary injunction. Several of the above factors seem to suggest that Federal Express may win on the merits. To begin with, the fame and distinctiveness of its mark is not in dispute. Defendants concede that the mark is entitled to protection. The district court found that it is “strong,” that it had “acquired secondary meaning,” and that it “is entitled to broad protection.” 1998 WL 690903, at *10.

Federal Express regularly spends large sums of money, $35,000-$40,000 per month, to protect its marks against infringement and dilution; and in the present case it moved promptly against defendants both when it learned of their attempt to register the name “Federal Espresso” with the PTO and when it learned of their conduct following the date by which they had agreed to cease using the “Federal Espresso” name.

Further, although the district court found that “Federal Express” and “Federal Espresso” are not substantially similar names, the factfinder at trial may well find that the marks are of “sufficient similarity so that, in the mind of the consumer, the junior mark will conjure an association with the senior,” Nabisco, 191 F.3d at 218, especially in light of the testimony of Dobbs herself that she chose the name Federal Espresso, in part, precisely because it would call to mind Federal Express. We note also that the district court stated that there was no “compelling” evidence of defendants’ bad faith, 1998 WL 690903, at *19; “no evidence that defendants adopted their mark with the intent of benefitting commercially from the fame of the mark ‘FEDERAL EXPRESS,’ ” id. at *22; and “no information” in the record “that would support a finding of predatory intent,” id. While the court itself was unpersuaded that the marks were similar or that there was bad faith or predatory or freeloading intent — as was the court’s prerogative as the preliminary factfinder in connection with the preliminary injunction motion — these facts need be proven only by a preponderance of the evidence, not by compelling evidence; and we reject any suggestion that the evidence advanced thus far, including Dobbs’s testimony that she chose “Federal Espresso” in part because it would call to mind Federal Express, would not be sufficient to allow the ultimate factfinder to find in favor of Federal Express on those issues.

Nonetheless, the fact that Federal Express may well ultimately prevail on its dilution claim, and therefore be entitled to *178a permanent injunction, does not mean that it was presumptively entitled to a preliminary injunction. Though the legislatures have concluded that the gradual erosion of a famous or distinctive mark is to be prevented, the district court, before exercising its extraordinary equity powers to grant a preliminary injunction, should consider the likely pace of such an erosion pending adjudication of the merits. Some likely successful dilution claims will warrant such preliminary relief, while others will not. In Nabisco, for example, the parties’ products' — snack crackers — were virtually identical in size, shape, color, and taste, making consumer confusion likely; further, the junior user, Nabisco, was a giant company with nationwide distribution chains, ready outlets for its products in competition with Pepperidge Farm, and proven marketing expertise. In the absence of a preliminary injunction, the rate of dilution was likely to be rapid. Here, in contrast, the principal products — coffee and overnight delivery service — are dissimilar; there would seem to be little likelihood of confusion; and while Federal Express is a vast organization, operating in 210 countries, employing 140,000 persons, and grossing more than $11 billion annually, defendants are three individuals with two stores in Syracuse. Although Federal Express need not prove actual or likely confusion in order to prevail on the merits of a dilution claim, the absence of those factors is relevant to the court’s determination of whether an injunction is needed before the merits are decided. The court was entitled to conclude, given these facts and the tiny extent of the overlap among customers of Federal Express and Federal Espresso, that dilution was not imminent and that a preliminary injunction was not needed.

We also note that, although there apparently was no delay by Federal Express in bringing the present action, this Court may take into account whether or not a plaintiff has been assiduous in pursuing the litigation once started. At the oral argument of this appeal, which took place nearly a year after the district court denied the preliminary injunction motion, Federal Express informed us that nothing had been done in the district court to speed the proceedings toward an ultimate resolution of the merits. The seeming lack of urgency on the part of a plaintiff who has been denied interim relief tends to confirm the view that irreparable harm was not imminent.

The record does not indicate whether defendants’ avowed aspirations to open additional local stores or to expand beyond Syracuse are likely to be realized; and we do not suggest that if growth occurs Federal Express will not be justified in renewing its request for preliminary injunctive relief. On the present record, however, we conclude that the denial of immediate relief was not an abuse of discretion.

CONCLUSION

Having considered all of Federal Express’s contentions on this appeal and having found in them no merit except as indicated above, we see no basis for reversal. The order of the district court denying a preliminary injunction is affirmed.

OPINION

EHRLICH, Judge.

¶ 1 This appeal arises out of the denial of a permanent injunction against a company’s former employee from misappropriating trade secrets. We agree with Enterprise Leasing Company of Phoenix (“Enterprise”) that the trial court erred in finding that the Enterprise financial records and other documents at issue were no longer trade secrets, if they had been, and, thus, that they are not entitled to protection from disclosure by Rich Ehmke, Enterprise’s former employee. We conclude instead that the documents constitute proprietary and confidential information and should be afforded trade-secret protection. As such, Ehmke must be enjoined from the disclosure and use of these documents. We therefore reverse the trial court’s denial of a permanent injunction, and we remand the ease for entry of appropriate relief.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Ehmke worked for Enterprise in Mari-copa County from January 22, 1996, until he was terminated eight months later. As a senior-level manager, Ehmke had access to substantial and proprietary confidential corporate business and financial information concerning Enterprise’s market strategy, training methods, and internal financial and operations data. Given his exposure to such information, Ehmke’s employment agreement contained a nondisclosure provision, as well as a covenant not to compete. The agreement stated in relevant part that Ehmke:

will not at any time ... take, disclose, misappropriate or misuse any marketing plans, client list, name, file, book, record, or account or other information or confidential data used at or in any of the businesses managed or owned by [Enterprise]. [He] agrees that any ... trade secrets developed by [him] during the course of [his] employment ... become the exclusive property of [Enterprise].

¶3 Nonetheless, upon Ehmke’s termination, Enterprise discovered that he had *147absconded with 45 confidential documents comprising Enterprise’s strategic plans, programs, methods and approaches. According to Thomas McKinley, Vice President and General Manager of Enterprise, 35 of these documents contained proprietary and confidential information which, if disclosed, would be advantageous to competitors.1 Enterprise demanded that Ehmke return these documents immediately. Instead, Ehmke only returned photocopies of the documents, claiming that he had destroyed the originals.2

¶4 Shortly thereafter, Ehmke formed a rental-car consulting firm in Phoenix. In this manner, he blatantly competed with Enterprise, indeed soliciting Enterprise customers and employees with the intent to recruit them for his new business.

¶ 5 On December 17, 1996, the trial court granted Enterprise’s motion for a temporary restraining order against Ehmke, prohibiting him from soliciting Enterprise customers and employees, divulging trade secrets and otherwise engaging in direct competition with Enterprise.

¶ 6 Not for a year did the trial court conduct a preliminary injunction hearing. Then it found that, not only had Ehmke enjoyed access to confidential business and financial information, but that he had later successfully used this information to compete against Enterprise in Maricopa County.3 On April 2,1997, the court granted a preliminary injunction to bar Ehmke from continuing and future breaches of his employment agreement.

¶ 7 In July 1997, undeterred by the preliminary injunction, Ehmke became Vice President of the Western United States for Premier Car Rental (“Premier”), a subsidiary of Budget Rent-A-Car (“Budget”) and a direct competitor of Enterprise. In this position, he supervised Premier’s Arizona branch offices, including those in the . Phoenix area. When it became aware of Ehmke’s position, Enterprise subpoenaed those of its documents Ehmke had disclosed to Premier.

¶8 In February 1998, Enterprise sought a permanent injunction against Ehmke. During the trial, Ehmke admitted that he knowingly had contravened the preliminary injunction by accepting employment with Premier and disclosing to it confidential documents.4 He also conceded that he had instituted procedures similar to those at Enterprise, and he further acknowledged that he had prepared and distributed documents similar to ones he had drafted at Enterprise. Ehmke claimed, however, that these documents did not qualify as protectable trade secrets because they were common knowledge and not kept secret by Enterprise. Enterprise countered that the documents did indeed contain trade secrets and other confidential material about its operations and referral sources. McKinley related that, aside from some changes in graphic art, Ehmke’s documents bore a strong resemblance to Enterprise’s materials to the extent that they were not identical.

¶ 9 The trial court concluded simply “that the [Enterprise] forms do not constitute a *148trade secret” and denied the permanent injunction. It subsequently denied Enterprise’s motion for reconsideration and entered judgment in favor of Ehmke.

¶ 10 The dispositive issue on appeal is whether the Enterprise documents are trade secrets and thus entitled to protection according to the nondisclosure provision in the employment agreement. Two sets of documents are in question: The first concerns Enterprise’s internal financial information. The second, the Enterprise Rent-a-Car Customer Service Worksheet (“Worksheet”), encompasses general business principles involved in the operation of a successful car-rental branch office.5

DISCUSSION

¶ 11 While we are bound by the trial court’s findings of fact unless they are clearly erroneous, Lee Dev. Co. v. Papp, 166 Ariz. 471, 475, 803 P.2d 464, 468 (App.1990), we review questions of law de novo. Scottsdale Princess Partnership v. Maricopa County, 185 Ariz. 368, 372, 916 P.2d 1084, 1088 (App.1995). Thus, we are not constrained by the legal conclusions from facts found or inferred in the judgment of the trial court nor by findings of the trial court in questions of law or mixed questions of law and fact. Huskie v. Ames Bros. Motor & Supply Co., 139 Ariz. 396, 401, 678 P.2d 977, 982 (App.1984).

¶ 12 This case presents questions involving the interpretation and application of the trade-secret statute. Trade-secret law is traditionally within the realm of state law. See Aronson v. Quick Point Pencil Co., 440 U.S. 257, 265-66, 99 S.Ct. 1096, 59 L.Ed.2d 296 (1979). Like the majority of states, Arizona has adopted the Uniform Trade Secrets Act (“UTSA”), which codifies the basic principles of common-law trade-secret protection, to govern the resolution of trade-secret issues. Unif. Trade Secrets Act §§ 1-11 (1985), reprinted in Paul Goldstein et al., Agreements on Unfair Competition, Trademark, Copyright and Patent 16 (1994). In addition, Arizona also recognizes the Restatement of Torts in the absence of controlling authority. See Chanay v. Chittenden, 115 Ariz. 32, 38-39, 563 P.2d 287, 293-94 (1977); Wright v. Palmer, 11 Ariz.App. 292, 294, 464 P.2d 363, 365 (1970).

¶ 13 Trade-secret law is unusual to the extent that it provides protection to the owner of a trade secret, but only while the information and knowledge remains a secret. See Ruth E. Leistensnider, Comment, Trade Secret Misappropriation: What is the Proper Length of an Injunction After Public Disclosure?, 51 Albany L.Rev. 271, 272 (1987). The threshold determination whether to pro- ■ tect information as a trade secret therefore depends upon the nature of the information and the circumstances surrounding its secrecy and the maintenance thereof. B.C. Ziegler and Co. v. Ehren, 141 Wis.2d 19, 414 N.W.2d 48 (1987).

¶ 14 By definition, a trade secret is not simply information as to single or ephemeral business events. See Roger M. Milgrim, Milgrim on Trade Secrets § 1.01[1] 1-18 (1999). Rather, a trade secret may consist of a compilation of information that is continuously used or has the potential to be used in one’s business and that gives one an opportunity to obtain an advantage over competitors who do not know of or use it. See Ariz.Rev. Stat. Ann. (“A.R.S”) § 44-401(4)(a); Restatement of Torts § 757 cmt. b (1939). The Arizona Trade Secrets Act defines “trade secret” as follows:

(4) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique or process, that both:

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons *149who can obtain economic value from its disclosure or use.

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

A.R.S. § 44-401. This rather expansive definition emphasizes the secrecy of the alleged trade secret, as well as the competitive advantage afforded by it. See Bruce T. Atkins, Trading Secrets in the Information Age: Can Trade Secret Law Survive the Internet ?, 1996 U. III. L.Rev. 1151, 1156; Avtec Systems, Inc. v. Peiffer, 21 F.3d 568, 575 (4th Cir.1994).6

¶ 15 Because the hallmark of a trade secret obviously is its secrecy, not only must the subject-matter of the trade secret be secret, it must be of such a nature that it would not occur to persons in the trade or business. Wright, 11 Ariz.App. at 295, 464 P.2d at 366; see A.R.S. § 44-401(4)(a). Accordingly, matters that are public knowledge are not safeguarded as trade secrets. See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 475, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974); Metallurgical Industries Inc. v. Fourtek, Inc., 790 F.2d 1195, 1199 (5th Cir.1986); Zoecon Industries v. American Stockman Tag Co., 713 F.2d 1174, 1179 (5th Cir.1983). Information is considered public knowledge if it is available in trade journals, reference books or published materials, or if it is known to principal trade persons who can obtain an economic benefit from the information and are aware that the information is not a trade secret. Unif. Trade Secrets Act § 1 cmt. (1985).

¶ 16 In particular, when a process or idea is so common or widely known that it lacks all novelty, uniqueness and originality, it necessarily lacks the element of privacy required to make it legally cognizable as a trade secret. See Cockerham v. Kerr-McGee Chemical Corp., 23 F.3d 101, 105 (5th Cir.1994), citing Cataphote Corp. v. Hudson, 444 F.2d 1313, 1315 (5th Cir.1971). Although the subject-matter of a trade secret need not rise to the level of novelty to the degree that it does in patent law, the information must be sufficiently novel such that it is not readily ascertainable to the competitors in an industry. See Kewanee Oil Co., 416 U.S. at 476, 94 S.Ct. 1879; A.R.S. § 44-401(4)(a). Indeed, to allow the protection of material in the public domain would contradict the very purpose of trade-secret law, which is to protect valuable confidential information from discovery. See Kewanee Oil Co., 416 U.S. at 481-84, 94 S.Ct. 1879; Buffets, Inc. v. Klinke, 73 F.3d 965, 968 (9th Cir.1996).

¶ 17 Although matters of general knowledge cannot be appropriated as secret, a trade secret may consist of a combination of elements even though each individual component may be a matter of common knowledge. See Kewanee Oil Co., 416 U.S. at 481-84, 94 S.Ct. 1879; Rivendell Forest Products, Ltd. v. Georgia-Pacific Corp., 28 F.3d 1042, 1045 (10th Cir.1994). Specifically, a trade secret may include a grouping in which the components are in the public domain but there has been accomplished an effective, successful and valuable integration of those public elements such that the owner derives a competitive advantage from it. See Rivendell Forest Products, 28 F.3d at 1046. Thus, a compilation of general concepts may amount to a trade secret, and the analysis therefore depends on whether the end-product qualifies as a trade secret. See Buffets, 73 F.3d at 968.

¶ 18 Enterprise’s financial documents include sensitive internal economic records concerning its branch offices in Maricopa County, such as profit and loss figures, *150break-even points and sales revenue.7 Although Ehmke baldly asserts that this information is so stale as to preclude protection, trade-secret status may continue indefinitely so long as there is no public disclosure. See Kewanee Oil Co., 416 U.S. at 476, 94 S.Ct. 1879; Chicago Lock Co. v. Fanberg, 676 F.2d 400, 404 (9th Cir.1982); Amex Dist. Co. v. Mascari, 150 Ariz. 510, 517, 724 P.2d 596, 603 (App.1986); Robert P. Merges et al., Intellectual Property in the New technological Age 59 (1997). Thus, secrecy may still attach to proprietary financial information.

¶ 19 Additionally, a document such as the Worksheet reflects a substantial market-research investment by Enterprise delineating several factors helpful to managing a successful branch office. As said above, a compilation need only be a slight advance over common knowledge to receive protection. Compare Henry Hope X-Ray Products, Inc. v. Marron Carrel, Inc., 674 F.2d 1336, 1340 (9th Cir.1982), with Buffets, 73 F.3d at 968. Taken out of context, the information in the Worksheet may, as Ehmke maintains, appear to consist only of the general knowledge of those persons in the car-rental industry. However, the Worksheet as a whole is an original product containing an arrangement of factors that provides Enterprise with a competitive advantage. See Buffets, 73 F.3d at 968. Because the compilation of customer-service factors represents originality in managing a car-rental business, the Worksheet is unique to Enterprise.

¶20 We recognize that not every commercial secret qualifies as a trade secret. Only those secrets affording a demonstrable competitive advantage may properly be considered a trade secret. Wright, 11 Ariz.App. at 295-96, 464 P.2d at 366-67. Value will be inferred if the owner can show that the information confers upon it an economic advantage over others in the industry. Rivendell Forest Products, 28 F.3d at 1046.

¶ 21 These documents provide economic value for Enterprise and would allow a competitor to gain an advantage if the documents were discovered in the marketplace. For instance, a competitor would have a detailed account of Enterprise’s financial data that might be used to affect the placement of branch offices and/or pricing and sales decisions. The Worksheet could provide a competitor with a blueprint of the Enterprise customer-service principles.

¶22 Just as the trade secret’s owner is obliged to establish that the matter is secret, it must also show that it exercised reasonable care to safeguard the secret. A.R.S. § 44-401(4)(b). Indeed, the most important factor in gaining trade-secret protection is demonstrating that the owner has taken such precautions as are reasonable under the circumstances to preserve the secrecy of the information. Michael A. Epstein & Stuart D. Levi, Protecting Trade Secret Information, 43 Bus. Law. 887, 895 (1988); see A.R.S. § 44-401(4)(b). As many courts have explained, a business that takes only scant precautions in guarding the confidentiality of the secret will not receive protection. Epstein & Levi, Protecting Trade Secret Information, 43 Bus. Law at 895.

¶ 23 The secrecy need not, however, be absolute. Henry Hope X-Ray Products, 674 F.2d at 1340. Rather, when evaluating the level of secrecy required, the owner need only be able to show that it made reasonable efforts to maintain the secrecy of the information such as to ensure that it would be difficult for others to discover the information without using improper means. Id.; K-2 Ski Co. v. Head Ski Co., 506 F.2d 471, 474 (9th Cir.1974). Reasonable efforts do not require extreme and unduly expensive procedures to be taken to protect trade secrets against industrial espionage, E.I. duPont de Nemours & Co. v. Christopher, 431 F.2d 1012, 1016 (5th Cir.1970), cert. denied, 400 U.S. 1024, 91 S.Ct. 581, 27 L.Ed.2d 637 (1971), and the owner of a trade secret does not relinquish its secret by disclosure to employees on a necessary basis or by limited publication for a restricted purpose. Metallurgical Industries, 790 F.2d at 1200. To hold otherwise would greatly hinder the owner’s ability to profit from its secret. Id. Thus, while public revelation would dispel all secrecy, the owner of a secret need not remain totally silent. Id.

*151¶24 Ehmke contends that Enterprise did not keep the documents secret. However, all Enterprise need show is that it made reasonable efforts to maintain the confidentiality of the disputed information, see K-2 Ski Co., 506 F.2d at 474, and this it did. Not only did Enterprise make reasonable efforts to ensure the confidentiality of the information, such as limited disclosure to those employees in need of the information to perform their duties and general directives regarding confidentiality, but it specifically included a confidentiality provision in its employment agreement for high-level managers such as Ehmke, as well as in the employee policy handbook that all employees had to acknowledge and sign. These measures demonstrate adequate safeguards to protect the financial documents and the Worksheet.

¶25 Ehmke erroneously asserts that he merely tapped his general knowledge of the car-rental business to produce documents for Premier, and, indeed, trade-secret law does and should not prevent former employees from using their general knowledge and skill at another job. Amex Dist. Co., 150 Ariz. at 516, 724 P.2d at 602. However, the policy supporting trade-secret law is to balance this public interest in competition in the workplace with the need for commercial ethics. See Kewanee Oil Co., 416 U.S. at 481-82, 94 S.Ct. 1879; see also PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1268 (7th Cir.1995); Bryceland v. Northey, 160 Ariz. 213, 216, 772 P.2d 36, 39 (App.1989). Accordingly, a business must be afforded protection against the wrongful appropriation of confidential information by an employee, not only to encourage innovation and invention, but also to establish fair business practices. See Winston Research Corp. v. Minnesota Mining and Manuf. Co., 350 F.2d 134, 138 (9th Cir.1965); Amex Dist. Co., 150 Ariz. at 516, 724 P.2d at 602. The record does not support Ehmke’s contention that his “workproduct” was only an exercise of the general knowledge of those in the business.

¶ 26 Clearly this case does not present a situation in which one innocently discovers a secret or in good faith paid value for the secret. See Restatement of Torts § 758 cmt. a. Enterprise took adequate practical steps to protect this information from public disclosure. Relying on its general protective procedures and, specifically, the nondisclosure provision of Ehmke’s contract, Enterprise imparted this information to Ehmke for his use in the context of his employment with Enterprise. The contract obligated Ehmke to maintain the confidentiality of Enterprise’s financial information and Worksheet; it did not exclude information that Ehmke as an Enterprise employee himself contributed. There is no question that Ehmke knew and understood this limited use. Ehmke had notice of the confidentiality of the information and used improper means to appropriate, disclose and utilize Enterprise’s trade secrets in his own business endeavors.

CONCLUSION

¶27 The judgment of the trial court is reversed. The ease is remanded for further proceedings consistent with this opinion.

CONCURRING: PHILIP E. TOCI, Judge, and THOMAS C. KLEINSCHMIDT, Judge.

OPINION

WILLIAMS, Circuit Judge:

Comprehensive Technologies International, Inc. (CTI), brought this action for copyright infringement against former employees Dean Hawkes, Igor A. Filippides, Randall L. Sterba, Richard T. Hennig, and David R. Bixler (the Defendant employees). CTI also named as defendants Alvan S. Bixler and Software Artisans, Inc. (SA), a corporation formed by Alvan Bixler and several of the Defendant employees shortly after their departure from CTI. CTI contended that “Transend,” a computer program developed by the Defendants, infringed upon the copyrights CTI held in its “Claims Express” and “EDI Link” computer programs. CTI appended numerous state law causes of action, including trade secret misappropriation, breach of confidentiality, and breach of contract.1 CTI also alleged that Hawkes *733breached his covenant not to compete with CTI by performing services for SA, soliciting CTI’s customers, and hiring CTI’s former employees. After a bench trial, the district court entered judgment for the Defendants on all counts.

CTI now appeals and offers four reasons for reversal. First, CTI contends that, in granting judgment for Defendants on its copyright infringement claim, the district court failed to apply the appropriate standard for determining whether Transend is substantially similar to Claims Express and EDI Link. Second, CTI contends that under the Virginia Uniform Trade Secrets Act, Va. Code Ann. § 59.1-336 to -343 (Michie 1992), the district court erred in finding that Defendants did not misappropriate its trade secrets. Third, CTI challenges the district court’s conclusion that Hawkes’s covenant not to compete with CTI is unreasonable and hence unenforceable under Virginia law. Last, CTI charges that the district court committed reversible error by expressing “bias” against its software.

With regard to CTI’s copyright infringement and trade secret misappropriation claims, we affirm the judgment for the Defendants. We agree, however, with CTI’s contention that Hawkes’s covenant not to compete is enforceable. We therefore vacate the judgment for Hawkes on CTI’s claim for breach of contract, and remand for the district court to determine whether Hawkes has breached his covenant not to compete. We find CTI’s charge of bias to be without merit.

I.

Factual Background

CTI, a California corporation with its principal place of business in Chantilly, Virginia, is engaged in defense related services. CTI was founded in 1980 by Celestino Beltran, who at the time of trial served as CTI’s president, chief executive officer, and chairman of the board of directors. By 1988 Beltran was hoping to diversify CTI’s operations into newly emerging technologies. At that time, Beltran’s next door neighbor, Al-van Bixler, worked for the Electronic Data Interchange Association (EDIA). Electronic data interchange, or EDI, is the eomputer-to-computer transmission of business transactions in proprietary or standard formats. After discussing EDI with Alvan Bixler and conducting his own research on the subject, Beltran concluded that EDI technology presented substantial growth potential in the small business market.

With the approval of his board of directors, Beltran established a Software Products Group and designated Dean Hawkes to lead it. Hawkes was given the responsibility to design, develop, test, and market software that would enable clients to process and transmit data through EDI technology. CTI selected Igor Filippides as the Software Products Group’s Acting Vice President for Sales and gave him primary responsibility for marketing the software. Other members of the Software Products Group included Sterba, Hennig, and David Bixler, who together wrote the actual software. To boost the marketability of its products, CTI obtained an agreement from EDIA to assist CTI in the development of its software. Pursuant to that agreement, Alvan Bixler collaborated with CTI as a consultant on EDI technology.

Each of the Defendant employees except Hawkes signed CTI’s standard Confidentiality and Proprietary Information Agreement. Under the Agreement, each employee agreed not to disclose or use, directly or indirectly, during his employment and for three years thereafter any confidential, proprietary, or software-related information belonging to CTI. The Agreement specifically identified the Claims Express and EDI Link projects as confidential. Although Hawkes did not sign a Confidentiality and Proprietary Information Agreement, he did sign an Employment Agreement that contained similar but more restrictive provisions. In addition to promising confidentiality, Hawkes agreed that during the term of his employment he would not compete with CTI, solicit CTI’s *734customers, or employ CTI’s current or former employees.

The Software Products Group undertook to develop two software packages for personal computers. The first, Claims Express, is an electronic medical billing system. Claims Express transmits information that conforms to two specific insurance claims forms, the “HFCA 1500” and the “UB 82.” The program has been successfully marketed. CTI’s second software package, EDI Link, is not specific to the health care industry. It is designed to permit users to create generic forms, enter data on the forms electronically, test that data for errors, and store both the forms and the data on a computer. Although CTI expended substantial effort on EDI Link, at the time of trial the program had not been completed and had never been sold or marketed. Trial testimony indicated that between 35 and 85 percent of the program had been completed.

In February 1991, all of the Defendant employees left CTI. Hawkes executed a formal Termination Agreement with CTI. In that Agreement, Hawkes agreed to rescind his Employment Agreement in return for $50,000 and more than $20,000 worth of equipment. Hawkes also agreed that he would not disclose or use CTI’s confidential information, and that, for a period of one year following his departure, he would not (1) compete with CTI, (2) solicit CTI’s customers, or (3) hire CTI’s employees.

In April 1991, the Defendants incorporated Software Artisans, Inc., located in Fairfax, Virginia. By July 1991, SA had developed and begun to market its own program called Transend. According to its User’s Manual, Transend creates a “paperless office environment” by enabling its users to process business forms on a computer. (J.A. at 1592.) Transend is similar to Claims Express and EDI Link in that it is designed to prepare forms for transmission by EDI. Transend permits the user to input data, check the data for errors, and prepare the data for transmission by EDI.

II.

Copyright Infringement

The district court concluded that Defendants did not infringe upon CTI’s copyrights in Claims Express and EDI Link. See 17 U.S.C.A. § 501(a) (West Supp.1993) (defining copyright infringement). The court found that Transend was not a literal copy of either Claims Express or EDI Link, see Computer Assocs. Int’l, Inc. v. Altai Inc., 982 F.2d 693, 701 (2d Cir.1992) (literal copying can prove infringement), nor was it substantially similar to either program, see Dawson v. Hinshaw Music, Inc., 905 F.2d 731, 782 (4th Cir.1990) (access and substantial similarity can. prove infringement), cert. denied, 498 U.S. 981, 111 S.Ct. 511, 112 L.Ed.2d 523 (1990); Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1232 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987). The district court acknowledged that under Whelan CTI could prove infringement by showing substantial similarities between the structure, sequence, and organization of the programs, but found that CTI had not met its burden of proof on that issue. The court accepted CTI’s evidence that the programs shared some characteristics but nonetheless found that the similarities were either derived from common sources available to the average programmer or were dictated by the functions of the programs. The court also found that, to the extent that- CTI may have possessed proprietary algorithms,2 Defendants had not copied any of them.

CTI contends that the district court failed to apply the correct test to determine substantial similarity and therefore erred in concluding that the structure, sequence, and organization of Transend were not substantially similar to that of Claims Express and EDI Link. We review the district court’s factual findings on substantial similarity for clear error, Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 206 (9th Cir.1988); Whelan, 797 F.2d at 1233 n. 25, and we review its conclusions of law de novo, Whelan, 797 F.2d at 1233 n. 25.

CTI points out that the district court criticized the Whelan test of substantial similari*735ty as overly simplistic,3 but never stated which alternative test should be used to evaluate substantial similarity. CTI believes that the district court should have applied the Second Circuit’s “abstraction-filtration-comparison” analysis, first announced in the Computer Associates opinion. Computer Assocs., 982 F.2d at 706-12. CTI argues that if the district court had used the Computer Associates test, it would have identified six similarities between Transend and the CTI programs:

(1) the organization of data dictionary in the data base;

(2) the establishment of form data;

(3) the use of the header file name “user-name.rec”;

(4) the unique identifiers in the sort record;

(5) the use of 41 characters for the key length to accommodate names and addresses; and

(6) some of the field names.

(CTI’s Br. at 11.) According to CTI, these similarities prove infringement.

The difficulty with CTI’s position is that it has not identified any evidence in the record indicating that these similarities were proved at trial. We will not sift through the record to piece together support for CTI’s contentions.4 See Fed.R.App.P. 28(a)(4), (e) (appropriate references to the record are required); Friedel v. City of Madison, 832 F.2d 965, 969 (7th Cir.1987) (“It is not the court’s duty on appeal to wade through the record and make arguments for either party.”); AMP, Inc. v. Fleischhacker, 823 F.2d 1199, 1203 (7th Cir.1987) (“We will not search through the record in an endeavor to locate material which the parties have failed to provide us. It is neither the role nor the obligation of an appellate court to cast about in the record for facts and argument upon which the parties may rely.” (Internal quotation marks and brackets omitted).) Because CTI has not identified any evidence demonstrating that the district court clearly erred, we affirm the district court’s finding that Transend was not substantially similar to either Claims Express or EDI Link.5

III.

Trade Secrets

The district court also found that CTI did not prove that the Defendants misappropriated a trade secret. Under Virginia law a “trade secret” is

information, including but not limited to, a formula, pattern, compilation, program, device, method, technique, or process, that:

1. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and

2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Va.Code Ann. § 59.1-336; see also Dionne v. Southeast Foam Converting & Packaging, Inc., 240 Va. 297, 397 S.E.2d 110, 113 (1990) (discussing definition of trade secret). For purposes relevant to this case, “misappropriation” means the “use of a trade secret of another without express or implied consent by a person who ... [a]t the time of ... use, knew or had reason to know that his knowledge of the trade secret was ... [ajcquired under circumstances giving rise to a duty to maintain its secrecy or limit its use.” Va. Code Ann. § 59.1-336.

In denying CTI’s claim for trade secret misappropriation, the district court found that CTI did not possess any trade secrets and that, even if CTI did possess trade secrets, the Defendants had not misap*736propriated them.6 The court found no evidence that CTI’s purported trade secrets— the organization of Claims Express and EDI Link, the database access techniques of the two programs, and the unique identifiers of the two programs — derived independent economic value from not being generally known or were not readily ascertainable by proper means. Consequently, the court concluded that CTI’s purported trade secrets failed to satisfy all of the elements necessary to prove a trade secret. The district court also concluded that the Defendants did not “copy” any trade secrets, implying that Defendants did not “use” or otherwise misappropriate them.7 (J.A. at 65.)

CTI argues that in granting judgment for Defendants on its trade secrets claim, the district court misapplied the law. Although we review the district court’s determination that a trade secret does not exist for clear error, Integrated Cash Management Servs., Inc. v. Digital Transactions, Inc., 920 F.2d 171, 174 (2d Cir.1990); Telex Corp. v. International Business Machs. Corp., 510 F.2d 894, 928 (10th Cir.), cert. dismissed, 423 U.S. 802, 96 S.Ct. 8, 46 L.Ed.2d 244 (1975); K-2 Ski Co. v. Head Ski Co., 506 F.2d 471, 477 (9th Cir.1974), we independently review the district court’s conclusions of law and the court’s application of the law to the facts, Rawl v. United States, 778 F.2d 1009, 1014 & n. 9 (4th Cir.1985), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (1986).

CTI reads the district court’s opinion as ruling as a matter of law that the organization of its database, its database access techniques, and its unique identifiers could not constitute trade secrets because each of their composite elements was in the public domain. CTI argues vociferously (and correctly) that although a trade secret cannot subsist in information in the public domain, it can subsist in a combination of such information, as long as the combination is itself secret. See Integrated Cash Management, 920 F.2d at 174; Continental Data Sys., Inc. v. Exxon Corp., 638 F.Supp. 432, 443 (E.D.Pa.1986); Q-Co Indus., Inc. v. Hoffman, 625 F.Supp. 608, 617 (S.D.N.Y.1985); Dickerman Assocs., Inc. v. Tiverton Bottled Gas Co., 594 F.Supp. 30, 35-36 (D.Mass. *7371984). According to CTI, each of its alleged trade secrets is just such a combination of publicly available information.

In making this argument, CTI misreads the district court’s opinion. The district court did not rule that unique combinations or arrangements of publicly available information cannot receive protection as trade secrets. Rather, the district court held that CTI failed to present any evidence that its database organization, its access techniques, and its identifiers were not themselves publicly available. The court specifically found that the arrangement and interaction of the functions of Claims Express and EDI Link were “common to all computer programs of this type.” (J.A. at 63.) Information that is generally known cannot qualify as a trade secret. See Va.Code Ann. § 59.1-336 (Michie 1992). Consequently, the district court did not misapply the law; it simply found insufficient evidence to support CTI’s claim. The district court correctly concluded that CTI failed to prove that the organization, database access techniques, and identifiers of CTI’s software constituted trade secrets.

Even if CTI had demonstrated that these items constituted trade secrets, CTI has not convinced us that the district court clearly erred in finding that the Defendants did not misappropriate any of CTI’s alleged trade secrets. CTI points to the short development time and the complete lack of design documentation for Transend as strong circumstantial evidence of misappropriation. Although this evidence does raise some suspicions, Defendants provided a colorable explanation for the absence of design documentation. First, Defendant’s expert, Dr. Ro-tenstreich, testified that it was not atypical for small software companies to neglect to prepare extensive design documentation. Second, Sterba testified that he and the others disliked the amount of paperwork involved in documenting their designs, that they preferred to use a “whiteboard” for their design work, and that they placed much of the information that would ordinarily appear in design documentation in the code itself. In light of this testimony, CTI’s circumstantial evidence is not enough to convince us that the district court clearly erred in finding that the Defendants did not copy (or “use”) any of CTI’s alleged trade secret information. See id. (wrongful use of a trade secret constitutes misappropriation).

We find instructive the Fifth Circuit’s decision in Plains Cotton Cooperative Ass’n v. Goodpasture Computer Service, Inc., 807 F.2d 1256, 1263 (5th Cir.), cert. denied, 484 U.S. 821, 108 S.Ct. 80, 98 L.Ed.2d 42 (1987):

[T]he trade secrets allegedly involved here are particular implementations of software functions.... [T]he misuse of these implementations can occur only through copying the particular software designs on a sufficiently specific level.... [The trade secrets] are matters of design, where the issue of misuse boils down to evidence of copying. If no copying occurred on any level, appellant cannot demonstrate that appellees misused the trade secrets they allegedly possessed.

... If appellees did not in any way “copy” any part of appellant’s protected idea or expression, then appellant cannot demonstrate trade secret misappropriation any more than it can show copyright infringement.

(Emphasis added.) As the district court noted, CTI produced insufficient evidence that Transend copied any unique designs or functions of either Claims Express or EDI Link. Without proof of copying at the functional (or ideational) level, CTI has not proved that Defendants “used” and thereby misappropriated any of its trade secret information. The district court correctly concluded that the Defendants did not misappropriate any trade secret information belonging to CTI.

In sum, we conclude that the district court did not misapply the law and that its findings of fact are not clearly erroneous. We affirm the district court’s entry of judgment for Defendants on CTI’s misappropriation claim.

IV.

Covenant Not to Compete

CTI next argues that the district court should have enforced Dean Hawkes’s *738covenant not to compete. In his Termination Agreement, Hawkes agreed that, for a period of twelve months following his departure from CTI, he would not

engage directly or indirectly in any business within the United States (financially as an investor or lender or as an employee, director, officer, partner, independent contractor, consultant or owner or in any other capacity calling for the rendition of personal services or acts of management, operation or control) which is in competition with the business of CTI. For purposes of this Agreement, the “business of CTI” shall be defined as the design, development, marketing, and sales of CLAIMS EXPRESS) and EDI LINK) type PC-based software with the same functionality and methodology....

(J.A. at 714.) Virginia has established a three-part test for assessing the reasonableness of restrictive employment covenants. Under the test, the court must ask the following questions:

“(1) Is the restraint, from the standpoint of the employer, reasonable in the sense that it is no greater than is necessary to protect the employer in some legitimate business interest?

(2) From the standpoint of the employee, is the restraint reasonable in the sense that it is not unduly harsh and oppressive in curtailing his legitimate efforts to earn a livelihood?

(3) Is the restraint reasonable from the standpoint of a sound public policy?”

Blue Ridge Anesthesia & Critical Care, Inc. v. Gidick, 239 Va. 369, 389 S.E.2d 467, 469 (1990) (citation omitted); Meissel v. Finley, 198 Va. 677, 95 S.E.2d 186, 188 (1956). If a covenant not to compete meets each of these standards of reasonableness, it must be enforced. Roanoke Eng’g Sales Co. v. Rosenbaum, 223 Va. 548, 290 S.E.2d 882, 884 (1982). As a general rule, however, the Virginia courts do not look favorably upon covenants not to compete, Grant v. Carotek, Inc., 737 F.2d 410, 411 (4th Cir.1984), and will strictly construe them against the employer, Clinch Valley Physicians, Inc. v. Garcia, 243 Va. 286, 414 S.E.2d 599, 601 (1992); Grant, 737 F.2d at 411. The employer bears the burden of demonstrating that the restraint is reasonable. Richardson v. Paxton Co., 203 Va. 790, 127 S.E.2d 113, 117 (1962).

The district court refused to enforce the covenant not to compete because it concluded that the covenant was broader than necessary to protect CTI’s legitimate business interests. First, the court held that the scope of the employment restrictions was too broad because the restrictions precluded Hawkes from working for a competitor in any capacity, even as a janitor. The court implied that CTI did not have a legitimate interest in preventing Hawkes from working for a competitor in a menial capacity. Second, the district court concluded that the geographic scope of the agreement was broader than necessary to protect CTI’s interests. The court found that CTI had marketed Claims Express only in Virginia, Nebraska, and perhaps one other state, and therefore CTI did not have a legitimate interest in restricting Hawkes’s employment throughout the United States. (J.A. at 66-67.)

We review the enforceability of the covenant not to compete de novo. Brunswick Corp. v. Jones, 784 F.2d 271, 274 n. 2 (7th Cir.1986).

CTI asserts that under the facts of this case the employment restrictions were reasonably necessary to protect its business interests.

Although the district court believed that the covenant was categorically over-broad because it precluded Hawkes from working for a competitor of CTI in any capacity, the Virginia Supreme Court has enforced similarly broad restrictions. In Roanoke Engineering, the Court enforced a three-year restriction on an employee’s right to “own, manage, operate, control, be employed by, participate in, or be associated in any manner with the ownership, management, operation or control of any business similar to the type of business conducted by” the employer. Roanoke Eng’g, 290 S.E.2d at 882 (emphasis added). In Blue Ridge, the Court upheld a three-year covenant under which the employee could not “open or be employed by or act on behalf of any competitor of Employer which renders the same or *739similar services as Employer”). Blue Ridge, 389 S.E.2d at 468 (emphasis added). The covenant in Hawkes’s agreement properly restricts him from competitive employment that would, in all likelihood, substantially interfere with CTI’s business. See Stoneman v. Wilson, 169 Va. 239, 192 S.E. 816, 819 (1938); cf. Grant, 737 F.2d at 412 (covenant which restrained more than direct competition with the employer was unreasonable); Worrie v. Boze, 191 Va. 916, 62 S.E.2d 876, 881 (1951) (appi’oving use of covenants to prevent injurious competition).

Moreover, as Vice President of CTI’s Software Products Group, Hawkes necessarily came in contact with confidential information concerning both CTI’s products and its customers. Hawkes’s access to such confidential information makes the covenant not to compete more reasonable. As the Virginia Supreme Court has noted,

[t]he fact that the employment is of such a character as to inform the employee of business methods and trade secrets which, if brought to the knowledge of a competitor, would prejudice the interests of the employer, tends to give an element of reasonableness to a contract that the employee will not engage in a similar business for a limited time after the termination of his employment, and is always regarded as a strong reason for upholding the contract.

Stoneman, 192 S.E. at 819 (internal quotations omitted); Meissel, 95 S.E.2d at 191 (possession of trade secrets and confidential information is an “important consideration” in testing the reasonableness of a restrictive covenant); cf. Community Counselling Serv., Inc. v. Reilly, 317 F.2d 239, 244 (4th Cir.1963) (even in absence of covenant not to compete, employee may not appropriate trade secrets and confidential information rightfully belonging to his former employer). Similarly, in Roanoke Engineering, an employee had access to confidential financial records, lists of customers and suppliers, and detailed knowledge of overhead factors, pricing policies, and bidding techniques. Roanoke Eng’g, 290 S.E.2d at 885. The Virginia Supreme Court held that this information enabled the employee to become a “formidable competitor” of his former employer, and concluded that a restriction barring the employee from working for competitors in any capacity was no greater than necessary to protect the employer’s legitimate business interests. Id.

Hawkes poses a similar danger to CTI’s business. As the individual primarily responsible for the design, development, marketing and sale of CTI’s software, Hawkes became intimately familiar with every aspect of CTI’s operation, and necessarily acquired information that he could use to compete with CTI in the marketplace.8 When an employee has access to confidential and trade secret information crucial to the success of the employer’s business, the employer has a strong interest in enforcing a covenant not to compete because other legal remedies often prove inadequate. It will often be difficult, if not impossible, to prove that a competing employee has misappropriated trade secret information belonging to his former employer. Eden Hannon & Co. v. Sumitomo Trust & Banking Co., 914 F.2d 556, 561 (4th Cir.1990) (applying Virginia law). On the facts of this case, we conclude that the scope of the employment restrictions is no broader than necessary to protect CTI’s legitimate business interests.

As a second ground for invalidating the covenant not to compete, the district court concluded that the geographic scope of the employment restrictions — “within the United States” — was greater than necessary to protect CTI’s business. (J.A. at 66.) The district court merely noted that CTI had marketed Claims Express in only three states and therefore did not have a national market for its product.

The district court clearly erred in concluding that CTI did not have a national market for Claims Express. See Fed.R.Civ.P. 52(a) (findings of fact are reviewed for clear error). CTI licensed Claims Express in at least ten states: California, Colorado, Connecticut, Florida, Iowa, Kansas, Maryland, Nebraska, New York, and Oregon. This list alone dem*740onstrates that CTI’s customers were dispersed throughout the country and not concentrated in any particular geographic area. CTI’s operation was neither local nor regional, but national. Other evidence of a national market for Claims Express was similarly compelling. Some of CTI’s customers were value-added resellers who had agreed to market Claims Express to their own customers. These value-added resellers were located in California (BAS Microtech), Colorado (Dakkro Corporation), Connecticut (Robert Austin), Kansas (Computing Services, Inc., and Resource & Development Services), and Nebraska (The Churchhill Group, LTD). CTI also identified for the district court specific customer prospects in Colorado, Connecticut, Georgia, Illinois, Indiana, Kansas, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Tennessee, Texas, Washington, and the District of Columbia.9 CTI presented Claims Express and EDI Link (albeit in preliminary form) at national EDIA trade shows in both 1989 and 1990. Finally, CTI presented evidence that it faced direct competition from companies located in California, Colorado, Georgia, Idaho, Illinois, Indiana, Kansas, Maryland, Michigan, Minnesota, New Jersey, Ohio, Oregon, South Carolina, Texas, Utah, and Virginia, and that it faced potential competition from companies in Arizona, California, Georgia, Maryland, North Dakota, Ohio, Oklahoma, Tennessee, and Texas. Given the breadth of the market for Claims Express, we cannot see how anything less than a nationwide prohibition could conceivably protect CTI’s business interests. Because CTI had a national market for its product, the restrictions on Hawkes’s employment throughout the United States were no greater than necessary to protect it from competition by Hawkes. See Roanoke Eng’g, 290 S.E.2d at 885 (restriction geographically coterminous with territory in which employer did business was reasonable); see also National Homes Corp. v. Lester Indus., Inc., 404 F.2d 225, 227 (4th Cir.1968) (under Virginia law, injunctive relief against former employee should be extended to entire state, even though employer had record of sales in only widely scattered sections of the state); cf. Alston Studios, Inc. v. Lloyd V. Gress & Assocs., 492 F.2d 279, 283 (4th Cir.1974) (invalidating restrictive covenant because it did not limit its applicability to appropriate “areas of possible competition” (emphasis added)). CTI fully satisfied the first test of reasonableness.

Having determined that the covenant not to compete is reasonable from CTI’s point of view, we must next determine whether the covenant is reasonable from Hawkes’s point of view, i.e., whether the curtailment on Hawkes’s ability to earn a living is unduly harsh or oppressive. Although the agreement applies throughout the United States, it restricts Hawkes from engaging in only an extremely narrow category of business. Hawkes may not render personal services to, or perform acts of management, operation, or control for, any business in competition with “the business of CTI,” which the agreement defines as “the design, development, marketing and sales of CLAIMS EXPRESSTM and EDI LINKTM type PC-based software with the same functionality and methodology.” (J.A. at 714.) The agreement therefore permits Hawkes to design, develop, market and sell any software of a type different from Claims Express or EDI Link, any software of the same type having a different functionality or methodology, or any software of the same type having the same functionality and methodology that is not designed to run on personal computers. Hawkes is also free to compete with any other branch of CTI’s business. Because Hawkes retains broad employability under the agreement, the agreement is not unduly harsh or oppressive. See Blue Ridge, 389 S.E.2d at 469.

In light of the foregoing, we conclude that the covenant not to compete is no greater than necessary to protect CTI’s business and is not unduly harsh or oppressive. Hawkes does not suggest, and we do not find, that the covenant is unreasonable from the standpoint of public policy. We therefore hold that the covenant is enforceable.

*741Because the district court found the covenant unenforceable, it did not reach the question whether Hawkes violated the covenant by participating in the development of Tran-send. Consequently, we vacate the judgment of the district court for Dean Hawkes on this issue and remand for a determination whether Hawkes has breached his agreement.

V.

Bias

Finally, CTI contends that the district court committed reversible error by expressing “bias” against CTI’s software in a footnote to its opinion.10 CTI speculates that the district court’s failure to appreciate the value of computers may have predisposed it to grant judgment against CTI. This argument clearly has no merit.

VI.

Conchision

In sum, we affirm the judgment of the district court for the Defendants on CTI’s claims for copyright infringement and trade secret misappropriation. We vacate the judgment of the district court for Dean Hawkes on CTI’s claim for breach of the covenant not to compete and remand for further proceedings.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

MURNAGHAN, Circuit Judge,

concurring in part and dissenting in part:

While I fully concur with the majority opinion insofar as it disallows recovery on a copyright or trade secrets basis, I reluctantly come to another conclusion with respect to whether CTI, as employer, could enforce as reasonable and not unduly harsh or oppressive the Hawkes covenant not to compete. The covenant not to compete held valid by the majority is operable “within the United States.” The district court found that a reasonable covenant would restrict competition only in “Virginia, Nebraska and perhaps one other state.” The majority has enhanced CTI’s claim to proof of reasonableness by naming 31 states in which CTI has licenses, clients, or potential clients, but that still leaves 19 others, every one of which, it seems to me, is “within the United States.” While the majority characterizes CTI’s business as “national,” it has provided no justification for calling it all inclusive.

The question of validity or not of the non-compete undertaking is one to be decided by the law of the Commonwealth of Virginia. The decision announced by the majority, that a company with business in only 31 states may enforce a non-compete clause in all 50, is a mathematically dubious one on a Virginia point of law. However, the same decision, if announced by the Virginia Supreme Court, would carry more authority than any decision on the point announced by the Fourth Circuit. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967) (applying the rule of Erie R. Co. v. Tompkins1 in a nondiversity case when underlying substantive rule is based on state law because “the State’s highest court is the best authority on its own law.”). I feel and have suggested that the question should be certified to the Supreme Court of Virginia. Unfortunately, my colleagues on the panel feel otherwise. Hence, I must make as *742educated a guess as possible as to what the Virginia law is.2

A restraint on an employee is unreasonable if it is greater than is necessary to protect the employer in its legitimate business interest and unreasonable from the employee’s standpoint as unduly harsh in curtailing his legitimate efforts to earn his livelihood. Richardson v. Paxton Co., 203 Va. 790, 795, 127 S.E.2d 113, 117 (1962). “Whatever [the employer’s] subjective intent, we must give effect to the language of the agreement, strictly construed.” Linville v. Servisoft of Virginia, Inc., 211 Va. 53, 55, 174 S.E.2d 785, 787 (1970).

Because restraints of trade are disfavored in Virginia, we must give effect to the language of the agreement, strictly construed. See Linville v. Servisoft of Virginia, Inc., 211 Va. 53, 55, 174 S.E.2d 785 (1970); Richardson v. Paxton Co., 203 Va. 790, 127 S.E.2d 113 (1962). We construe the agreement, reading it literally and construing it favorably to the employee, as an attempt to impose a post-employment restraint upon Gress [employee] without geographic or other limitation. We must therefore decline Alston’s [employer’s] invitation to read into the agreement limitations which simply are not there.

Alston Studios, Inc. v. Lloyd V. Gress & Associates, 492 F.2d 279, 285 (4th Cir.1974). “Conceivably the non-competition clause could be interpreted more narrowly, but Virginia law requires that it be strictly construed against the employer....” Grant v. Carotek, Inc., 737 F.2d 410, 412 (4th Cir.1984).

The Supreme Court of Virginia has never approved a non-compete clause that restricts employment “within the United States.” To the contrary, Virginia courts have repeatedly held that non-compete clauses should be limited to a geographical area no greater than is necessary to protect the employer’s legitimate business interests. Where Virginia courts have enforced non-compete contracts, the contracts have restricted competition only within “quite narrow and well defined geographic limitations.” Alston Studios, 492 F.2d at 283 n. 5. See, e.g., Blue Ridge Anesthesia & Critical Care, Inc. v. Gidick, 239 Va. 369, 371, 389 S.E.2d 467, 469 (1990) (covenant that prohibited employment only in territories serviced by the former employee, not in the company’s entire market area, enforced); Roanoke Eng’g Sales Co., Inc. v. Rosenbaum, 223 Va. 548, 552, 290 S.E.2d 882, 884 (1982) (three year restriction that broadly limited an employee’s right to be employed by any similar business enforced; court specifically noted that the restriction was reasonable because it was geographically co-terminous with the territory in which the employer did business, which involved only two states); Meissel v. Finley, 198 Va. 577, 581, 95 S.E.2d 186, 190 (1956) (covenant with restrictions that applied only within a radius of 50 miles of Norfolk enforced); Worrie v. Boze, 191 Va. 916, 922-26, 62 S.E.2d 876, 879-81 (1951) (covenant that restricted competition within 25 miles of dance studio enforced); Stoneman v. Wilson, 169 Va. 239, 245, 192 S.E. 816, 818 (1938) (agreement of employee not to go into the hardware business for five years within a limited geographical radius enforced); Power Distribution, Inc. v. Emergency Power Eng’g, 569 F.Supp. 54 (E.D.Va.1983) (non-compete contract that restrained former employee from employment with anyone in competition with employer found too broad because area in which plaintiff competed was not fixed and thus the limitation could extend “to every location where plaintiff might potentially compete, which included at least the entire United States”).

Perhaps the Virginia Supreme Court would agree that the noncompete clause ap*743plicable to the employee, Hawkes, was reasonable, but in doing so it would have severely to limit, curtail or even contradict what it has said before. I do not accept that we are free to treat a controlling state rule of law applied by the highest court in the Commonwealth of Virginia so cavalierly.

Accordingly, I would hold the non-compete clause overbroad and hence invalid. I would uphold the district court throughout. So to that extent I dissent.

MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

ANTHONY W. ISHII, Chief Judge.

This is an action in diversity by plaintiff Agency Solutions.Com, LLC dba Health *1006Connect Systems (“HCS”) against defendant The TriZetto Group, Inc. (“TriZetto”) for misappropriation of trade secrets pursuant to California Civil Code § 3426 et seq. In the instant motion, HCS seeks a preliminary injunction to prevent TriZetto from marketing a computer software product called “Enrollment Manager” on the ground that Enrollment Manager incorporates trade secrets belonging to HCS. For the reasons that follow, HCS’s motion for preliminary injunction will be denied. The parties do not dispute that diversity jurisdiction exist pursuant to 28 U.S.C. § 1332. Venue is proper in this court.

FACTUAL BACKGROUND

I. The April 2009 Strategic Alliance Agreement

HCS is a company that makes and markets software for brokers and underwriters of health insurance plans and policies. In the jargon of the insurance business, HCS’s focus is on computer programs that service the needs of the “front-end” where individuals and businesses seek individual or group insurance policies or plans offered by brokers and underwriters representing one or more insurance companies. TriZetto is a company that develops and markets software that services the administrative needs of the insurance companies themselves. Such software is termed “back-end” software. HCS, prior to any relationship to TriZetto, was the developer and marketer of a program called “Quote,” which is used by brokers to input buyer-specific information and retrieve rate quotes from various insurance providers. Pertinent to this action, TriZetto developed and markets a software programs called Facets®, which is widely used by major health insurance providers such as Blue Cross, etc. for back-end administrative purposes. TriZetto’s development and marketing of the Facets® program preceded any relationship with HCS.

On April 9, 2009, the parties executed the Strategic Alliance Agreement (the “Agreement”), the purpose of which was to develop what is referred to in the Agreement as the “Integrated Solution.” The Integrated Solution was to be marketed to the public under the name “QuoteToCard,” sometimes referred in documents as “QTC” or “Q2C.” According to HCS’s complaint, the parties issued a joint press release on May 18, 2009, describing Quote2Card as a product that “will integrate [TriZetto’s] Facets® and QNXT” enterprise and administration platforms with HealthConnect’s broadly adopted broker portal and sales automation tools to provide payers and brokers a complete end-to-end solution for sales and service processes, including prospecting, rating and quoting, underwriting, enrollment, billing, membership and customer service.” Complaint at ¶ 12.

The Agreement anticipates that the cooperative effort between the parties will produce a number of work products, primarily in the form of computer programs. The Agreement delineates what work product will belong to which party and what the duties of the parties are in the protection of each other’s intellectual property interests. The Agreement also anticipates the relationship between the parties when the time comes to market and maintain the Integrated Solution to and for potential customers. A copy of the Agreement is provided at Exhibit A of Declaration of Peter Everett in Support of Motion for Preliminary Injunction. Provisions of the agreement that appear to be significant to the court’s consideration of HCS’s motion for injunction are summarized as follows:

A. Duration and Termination of the Agreement

The Agreement establishes that the initial term of the Agreement is five years. *1007Thereafter the Agreement could be extended by mutual agreement for sequential terms of two years. The Agreement provides specific agreed-upon reasons for termination that include (1) termination for cause (i.e. breach), (2) change in corporate control, (3) insolvency of either party, (4) failure to meet specified performance targets, and (5) where there is a failure of the parties to reach agreement on sequential development plans that are due at specified times.

The Agreement provides that upon termination of the Agreement, each party must immediately cease use of the intellectual property and confidential information of the other and shall return to the other party, or destroy, existing copies of confidential information or intellectual property of the other party except as specified. The Agreement also provides that upon termination of the Agreement, TriZetto would cease to market or sell the Integrated Solution as well as any programs belonging to HCS that TriZetto was authorized to market under the Agreement. Although there is disagreement as to whether the termination of the Agreement was for one of the listed permissible reasons, there is no dispute that TriZetto terminated the Agreement effective May 2, 2011.

B. Intellectual Property Rights Granted

Under Section 4 of the Agreement, the Parties granted to each other limited licenses to the use of each other’s software for the limited purposes of: (1) development of interfaces and functionality required for the Integrated Solution; (2) integration of software between systems; (3) hosting software of the other Party for the purpose of demonstrating the functionality of the Integrated Solution to potential customers, subject to no-copy and no-backup restrictions;. and (4) for other marketing activities where potential client access is controlled by TriZetto. With regard to source code, the Agreement provides for limited access by each party to the other party’s software or source code in complementary paragraphs that are worded as follows

At [one Party’s] reasonable request, subject to the terms and conditions of this Agreement, [the other Party] agrees to provide [the requesting Party] limited access to review the discrete components of the [requested Party’s] Software Source Code for the sole purpose for the development of each Interface in accordance with the applicable Development Plan, where the [requesting Party] is responsible for the development of such Interface or the [other Party] has requested assistance in the development of such interface and access to the [other Party’s] software is necessary for such development. In addition, at [one Party’s] reasonable request, subject to the terms and conditions of this agreement, [the other Party] agrees to provide [the requesting Party] limited access to the use of the configuration resources necessary for, and for the sole purpose of, the development of each Interface in accordance with the applicable Development Plan, where the [requesting Party] is responsible for the development of such Interface or [the other Party] has requested assistance in the development of such Interface and access to the configuration resources is necessary for such development.

Agreement at ¶¶ 4.2, 4.3. In addition, the Agreement places the following Restrictions under Section 4:

Neither party shall (i) copy, (ii) modify, (iii) reverse engineer, decompile, disassemble or re-engineer or otherwise create or attempt to create or assist others to create the Source Code of the *1008software of the other party, or its structural framework; or (iv) use the other party’s software in whole or in part for any purpose, except as expressly provided under this Agreement. In addition to the confidentiality provisions contained herein, neither party shall cause or permit the display, loan, publication, distribution, transfer of possession (whether by sale, exchange, gift, operation of law, or otherwise), sublicensing or other dissemination of the other party’s software, in whole or in part, to any third party, including, but not limited to consultants, subcontractors, systems integrators providing services to such party without the other party’s prior written consent, except as expressly permitted under this Agreement.

Agreement at ¶ 4.4.

C. Intellectual Property Rights Reserved

Pursuant to Section 8 of the Agreement, Each party reserved to itself property rights that were owned by it according to parallel Agreement language that provided:

All property rights, title and ownership rights, including worldwide ownership of the Intellectual Property Rights in and to the [Party’s] Marks, the [Party’s] software and HCS Independent Carrier Services1 including derivative works thereof or materials or technology related thereto, whether developed by [either party] or any third party, and all Confidential information provided by [one Party to another] hereunder shall at all times remain vested in [the originating Party] and its licensors, except as otherwise provided herein. All proprietary rights, title and ownership rights, including worldwide ownership of the Intellectual Property Rights in and to Interfaces under the Development Plans by [one Party] shall be owned by [that Party]. The Development plan shall specify which interfaces shall be considered to be developed by [the respective Parties]. Except for the right to use the [marks and/or licenses of one Party] pursuant to Section 4, [the other Party] is granted no Intellectual Property Rights under this Agreement.

Agreement, ¶¶ 8.1, 8.2. As to jointly developed intellectual property, the Agreement provides:

Notwithstanding Sections 8.1 and 8.2, all proprietary rights, title and ownership rights, including worldwide ownership of the Intellectual Property Rights in and to any jointly developed Interfaces shall be owned jointly by TriZetto and HCS. In addition all proprietary rights, title and ownership rights, including worldwide ownership of the Intellectual Property Rights, in and to any jointly developed software that provides customers with new functionality and which is not deemed to be a Derivative Work of either party, shall be owned jointly by TriZetto and HCS. The Development Plans shall specify what is to be considered jointly developed by TriZetto and HCS. With respect to any jointly owned Intellectual Property Rights, each party disclaims any obligation to render an accounting to the other party for any profits earned (other than pursuant to this Agreement).

Agreement ¶ 8.4.

D. Exclusivity

Section 6 of the Agreement provides that TriZetto is to be the exclusive mar*1009keting agent for the QuoteToCard product. Subsection 6.3(a) provides:

Neither HCS nor TriZetto will enter into a joint venture, partnership or other business arrangement with any Sales Automation Vendor to develop, sell, or promote any product providing functionality that is competitive with the functionality offered by the Integrated solution.

II. Plaintiffs Conceptual Model and Allegations of Misappropriation

(Note: arrows represent flows of compatible data between program components.)

A. Plaintiff’s Conceptual Model

The crux of Plaintiffs allegations of misappropriation of trade secrets is that TriZetto coded a substantial portion of the functionality of the QTC Manager using HCS’s “trade secrets and know-how.” In particular, HCS alleges that all eight of the “TO” programs and the “QTC Manager” program were coded by TriZetto and embody HCS’s trade secrets. In this model the “QTC Manager” represents the programming efforts of both parties and embodies HCS’s “Trade Secrets and Know-How.”

B. TriZetto’s Conceptual Model

TriZetto presents a competing conceptual model that emphasizes the sharpness of the boundary between what TriZetto owns and what HCS owns:

*1010

The essence of TriZetto’s argument is that ownership of the intellectual property relating to the Integrated Solution is signified by who wrote the code for the software and whose server hosts that code. Thus, in the diagram above, what HCS describes as the “TO” function becomes two sets of interfaces; some owned by HCS and hosted on their servers and some owned by TriZetto and hosted on their servers. For example, TriZetto alleges that “addProtoGroup,” one of the eight interface programs, consists of software developed by HCS and hosted on HCS’s servers and of software developed and coded by TriZetto and hosted on TriZetto’s servers. Thus, in TriZetto’s conceptual approach, all software, and therefore all rights, are owned by one party or the other. TriZetto claims ownership of its interface software and of that portion (shaded) of the Integrated Solution called the “Q2C Manager” which is later referred to as the proposed product, “Enrollment Solution.”

C. HCS’s Allegations

As mentioned, HCS’s allegations center mainly around the eight “TO” interface programs. These programs are numbered and named for reference purposes thus:

Interface 1: “addProtoGroup”

Interface 2: “updateProtoGroup”

Interface 3: “terminateProtoGroup”

Interface 4: “rateLoad”

Interface 5: “TriggerQTC”

Interface 6: “EnrollQTCFamily”

Interface 7: “EnrollQTCMultiFamily”

Interface 8: “GetQTCFamily”

The generalized allegation leveled at TriZetto by HCS is that:

In drafting the code for the “To” interfaces and other software components, [TriZetto] relied extensively on HCS’s trade secrets and know-how about automated sales programs for individual/family and small business health insurance plans. In fact, as noted elsewhere, [TriZetto] solicited HCS’s trade secrets and other proprietary knowledge regarding several components critical to that portion of the software, including to ensure that the Card platform could exchange data properly with HCS’s Quote application. In particular, [TriZetto] sought and obtained HCS’s proprietary information and knowledge about rating, enrollment and underwriting processes, and the work-flow necessary to transmit data to and *1011from a sales automation system like HCS’s Quote application.

Complaint, ¶ 26.

Most of the “Trade Secrets”2 that HCS alleges TriZetto misappropriated are set forth in Appendix 1 of HCS’s Complaint which is available as “Exhibit “C” to Plaintiffs Request to Seal Documents” (hereinafter, “Exhibit C”). Exhibit C consists of a list of 26 Trade Secrets, each of which is labeled with a general, rather non-descriptive categorical title. Each labeled Trade Secret is coupled with a narrative that purports to describe what the trade secret is, how it was communicated to TriZetto, and how it was incorporated or used by TriZetto. The “Trade Secrets are grouped under four categories”; “Conception and Design,” “Workflow Processes and Flows,” “Rating and Underwriting,” and “Miscellaneous.” Rather than summarize each of the 26 Trade Secrets, the court will quote one “representative Trade Secret” from each of the first three categories mentioned above in its entirety in order to illustrate the common themes that crop up in each of the narratives that describe the 26 “Trade Secrets.”

The first is Trade Secret numbered “1” and is under the general heading of “Conception and Design:”

On or around mid-April 2009, HCS’s Daniel Masciopinto and others from HCS met with representatives from [TriZetto] at a two day in person meeting at TriZetto’s offices in Phoenix, AZ to “kick off’ the initial development of QuoteToCard. Per the agenda of this meeting, several topics were discussed and Mr. Masciopinto co-led several discussions including “Technical design session: Review interfaces ...” and “Technical session ... enrollment flows and interfaces.” During this meeting, HCS attended each of the sessions and orally disclosed know-how and proprietary understanding directly related to these topics, including process flow issues and a review of the interfaces that would be needed and built. As a result of these disclosures, the parties agreed “on high level flows for new group set up and member enrollment” and “identified necessary interfaces for Q2C 1.0.” and agreed upon a “Definition of list of BRDs needed for QTC 1.0.” (BRD’s refer to Business Requirement Documents and are used as development plan documents utilized by [TriZetto] to build QTC Manager and the interfaces and other software components incorporated therein). Three of the “To” interfaces conceived in this meeting were Interface 1 “addProtoGroup”, Interface 2 “updateProtoGroup,” and interface 8 “terminateProtoGroup.” The information orally disclosed by HCS at this meeting was also incorporated into the “Overview Requirements — End to End Solution” development plan document used by the parties in the development plans as evidenced by the Document Version History where it notes “Expand content and address from early review at Phoenix on-site.”

The second example is numbered Trade Secret # 9, “Process Flow Diagram.” It is listed in the category labeled “Workflow Processes and Flows:”

On or around November 5, 2009, Gregg Rosenthal of [TriZetto] sent an email to Ms. Jones in which she stated: “I’m wondering if you have any HCS Quoting and/or Sales flows for the broker’s pro*1012cesses to get folks signed.” Ms. Jones responded to Mr. Rosenthal’s request in an email dated November 6, 2009, to which she attached a spreadsheet showing the quoting flow (with and without medical underwriting capabilities), as well as the flow for the enrollment process. This spreadsheet disclosed HCS’s confidential understanding of how the front-end process for quoting and enrollment works, particularly from the perspective of the agent, and the costs for the carrier and agent for each step of the process.

[TriZetto] used this to understand how to map the back-end workflow to create an end-to-end process and overall logical end user experience for both the broker and carrier. Such understanding of the front-end process, provided by HCS, was necessary for [TriZetto] to accomplish this objective. [TriZetto] also needed to understand the amount of effort (as evidenced by the cost) required by both brokers and carriers for each process in order to understand the importance of automating each function.

The third and final example is labeled Trade Secret # 18 “Rating Rules.” This Trade Secret is listed under the general heading “Rating and Underwriting.”

On or around July 2, 2009, Ms. Neben of [TriZetto] sent an email to Mr. Everett of HCS and Mr. Grossman of [TriZetto] asking them to “read and comment” on the attached document entitled “Rating Notes.” Mr. Everett responded to Ms. Neben on July 6, 2009, in an email in which he explained how best to achieve an optimal integration between a sales automation application and [TriZetto’s] Card platform. Mr. Everett’s response was based pon trade secrets and know-how of HCS. Eventually [TriZetto] used this information and insight in designing the optimal way for QuoteToCard to “enable someone at the payer to review the information [submitted by the broker via the sales automation application] and ‘bless’ the group before open enrollment begins.”

As the foregoing examples illustrate, each of the narratives describing a Trade Secret begins with a date at which there is a communication by HCS in response to an express need or requirement by TriZetto for some form of information or understanding. The narrative explains in very general terms what the nature of the information needed is and either expressly or impliedly states that the information was a Trade Secret developed by HCS through their effort and experience. The narrative then relates how the information requested by TriZetto is provided by HCS and incorporated by TriZetto into one or more components or sub-systems of the “To” functionality. Each of the narratives, then, begins with HCS’s knowledge and ends with the ultimate incorporation of that knowledge into programming that TriZetto completed. While TriZetto implies that some of the interchange of facts and/or ideas between the parties resulted in source code and/or software produced and owned by HCS, HCS does not mention this.

HCS alleges that in “early 2011” TriZetto formed the intent to cease its exclusive relationship with HCS and to independently market a product that is either very similar to or the same as the QTC Manager program — in other words the interface programs and functionality — to HCS’s competitors. In this regard, HCS alleges that TriZetto has taken (appropriated) the QTC Manager which allegedly contains HCS’s “trade secrets and knowhow” and renamed it “Enrollment Manager” for purposes of marketing. HCS alleges that TriZetto offered HCS the unpalatable choice of amending the Agreement to remove the exclusivity provisions or TriZetto would take unilateral action to abrogate *1013the exclusivity provisions of the Agreement. HCS alleges that an agreement is imminent between TriZetto and one of HCS’s competitors whereby the Enrollment Manager program, presumably along with the interface capability, will be transferred to the competitor.

Following expedited discovery, HCS determined that TriZetto had produced a 343-page service manual to support its stated goal of selling and supporting the Enrollment Manager product. In its Reply Declaration of Daniel Masciopinto in Support of Motion for Preliminary Injunction (hereinafter “Masciopinto Reply Dec.”), HCS alleges that the Enrollment Manager Service Manual “document provides an overview of the design in the software in QuoteToCard manager, including the ‘To’ interfaces and as such reveals HCS’s [Tirade [Slecrets.” Masciopinto Reply Dec. at ¶ 2. In the same manner as the list of Trade Secrets in Exhibit C, the Masciopinto Reply Dec. sets fourth a list of three additional Trade Secrets that are purportedly derived from the Service Manual. The first of these alleges that the Table of Contents of the Service Manual constitutes a Trade Secret because it discloses a “[d]escription of conception architecture for creating [the] integrated end-to-end solution.” The second alleged Trade Secret is listed under the heading of “Rating” and alleges that the Service Manual discloses a description of “EnrollQTCFamily interface as including rate information” and include a description of the “rateLoad interface and service” which is allegedly related to the group rateLoad interface. Finally, HCS alleges the Service Manual discloses a “[d]escription of the TriggerQTCAction interface and services as kicking off the post-enrollment processing rules.” Masciopinto Reply Dec. at 1:24-2:16.

All together, HCS alleges a total of 29 Trade Secrets that are “embodied” in various of the interface functions of the “To” portion of the QuoteToCard system. HCS seeks preliminary injunction primarily in order to prevent disclosure of its “Trade Secrets” through TriZetto’s threatened marketing of Enrollment Manager, a set of program functions that are essentially the same as QuoteToCard manager.

D. TriZetto’s Allegations

TriZetto’s opposition to HCS’s motion for preliminary injunction rests on three main contentions. First TriZetto alleges that the information that HCS disclosed to TriZetto was not trade secret information. TriZetto does not dispute any of HCS’s allegations with regard to the Agreement or with the business purposes of the parties in forming the Agreement. In general, what TriZetto disputes is the characterization that HCS applies to the information that was transmitted by HCS to TriZetto. TriZetto contends that the information it received from HCS was either (1) publically available general industry knowledge (such as through the internet), or (2) information that was known to TriZetto through TriZetto’s own expertise, or (3) “big picture input” or broad conceptualizations that do not qualify as trade secret information, or (4) information that was transmitted from HCS to TriZetto but never used by TriZetto or incorporated into any software program. TriZetto alleges that HCS assiduously avoided sharing detailed information of the sort that could legitimately be considered trade secret.

Second, while TriZetto agrees that the work product that was the outcome of the collaboration between the parties under the Agreement includes all of the “To” programs and other management programs listed by HCS, TriZetto alleges that documents exchanged between the parties during the planning stages — that is, before *1014the programs were written — indicate which party is to be responsible for the program and which party is to “own” the programming within the meaning of the Agreement. In this regard, TriZetto characterizes the line that divides what HCS “owns” and what TriZetto “owns” as being very sharply contractually defined. TriZetto admits of no programming that falls into any intermediate category of ownership and contends that any intellectual property “rights” that might exist are defined and allocated according to how the parties agreed to divide the responsibility for, and ownership of, the various interface and management programs.

Finally, TriZetto contends that, even if there was any information that was passed from HCS to TriZetto that could legitimately be considered trade secret, and even if that information was somehow embodied in programming written by TriZetto, and even if TriZetto were to eventually sell such programming to a third party, there would be no misappropriation through impermissible disclosure of trade secrets. As the court understands TriZetto’s argument, trade secret information, to the extent it may have been incorporated into software, is not disclosed by the software’s operation. TriZetto contends that there has never been, nor is there threatened to be, any disclosure of source code to any third party. TriZetto contends that injunctive relief is not proper in this case even if there were trade secret misappropriation because there is no possibility of disclosure of such trade secrets to third parties. To the extent there could possibly be misappropriation by TriZetto by use of HCS’s trade secrets, TriZetto contends such use could be adequately addressed by an award of damages.

TriZetto, like HCS has submitted substantial volumes of documentation to support their relative positions. The documents will be discussed to the extent they are relevant in conjunction with the analysis that follows.

LEGAL STANDARD

“Injunctions in the area of trade secrets are governed by the principles applicable to injunctions in general.” Whyte v. Schlage Lock Co., 101 Cal.App.4th 1443, 1449, 125 Cal.Rptr.2d 277 (4th Dist.2002). The legal principles applicable to a request for preliminary injunctive relief are well established. To prevail, the moving party must show either: “(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.” Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir.1999); Oakland Tribune, Inc. v. Chronicle Publishing Company, Inc., 762 F.2d 1374, 1376 (9th Cir.1985). The two formulations represent two points on a sliding scale with the focal point being the degree of irreparable injury shown. Walczak, 198 F.3d at 731; Oakland Tribune, 762 F.2d at 1376. The greater the relative hardship to [a plaintiff], the less probability of success must be shown. Walczak, 198 F.3d at 731. “Under either formulation of the test, plaintiff must demonstrate that there exists a significant threat of irreparable injury.” Oakland Tribune, 762 F.2d at 1376. In the absence of a significant showing of irreparability, the court need not reach the issue of likelihood of success on the merits. Id.

ANALYSIS

California’s Uniform Trade Secrets Act (“UTSA”), codified at sections 3426 through 3426.11 of the California Civil Code, “authorizes a court to enjoin the actual or threatened misappropriation of trade secrets.” Cytodyn, Inc. v. Amerimmune Pharmaceuticals, Inc., 160 Cal. *1015App.4th 288, 296, 72 Cal.Rptr.3d 600 (2nd Dist.2008) (citing § 3426.2). To state a prima facie claim for trade secret misappropriation, a plaintiff must demonstrate: “(1) the plaintiff owned a trade secret, (2) the defendant acquired, disclosed, or used the plaintiffs trade secret through improper means, and (3) the defendant’s actions damaged the plaintiff.” Id. at 297, 72 Cal. Rptr.3d 600.

I. Probability of Success on the Merits

A. Trade Secrets

It is crucial to any CUTSA Cause of action — and any defense — that the information claimed to have been misappropriated be clearly identified. Accordingly, a California trade secrets plaintiff must, prior to commencing discovery “identify the trade secret with reasonable particularity.” (Code Civ. Proc., § 2019.210); See M. Lemley, the Surprising Virtues of Treating Trade Secrets as IP Rights (2008) 61 Stan. L. Rev. 311, 344 (plaintiff should be required to “clearly define what it claims to own, rather than (as happens all too often in practice) falling back on vague hand waiving”).

Silvaco Data Systems v. Intel Corp., 184 Cal.App.4th 210, 221, 109 Cal.Rptr.3d 27 (6th Dist.2010). To avoid the “vague hand waiving” that the court is cautioned against, the plaintiff is burdened to make two showings. First, the plaintiff must clearly identify what the “thing” is that is alleged to be a trade secret, and second, the plaintiff must be able to clearly articulate why that “thing” belongs in the legal category of trade secret.

1. What is and is not a Trade Secret

A plaintiff requesting injunctive relief has the burden to show that the information that was misappropriated constitutes a trade secret. Therapeutic Research Faculty v. NBTY, Inc., 488 F.Supp.2d 991, 999 (E.D.Cal.2007). “A ‘trade secret’ is defined as ‘information, including a formula, pattern, compilation, program, device, method, technique or process, that: (1) [djerives independent economic value, actual or potential, from not being known generally to the public or to other persons who can obtain economic value from its disclosure or use; and (2) [i]s subject to efforts that are reasonable under the circumstances to maintain its secrecy.’ Cal. Civ.Code § 3426.1(d).” Id.

At the outset, the court notes that although the agreement defines “Confidential Information,” it does not do so in a way that enlarges or modifies the definition of Trade Secret or Confidential Information beyond their traditional legal boundaries. At subsection 1.4 the Agreement provides as follows:

1.4 “Confidential Information” shall mean any information disclosed, either prior to or after the Effective Date, by a party (the “Discloser”) to the other party (“Recipient”), either directly or indirectly, in writing, orally, or by inspection of tangible objects, that is confidential or trade secret information of the Discloser that a reasonable person would recognize as confidential, including the terms of this Agreement, except for information that: (a) is independently developed by the Recipient without reliance on the Confidential Information of the Discloser; (b) is or becomes publicly known through no fault of the Recipient; (c) is already known by the Recipient without breach of any confidentiality obligation to the Discloser; or (d) is lawfully received by the Recipient free from any confidentiality obligation from a third party having the right to provide it without such obligations.

Because the Agreement does not enlarge on the definition of trade secret, the court looks to applicable case authority for *1016guidance. The case authority the court has reviewed appears to use the statutory categories of things that may constitute a trade secret — information, including a formula, pattern, compilation, program, device, method, technique or process — as illustrative rather than restrictive. It is this court’s observation that the motion before it seeks to stretch the category of what is a trade secret. Therefore, the more informative approach is to focus on case authority that illustrates what is not a trade secret.

In Silvaco Data Systems v. Intel Corp., 184 Cal.App.4th 210, 109 Cal.Rptr.3d 27 (6th Dist.2010), disapproved on other grounds in Kwikset v. Superior Court, 51 Cal.4th 310, 337, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011), the appellate court devotes considerable attention to the issue of what a trade secret is and is not. The Silvaco court noted “[a] patent protects an idea, ie., an invention, against appropriation from others. Trade secret law does not protect ideas as such. Indeed a trade secret may consist of something we would not ordinarily consider an idea (a conceptual datum) at all, but more a fact (an empirical datum), such as a customer’s preferences, or the location of a mineral deposit. In either case, the trade secret is not the idea itself, but information tending to communicate (disclose) the idea or fact to another.” Id. at 220-221, 109 Cal. Rptr.3d 27 (italics in original). Thus, the idea of a interface between the front and back ends of healthcare insurance programs is not a trade secret. Neither are conceptual notions that determine how the interface or its related programs will work. The following extended quote from Silvaco is instructive for purposes of this court’s analysis:

the exhibit [submitted by plaintiff to identify a trade secret] does not designate information as such but rather describes various features, functions, and characteristics of the design and operation of [plaintiffs] software products. Thus the first of the 24 listed sub-categories is a “proprietary method” of carrying out a function apparently found in competing programs as well. [....] This asserted secret is also described as “a methodology for” implementing that function, apparently in an unusual way, which “contributes [to] performance and accuracy improvements.” This “trade secret methodology” is “implement[ed]” by two named “modules,” also described as “functions,” which “represent part” of the critical “algorithm.” Three “unique features” of this method are listed: The “integration” of two other operations; a “method” of “changing and controlling” a variable, which “affects the performance of the simulation”; and a mode of “implementation” that produces “[e]fficieney.”

[Plaintiffs submitted exhibit] thus appears to attempt to characterize various aspects of the underlying design as trade secrets. This of course contravenes the principles discussed above. The design may constitute the basis for a trade secret, such that information concerning it could be actionably misappropriated; but it is the information— not the design itself — that must form the basis for the cause of action. And while the finished (compiled) product might have distinctive characteristics resulting from that design — such as improved performance — they cannot constitute trade secrets because they are not secret, but are evident to anyone running the finished program. Indeed, to the extent [enhanced characteristics] tend to disclose the underlying, [the underlying design] ceases to be a protectable secret for that same reason.

Id. at 221-222, 109 Cal.Rptr.3d 27 (all italics in original).

*1017Based on the foregoing, a list can be constructed that summarizes what is not a trade secret:

1. “[G]eneral knowledge in the trade or [...] special knowledge of those persons who are skilled in the trade” are not trade secrets. Diodes, Inc., 260 Cal.App.2d at 253, 67 CaLRptr. 19.

2. Ideas or concepts are not, in and of themselves, trade secrets. Silvaco, 184 Cal.App.4th at 221-222, 109 Cal. Rptr.3d 27.

3. Proprietary ways of doing the same thing that others in the same field do are not trade secrets. Id. (Note, however, that while the way something is done is not a trade secret, some discrete fact concerning that way could conceivably be a trade secret.)

4. Plans, flows, inputs, outputs, rules of operation, priorities of operation, and the like are not trade secrets to the extent they are manifest in the way a program works. Id. In other words, background information comprising, for example, the features and functions, the business requirements and the high level design specifications that are incorporated into software and are evident in the operation of the software are not trade secrets. While source code is undoubtably a trade secret, the way the source code works when compiled and run is not.

2. Duty of Pleading Party to Identify Trade Secret with Particularity

For purposes of preliminary injunction, the party seeking injunctive relief must “describe the subject matter of the trade secret with sufficient particularity to separate it from matters of general knowledge in the trade or of special knowledge of those persons who are skilled in the trade, and to permit the defendant to ascertain at least the boundaries within which the secret lies.” Diodes, Inc. v. Franzen, 260 Cal.App.2d 244, 253, 67 Cal.Rptr. 19 (1968). The obligation to identify alleged trade secrets with specificity serves the needs of the court in addition to the defendant. In Imax Corp. v. Cinema Technologies, Inc., 152 F.3d 1161 (9th Cir.1998) the appellate court held that the district court properly rejected a claim that information was a trade secret where the plaintiff “failed to carry its burden of identifying for the court” exactly what information was claimed to be a trade secret. Id. at 1167-1168 (italics added); see also Universal Analytics, Inc. v. MacNeal-Schwendler Corp., 707 F.Supp. 1170, 1177 (C.D.Cal.1989) (plaintiff failed to inform defendant or the court “precisely which trade secret it alleges was misappropriated”), aff'd, 914 F.2d 1256 (9 Cir.1990). A district court can therefore reject a claim that information is a trade secret sua sponte if the information is not identified by the claimant with sufficient particularity to allow the court to determine what the information is.

The fact that a particularized description of an alleged trade secret is a duty owed to the court simplifies the determination of what is required to meet that obligation. Case authority pertaining to trade secrets makes it clear that, while courts are expected to make an item-by-item determination of what is and is not a trade secret, alleged trade secrets that are not sufficiently identified to be included within either category cannot be the basis of a claim of misappropriation. See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 520-522 (9th Cir.1993) (specific customer database is a trade secret while misappropriation claim based on generalize assertion of trade secrets in diagnostic software and operating systems must fail because the alleged trade secrets are not identified with sufficient specificity). In sum, information that is alleged to be a *1018trade secret3 falls within one of three categories: (1) information that can definitely be identified as a trade secret, (2) information that can be definitely identified as not a trade secret, and (3) the information is insufficient to permit placing it in either category (1) or (2). A claim for misappropriation can only be based on information in the first category.

B. Do the Alleged Ti-ade Secrets Quality as trade secrets?

HCS listed its Trade Secrets in Appendix 1 in four categories. The following discussion analyzes whether any or all of the alleged Trade Secrets within each category are sufficiently described as trade secrets.

1. Conception and Design Trade Secrets

The first three of the alleged Trade Secrets are described as the product of face-to-face conversations that occurred at the beginning of the collaboration between HCS and TriZetto. The first of these collaborations occurred in Phoenix and resulted in the production of “ ‘high level flows for new group set up and member enrollment’ and identified the necessary interfaces.” Appx. 1 at ¶ 1. The second face-to-face meeting took place in Denver and addressed “Phase 2 needs and functionality and market need.” A third meeting occurred in Denver in November 2009 to discuss “the potential functionality and capabilities to be added to QuoteToCard based upon an understanding of the needs of prospective customers.” Id. at ¶ 3. In each of these three meetings, HCS alleges its representative(s) provided input, insight, know-how, “proprietary understanding,” etc. In each example, HCS alleges there emerged from the process an understanding, usually memorialized in a document or documents, that was/were used to provide high-level guidance for product development. HCS does not allege that in any of the three meetings they provided any discrete item, plan, list, formula, compilation or any other discrete factual datum. In each of the three examples the court is asked to find that the product or documents that emerged as a result of HCS’s participation in the meetings constitutes a Trade Secret because it embodies HCS’s knowledge, insight or know-how.

HCS’s failure to meet its burden to show that the alleged Trade Secrets were, in fact, trade secrets can be expressed in at least two ways. First, the descriptions HCS provides for the first three “Trade Secrets” are far from specific enough to discern the nature of the Trade Secret that was allegedly being disclosed or misappropriated. The first of the three alleges “HCS attended each of the sessions and orally disclosed know-how and proprietary understanding directly related to these topics, including process flows and *1019interfaces that would be needed to be built.” Appx. ¶ 1. The second merely states that HCS provided “insights.” The third of the alleged Trade Secrets is only slightly more specific in that it alleges that HCS’s representatives Everett and Masciopinto “addressed” meeting topics pertaining to market requirements and “orally disclosed confidential information about these topics.” HCS alleges in concluding the narrative that “The information Mr. Everett and Mr. Masciopinto discussed was based on trade secrets and know-how HCS has developed based on our time in the sales automation industry for health insurance.” Appx. 1 at ¶ 3. None of these statements or narratives comes close to providing a basis for understanding the boundaries or nature of the alleged Trade Secret, nor does it provide any basis for a determination that the alleged secret is not a matter “of general knowledge in the trade or of special knowledge of those persons who are skilled in the trade.”

Second, the first three Trade Secrets are not trade secrets. To the extent HCS’s narrative is sufficient to describe anything, it describes only that its representatives who were experienced and skilled in the topics being discussed provided the benefit of their insight and know-how. There is no discrete “fact” that was provided by HCS. As noted above, insight, knowledge and know-how acquired by an insider to a particular trade does not, in and of itself, constitute trade secrets. Similarly ideas and broad conceptualizations are not trade secrets. Finally, pursuant to the holdings in Silvaco, information that is reflected in the way software functions from the point of view of the user is not trade secret information. Thus, to the extent the information that was exchanged in the first three of HCS’s alleged Trade Secrets determined, for example, what data fields would be presented to the operator, in what order and in what format; that information is not trade secret information because it is readily deducible to anyone using the program or programs. HCS’s narratives with regard to the first three Trade Secrets suggest that their input was instrumental in identifying functionality that would later be manifested as computer programs or subroutines within programs. When that functionality is later apparent to a person operating the computer program, the information that lead to the incorporation of that functionality cannot be considered a trade secret.

The court concludes HCS has failed to adequately demonstrate that the information reflected in the first three of its alleged Trade Secrets are, in fact, trade secrets.

2. “Workñow Processes And Flows” Trade Secrets

The Trade Secrets listed in Appendix 1 at numbers 4 through 11 consist of eight alleged Trade Secrets that have to do with HCS’s input into TriZetto’s programming efforts having to do principally with how front-end brokers and marketers of health insurance organize and order the steps involved in sighing up customers. There are two patterns of facts that typify the eight alleged “Workflow Processes and Flows” Trade Secrets. The alleged Trade Secrets numbered 6, 7, 8 and 9 each allege that some proprietary document, usually a workflow diagram, was given by HCS to TriZetto, usually upon the latter’s request for the purpose of facilitating an understanding of workflow process that would enable TriZetto to design and build its components of the interface software. As discussed above, to the extent HCS transmitted tangible information to TriZetto in the form of workflow process charts, those documents do not constitute trade secret information where the information contained in the charts is later manifested in how the software functions. See Silvaco, *1020184 Cal.App.4th at 221-222, 109 Cal. Rptr.3d 27 (information describing proprietary method of carrying out a programming function found in other similar programs is not a trade secret).

Trade Secrets numbered 4, 5 and 10 appear to allege with similar vagueness simply that HCS was a participant in an exchange of information wherein HCS orally offered its “insight,” “proprietary knowledge,” or unspecified “Trade Secrets” in order to further TriZetto’s understanding of workflow processes and trade procedures. The following assertion represents an argument or sentiment that seems to typify HCS’s contentions as to the status of oral or unwritten information it shared with HCS:

In providing the response that drove the design of the workflow diagram that was used by [TriZetto] personnel in understanding exchanges, and in participating in several calls and meetings regarding exchanges with [TriZetto] Mr. Everett provided know-how and trade secrets to [TriZetto] helping [TriZetto] understand how it could facilitate a technical integration between Facets® and an exchange via the “To” interfaces.”

Appendix 1 at ¶ 4.

The final alleged Trade Secret of this group — Trade Secret numbered 11-ap-pears to be something of a catch-all allegation:

HCS provided [TriZetto] with significant process flows during the development of QuoteToCard. Many of these flows are based on the documents provided by HCS as described elsewhere in this document and conversations and discussions between the parties. Among other things, the diagrams included in these exhibit [sic] reflect HCS’s proprietary know-how concerning what actions would be needed to complete the process flows for QuoteToCard particularly the quoting and enrollment flows for small business plans, including Interface 1 “addProtoGroup.”

Appendix 1 at ¶ 11.

HCS’s second group of alleged Trade Secrets suffer from the same problem the first group did; there is no specificity in the designation of any of the alleged Trade Secrets, and HCS fails to explain in sufficient detail how the alleged Trade Secret, to the extent it can be discerned, is a trade secret. Keeping in mind that HCS has the burden to show that what it alleges are Trade Secrets are, in fact, trade secrets; it is HCS’s burden to explain that workflow diagrams (for example) that it gave to TriZetto did not merely reflect facts that would be known, to any other software company designing front-end software for the small business market or that those work flows would not be manifest in the operation of the finished program. Just as bare assertion of a legally required element is insufficient for purposes of pleading a claim for relief, so too the bare assertion that a document represents “proprietary insight” or “know how” or is a “trade secret” is insufficient to carry the burden to show that is the case.

HCS’s narrative regarding the alleged Trade Secret numbered 11 seems to exemplify to some extent HCS’s contentions regarding its role vis-á-vis “Trade Secrets.” It appears that HCS considers that its participation in the joint effort to connect its Quote product with TriZetto’s Card product conferred trade secrets upon TriZetto to the extent that HCS had any substantive knowledge that was useful to TriZetto’s effort to write it’s “To” interfaces. The general sense one gets from reading the narrative descriptions of the Trade Secrets is that if HCS knew something useful and transferred it by any means to TriZetto, then a “Trade Secret” was the thing transferred. The point that HCS seems to skip over in asserting that *1021there was a transfer of Trade Secrets is that information is not necessarily a trade secret simply because it is known by one party and not the other. The two relevant questions are (1) would the information likely be known to someone else that is expert in the claimant’s line of work; and (2) does the information have independent economic value because it is not generally known to the public? As noted above, the plaintiff has the burden to answer both questions when asserting the misappropriation of a trade secret.

To the extent that the parties’ pleadings have given the court a basis for understanding what “work processes” and “workflows” are, the court understands that these subjects address and prescribe a particular, and perhaps even proprietary, way of doing something that would (1) be done in a similar if not identical way by someone else in the same field and (2) would be evident to a person using the program for its intended purpose. Again, the California appellate court’s decision in Silvaco makes it clear that descriptions of the design and function features of software are not information within the definition of California’s UTSA, even where a particular design or functional element may be unique to that software. See 184 Cal.App.4th at 221, 109 Cal.Rptr.3d 27 (a proprietary method of carrying out a function also found in competing programs is not trade secret information). Thus, the court concludes that if, for example, HCS provided TriZetto with a diagram showing HCS’s proprietary method of ordering data entry for a particular function, neither the diagram nor a description of how data entry for that particular function was ordered in the finished program would be considered a trade secret. This is because both the information contained in HCS’s diagram and the description of it’s functionality in a users manual are evident to any member of the public that uses the program. See id.

The court concludes that HCS has failed to show that any of the eight Trade Secrets listed in Appendix 1 at paragraphs 4 through 11 are, in fact, trade secrets.

3. The “Rating and Underwriting” Trade Secrets

HCS’s alleged Trade Secrets numbered 12 to 23 are concerned primarily with information allegedly transmit from HCS to TriZetto concerning various aspects of rates and underwriting. As an initial matter, HCS uses terms including “rates,” “rating process,” “rating workflow” and “rating rules” without explaining precisely what is meant by “rating” or by any of the terms it is used with. Based on the context presented by the narratives, it may be concluded that “rates” generally refers to the premium rates set by healthcare insurance companies for a given plan. “Rating rules” apparently refers to the rules that determine what rate will apply in a given set of factual conditions and how that rate might change under changed conditions. The court infers that “rating process” and “rating workflow” refers to the steps that are taken to determine a rate and the order in which they are taken, respectively. According to Black’s Law Dictionary an “insurance underwriter” is “an insurance company employee who is responsible for determining whether to issue a policy and the amount to charge for the coverage provided.”

TriZetto, contends and provides evidence to support the contention that rates, rating rules and underwriting rules are determined by and made public by the insurance companies. See examples of rating guidebooks provided by various insurance companies at Exhibits 28, 29, and 30 to TriZetto’s Opposition. Thus, neither rates themselves nor underwriting rules (as published and distributed by the insurance companies) are trade secrets. A reading of HCS’s alleged Trade Secrets *1022numbered 12 to 23 indicates they consist primarily of allegations that HCS contributed information that TriZetto allegedly did not know and that the information was useful to TriZetto in writing the various “To” programs. In three of the alleged Trade Secrets from this group, it is apparent that HCS contributed some discrete thing (perhaps in addition to oral or informal communications). In the first two of these HCS alleges it contributed a work-flow diagram pertaining to rating, Trade Secrets numbered 13, and in the second HCS alleges it sent TriZetto “a summary file of the underwriting guidelines for California carriers,” Trade Secret numbered 14. The third alleged Trade Secret involving the transfer of a tangible item to TriZetto consists of a “Scoping Document for Impact of Adding Medical Underwriting.” It appears from HCS’s narrative that the scoping document’s purpose was to assist TriZetto in estimating the amount of development work that would be required for the development of various interface functions.

The remainder of the alleged Trade Secrets under this heading appear to consist of instance where HCS provided oral or email consultation in response to a request for information by TriZetto. HCS’s narrative describing alleged Trade Secret numbered 17 — Medical Underwriting Processes — typifies the allegations in this group that do not appear to involve transfers of physically tangible information:

Mr. Masciopinto participated in the [telephone call with a representative from TriZetto] and provided know-how and proprietary knowledge about medical underwriting and rating that [TriZetto] needed to know in order to integrate Facets® with a sales automation application pertaining to rating and underwriting functions. After this call, Ms. Hammond-Watson [of TriZetto], on May 11, 2010, sent an email indicating the certain sections of the development plan document (BRD) had been updated based on the call. The sections she noted that had been updated contained HCS’s trade secrets and know-how regarding medical rating and underwriting, which [Trizetto] incorporated into the functionality and components of Interface 4 “rateLoad.”

Appendix 1 at ¶ 17.

This group of alleged Trade Secrets, perhaps more than any of the others, appears to involve information that is very likely to be in the nature of information generally known to other persons skilled in the same field and therefore not trade secrets. Certainly, there is no doubt that procuring rate quotes is integral to the underwriting process. It follows that rate acquisition is a functionality that is common to all programs that might compete with HCS’s Quote program. TriZetto’s exhibits that contain the underwriting guidelines for various healthcare insurers. The guidelines are quite thorough and specific. It follows that, in most cases what HCS has alleged as a Trade Secret regarding underwriting is more along the lines of “this is the way we do it” information. Perhaps the information is specific to HCS is some particular, but, pursuant to the foregoing discussion of the holding in Silvaco there is no real trade secret because any provider of front-end software has the same basic information; they may just handle it differently. The same can be said for information pertaining to rates themselves, which clearly are the property of insurance companies. How HCS handles and processes information like rates and underwriting rules that are commonly handled by all front-end software providers cannot be held to have independent economic value on account of its confidential nature because each of the software providers handles the same core information their own way.

*1023While the foregoing observation is not enough to establish that all of the alleged Trade Secrets listed under the heading of Rating and Underwriting are not actually trade secrets; it is sufficient to show that it is very plausible that none are trade secrets. HCS has provided no information (other than labels) to establish otherwise. The court concludes that HCS has failed to provide any evidence to satisfy its burden to show that any of the alleged Trade Secrets in the group labeled Rating and Underwriting are, in fact, trade secrets.

4. Miscellaneous Trade Secrets

HCS alleges three Trade Secrets, numbered 24 through 26, under the heading of Miscellaneous. The first of these is labeled “Input on ‘Enhancements to vl.0’ and ‘Renewals’ Development Plans.” It is frankly difficult to tell what the alleged Trade Secret is from the narrative description. It appears that HCS representatives participated in talks and an “on site walk thru.” HCS asserts that, as a results of HCS’s participation, revisions were made in what appear to be planning documents. HCS contends that the updated documents “show how HCS personnel attended meetings at the request of [TriZetto] and orally provided information based on their experience and insights into the marketplace that were then incorporated in the development plan documents used by [TriZetto] to integrate Facets® to HCS’s sales automation application.” Appendix # 1 at ¶ 24.

HCS’s alleged Trade Secret numbered 24 is not actually a trade secret because no facts are alleged that would make it a trade secret. What HCS has alleged is that its employees participated in meetings and offered opinion and information based on their “experiences and insights.” There is no claim, much less any explanation, that these experiences and insights constitute a trade secret.

HCS’s last two alleged Trade Secrets involve the transfer of tangible documents between HCS and TriZetto. The first of these — Trade Secret numbered 25 — alleges a document titled “HealthConnect Quoting Services Application Programming Interface Document” (hereinafter the “Quoting Services Document”) was provided to TriZetto by HCS pursuant to a request by the former. HCS alleges that the document transferred “is a trade secret of HCS and outlines ‘a set of services that allow vendors access to Health-Connect’s plan and rate information via the web.’ [TriZetto] used this document to understand how a sales automation application such as HCS’s synchronizes plans and rates with a back-end platform such as Facets®.”

The Quoting Services Document describes itself as outlining “the necessary requirements for connecting to the Services and describing] in detail the API’s 4 for the Services.” An examination of the Quoting Services Document indicates it reveals no source code but does specify software requirements, how it is accessed, and describes the data elements of “Quote Request” and “Quote Response,” the two major subroutines in the Service. While the information in the Quoting Services Document is decidedly technical in nature, the impression is that it describes how the Quoting service behaves from the operators point of view which, as discussed supra, is not a trade secret.

Further, HCS’s narrative itself suggests that the Quoting Services Docu*1024ment was provided to TriZetto not for the purpose of providing specific information to be incorporated into TriZetto’s programming, but for background information on how they (HCS) carry out a function that can be assumed to be carried out in similar, though not identical, ways by other companies in the business. The Quoting Services Document, even if it qualifies as a trade secret itself, does not appear to have been used by TriZetto. At maximum, HCS alleges that the Quoting Services Document helped TriZetto “to understand how a sales automation application such as HCS’s” works. This falls far short of alleging that TriZetto actually used, much less embodied, the information in the Quoting Sendees Document into any program or description.

The last of HCS’s alleged Trade Secrets — Trade Secret numbered 26 — is labeled “implementation tools.” Although the transfer of a number of documents are alleged, there is little in the nature of the Trade Secret alleged. HCS explains the Trade Secret transfer as follows:

In her email [response to Trizetto’s request] Ms. Jones included numerous documents related to HCS’s procedures for implementing a new carrier client. This information is necessary to better understand the range of services provided by a sales automation provider and how such a provider works with a carrier to implement those services. [TriZetto] wanted to know this information so it could coordinate how [TriZetto] would complete a coordinated implementation with such a company’s front-end sales automation application and [TriZetto’s] back-end core administrative platform. In the diagram in Exhibit E to the Everett Declaration, on the left side, is a list of items needed for “enrollment Mgr: Installation Guide,” including an “Implementation Guide,” and the insight provided by HCS (as described above) could be used by [TriZetto] in order to provide instruction to a sales automation vendor and health carrier on achieving a coordinated implementation with Enrollment Manager.

Appendix 1 at ¶ 26.

Here again, HCS fails to identify the “Trade Secret” with any specificity. As the court reads the narrative, there no description of what the information was, or of a direct connection between the information provided and any specific product, including the “Implementation Guide.” The narrative only alleges that the “insight” provided by HCS “could be used by TriZetto in order to provide instruction to a sales automation vender [presumably an HCS competitor] on achieving a coordinated implementation with Enrollment Manager.” Reading the narrative as a whole, what emerges is the allegation that HCS helped TriZetto understand the front-end systems requirements so that TriZetto would be able to work more productively with HCS’s competitors.

If there is a trade secret here, HCS has failed to describe it with enough clarity to support a claim for trade secret misappropriation.

5. Trade Secrets Alleged in Masciopinto Reply Declaration

To the extent it alleges additional Trade Secrets, the Masciopinto Reply Declaration focuses on the contents of the QuoteToCard Services Reference 1.10. TriZetto refers to this document as “Service Guide for the Q2C Manager” (hereinafter, the “Service Guide”). The Masciopinto Reply Declaration alleges three additional Trade Secrets, again categorized under the heading of Conception and Design, Rating and Workflow. The first of the three alleged Trade Secrets alleges that the Table of Contents of the Service Guide contains a trade secret that consists of a “[description of [the] conception architecture for *1025creating [an] integrated end-to-end solution.” Masciopinto Reply Dec. at 1:28-2:1. The second of the alleged Trade Secrets, categorized under the heading of Rating, alleges that the Service Guide contains HCS Trade Secrets contained in the “Description of EnrollQTCFamily interface” which “includes new rate overriding features” and “facilitates loading more complex rate structures into Facets® from the sales front end (e.g. HCS).” The Masciopinto Reply Declaration also alleges, with regard to the Rating category, that the Service Guide describes the “rateLoad interface and service” which is a new service with QuoteToCard and is related to the “group Rate Load.” The last of the three Trade Secrets set forth in the Masciopinto Reply Declaration is alleged under the heading of Workflow. HCS alleges that the Service Guide describes the “Trigger QTCAction interface” which “is a new service with QuoteToCard to enforce validation on a group before being submitted to QTC.” Masciopinto Reply Dec. at 2:10-16. HCS alleges that the need for the TriggerQTCAction was “defined early on by HCS” and that the “need for override capabilities were also indicated early in the QuoteToCard project by HCS.” Id.

The Service Guide is a document prepared by TriZetto that describes software that TriZetto claims it wrote and owns. Nothing in HCS’s Reply brief or in the Masciopinto Reply Declaration contradicts TriZetto’s claim of authorship and ownership of the software described in the Service Guide. Consequently, the HCS cannot claim that the Service Guide itself is HCS’s trade secret, but HCS must point with the previously discussed specificity at the trade secrets are HCS claims belong to it. As above, HCS’s contention that the Service Guide is, or contains, Trade Secrets fails first for lack of specificity and fails in addition because the information that is actually disclosed by the Service Guide does not qualify as trade secret information. The court has reviewed the Service Guide and concludes that the portions of the Reference that HCS references (other than the table of contents) consists of tables which describe for each subroutine each data element, the type or format of each element, whether the element is optional or required, and a short description of the data element. The information referenced by HCS (including the table of contents) is information that would be evident to anyone interacting with the QuoteToCard system. As such, the information transmitted by the Reference is not trade secret information as discussed above.

The court concludes HCS has failed to allege the existence of information it owns that would qualify as trade secret information.

C. Misappropriation

Although no instance has been identified where HCS might have adequately described a Trade Secret, it is assumed for purposes of the following analysis that one or more Trade Secrets have been identified. The next question is whether any can be said to have been misappropriated. California’s version of the UTSA describes misappropriation in terms that encompass both direct and indirect misappropriation. Because the relationship between HCS and TriZetto is direct, the following portions of California Civil Code section 3426.1 that include the definitions of direct misappropriation are relevant to this inquiry:

(2) Disclosure or use of a trade secret of another without express or implied consent by a person by a person who:

(A) Used improper means to acquire knowledge of the trade secret; or

(B) At the time of disclosure or use, knew or had reason to know that his *1026or her knowledge of the trade secret was:

(ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use.

Id. Misappropriation “is defined by the Uniform Act as [improper] acquisition of a trade secret or disclosure of a trade secret or use of a trade secret. ([Cal. Civ.Code] § 8426.1, subd. (b)(1) & (2).)” Glue-Fold, Inc. v. Slautterback Corp., 82 Cal.App.4th 1018, 1025, 98 Cal.Rptr.2d 661 (1 Dist. 2000) (italics in original). “Improper means” of acquisition is defined to include “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Reverse engineering or independent derivation alone shall not be considered improper means.”

From the foregoing, it is evident that three possible constructions of allegation of misappropriation are possible within the context of the facts of this ease. Either:

(1) HCS can allege that TriZetto obtained trade secrets by improper means; or

(2) HCS can allege that TriZetto obtained the secrets lawfully but disclosed the trade secrets under conditions that gave rise to a duty to maintain secrecy; or

HCS can allege that TriZetto obtained the secrets lawfully but used the trade secrets under conditions giving rise to a duty to limit their use.

1. Misappropriation by Improper Means

While HCS’s motion for preliminary injunctive relief does not explicitly state their theory of misappropriation, it appears clear that there is no allegation that TriZetto obtained the Trade Secrets by improper means. The parties acknowledge that the Agreement authorized the parties to disclose to each other and to receive from each other trade secret information for the purpose of developing the interface capability. HCS does not allege that TriZetto entered into the Agreement with the intent to later abrogate the exclusivity provisions. Consequently there is no allegation of promissory fraud or any other claim that would void the Agreement ab initio. Although HCS alleges that TriZetto formed the intent to terminate the Agreement a week or two before it did, there is no allegation that TriZetto actually violated any term of the Agreement prior to its termination by TriZetto.

Since all of the information that was acquired by TriZetto was acquired according to the terms of the Agreement, there is no doubt that TriZetto did not misappropriate HCS’s Trade Secrets by improper means.

2. Misappropriation by Unlawful Disclosure

As previously noted, the Agreement does not define “Trade Secret” at all. Although the Agreement defines “Confidential Information,” it does not do so in a way that enlarges the category of trade secret beyond its statutory or common law boundaries.5 Nor is there any provision *1027apparent to the court that defines disclosure. Thus, the relevant questions are what qualifies as disclosure under common law and did TriZetto use such a means to transmit trade secret information to another?

HCS’s motion for preliminary injunction explicitly contends that injunctive relief is available to prevent threatened disclosure of trade secrets. See Motion at 16:24-17:7 (citing Wyndham Resort Dev. Corp. v. Bingham, 2010 WL 2720920 (E.D.Cal. 2010) at *6; Cal. Civ.Code § 3426.2(a); and Central Valley General Hosp. v. Smith, 162 Cal.App.4th 501, 527, 75 Cal. Rptr.3d 771 (2008)). HCS contends it is facing the threat of disclosure of the Integrated Solution product that is described as the “QTC Manager.” HCS alleges its trade secrets, including two or three of the “To” interfaces are “embodied in” the QTC Manager which TriZetto is alleged to have renamed “Enrollment Manager” in preparation for marketing to HCS’s competitors. HCS’s contends its Trade Secrets will be disclosed in the process of the marketing of Enrollment Manager to HCS’s competitors. In its reply brief HCS shifts its emphasis to a document that HCS alleges TriZetto has, or is prepared to, distribute to HCS’s competitor, Connecture. HCS describes the document as “a 343-page technical blueprint of the HCS-[TriZetto] project containing HCS’s trade secrets on every aspect of the project.” Reply at 1:7-8.

HCS’s allegation that TriZetto threatens disclosure of HCS Trade Secrets and the allegation that TriZetto has or will disclose HCS Trade Secrets by disclosing the contents of the Service Manual are different in that the second allegation postulates a specific means of disclosure and the first does not. HCS’s generalized assertion that TriZetto’s efforts to market Enrollment Manager will result in the disclosure of HCS’s trade secrets leaves it to the court to infer how such disclosure would occur. While injunctive relief is available for threatened disclosure of trade secrets, a court cannot presume that such disclosure is inevitable based only on the fact of a business association between the defendant and the plaintiffs rivals. See Whyte, 101 Cal.App.4th at 1458, 125 Cal. Rptr.2d 277 (inevitable disclosure doctrine is not the law in California). Where the disclosure consists of a computer program, the only inference that can be drawn is that there will be a transfer of information about the program’s functionality, not about the source code or any trade secrets embodied in the source code. See Silvaco, 184 Cal.App.4th at 228-229, 109 Cal.Rptr.3d 27 (6 Dist. 2010) (using a computer program provides no information as to how it was programmed, only what it does).

Because the court cannot presume the transfer of trade secret information occurs simply because TriZetto possesses it and TriZetto’s actual or potential customers do not, and because the transfer of or access to compiled software alone does not imply the transfer of trade secrets, HCS must satisfy its burden by stating with some specificity how the disclosure of trade secrets is threatened. HCS cannot meet this burden merely by making blanket assertions that Enrollment Manager or some other TriZetto product embodies HCS Trade Secrets and TriZetto’s efforts to market these products to others threatens disclosure.

With regard to the actual or threatened disclosure of Service Guide, the dispute between the parties is more direct. HCS contends that the Service Guide contains HCS Trade Secrets “on every aspect of the project” and TriZetto contends the Service Guide contains no HCS trade secrets at all. There is no question that the contents of the Service Manual was and/or will be disclosed to whomever TriZetto has or will market its enrollment manager *1028product to. The question is therefore whether the Service Manual contains any trade secrets. The court has already answered this questions in the negative. The Service Manual is, so far as the court can tell, contains a description of what someone operating the program would experience and is therefore not a trade secret. Of the three possible means of misappropriation, unlawful disclosure most strongly suggests injunction as the most appropriate form of relief because the potential harm is both difficult to contain and difficult to compensate by damages. However, to the extent the court can discern the identity of the alleged Trade Secret from HCS’s pleadings and oral argument, all the court can conclude is that HCS’s is threatened by the disclosure of a computer program written by TriZetto that is identical to the program HCS developed with TriZetto. As the court has repeatedly pointed out, while computer source code is a trade secret, the way it operates is not. Presumably HCS will market QuoteToCard to its customers, revealing in the process how the program works, looks, performs and the purpose behind it. TriZetto will presumably do the same. No trade secrets will be divulged in the process because the way the programs work is public. If HCS is to prevail on their claim of misappropriation by unlawful disclosure, HCS will need to be far more specific with regard to the nature of its trade secret, how HCS comes to own the trade secret and how disclosure it threatened.

3. Misappropriation by Use

As stated in PMC, Inc. v. Kadisha, 78 Cal.App.4th 1368, 1383, 93 Cal. Rptr.2d 663 (2000), “Employing the confidential information in manufacturing, production, research or development, marketing goods that embody the trade secret, or soliciting customers through the use of trade secret information, all constitute use.” Id. (quoting Cappa v. CrossTest, Inc., 2008 WL 821637 (Cal.App. 1 Dist. 2008) at *12). In JustMed, Inc. v. Byce, 600 F.3d 1118 (9 Cir.2010), the Ninth Circuit noted with approval the definition of use provided in the Restatement (Third) of Unfair Competition:

There are no technical limitations on the nature of the conduct that constitutes “use” of a trade secret for purposes of the rules stated in Subsection (b) [of Idaho’s version of the UTSA]. As a general matter, any exploitation of the trade secret that is likely to result in injury to the trade secret owner or enrichment to the defendant is a “use” under this Section. Thus, marketing goods that embody the trade secret, employing the trade secret in manufacturing or production, relying on the trade secret to assist or accelerate research or development or soliciting customers through the use of information that is a trade secret all constitute “use.”

Restatement (Third of Unfair Competition § 40, cmt. c (1995) (citation omitted)). The term “use” in the in the context of misappropriation of a trade secret generally contemplates some type of use that reduces the value of the trade secret to the trade secret owner.

JustMed, 600 F.3d at 1130.

The importance of the “use” theory of misappropriation in this action is that it appears to be the only theory under which HCS could state a claim if they were able to identify any trade secret that they possessed that was transferred to TriZetto. The Silvaco court observed, “[t]rade secret law, in short, protects only the right to control the dissemination of information.” 184 Cal.App.4th at 221, 109 Cal.Rptr.3d 27 (italics in original). HCS tacitly admits that it does not “own” any of the software written by TriZetto. Absent formal “ownership” of TriZetto’s side of the QuoteToCard/Enrollment Manager software, how does HCS purport to control the dissemi*1029nation of information that TriZetto claims (without opposition) it “owns?” The phrases HCS has used repeatedly to describe its relationship to TriZetto’s software is that HCS’s Trade Secrets, know-how, trade experience, insights, and business acumen were “incorporated into,” “embodied in,” or determined some aspect of, the software that was written by TriZetto. Thus, the connection point between the legal theory of misappropriation of trade secrets by use and HCS’s motion for preliminary injunction is the allegation that TriZetto is about to engage in the “marketing of goods that embody” HCS’s Trade Secrets.

Just as the word “use” does not appear to be bound by a specific technical definition, so too the word “embody” does not appear to have a particular technical definition in the context of trade secrets. Given that what is at stake is the right of economic control over a valuable product that formally belongs to TriZetto, the court feels it should be circumspect with regard to the scope of meaning it imparts to the word “embody.” If a Westlaw search is conducted to find cases within the Ninth Circuit that use the word “embody” (or related words) within the same sentence as “trade secret,” about seventy-seven cases are returned. Although the court admits it has not reviewed each of those, the court cannot find a single case where the term “embodied” is taken in an abstract sense to mean something like influenced, directed, or reflected in.

What the court concludes from its review of the relevant case authority is that the word “embodied” does not modify the meaning of “use,” but rather illustrates one possibility of “use.” “One clearly engages in the ‘use’ of a secret, in the ordinary sense, when one directly exploits it for his own advantage, e.g., by incorporating it into his own manufacturing technique or product.” Silvaco, 184 Cal.App.4th at 224, 109 Cal.Rptr.3d 27 (italics added). The Silvaco court’s use of the word “directly” leads this court to the conclusion the word “embody” is to be taken in its more literal sense to mean to “place bodily into.” Thus, a trade secret embodied in the product of a misappropriating party is “used” if it is incorporated as such in the resulting product.

HCS relies heavily on Ajaxo, Inc. v. E*Trade, Inc., 135 Cal.App.4th 21, 37 Cal. Rptr.3d 221 (6th Dist.2006) to support its contentions that the items HCS lists as Trade Secrets are actually trade secrets. Ajaxo is distinguishable from the instant case in a number of important respects,6 but the case does help clarify what is meant by the “use” of a trade secret through its “embodiment” in the misappropriator’s product. In Ajaxo, the plaintiff had developed and written software to enable users of wireless mobile devices to engage in stock trading. Id. at 27, 37 Cal.Rptr.3d 221. In the process of marketing the software product to the defendants, the plaintiff, pursuant to a mutual nondisclosure agreement, disclosed to the *1030defendant a number of discrete, highly specific facts about plaintiffs software and provided to the defendant a technical binder that contained additional specific technical information concerning the plaintiffs software product. See Id. at 227-229 (plaintiff provided answers to technical software questions such as “buffering the cookie,” “sustaining the session,” “destruction of the session,” “load balancing” and “other matters”).

In Ajaxo, unlike the instant factual context, the defendant took highly specific technical information concerning a computer program that was created and owned by the plaintiff and directly used that information (through disclosure to a third party) to essentially copy the program capability that belonged to the plaintiff in that case. Here, there is little doubt that TriZetto made use of HCS’s knowledge of how the front end of healthcare insurance works generally and, to some extent, how HCS’s data inputs and outputs work. However, HCS has failed to show how definite pieces of its knowledge, pieces that themselves qualify as trade secrets, recognizably show up in, or are “embodied in” TriZetto’s programming. At its core, HCS’s argument is a contention that, because HCS provided generalized information that shaped or influenced some portions of the architecture of TriZetto’s product, Enrollment Manager, HCS has the right under California’s UTSA to control what TriZetto does with its product. The court cannot find, and HCS has not provided, any case or statutory authority that would allow this comet to impose so sweeping a restriction based on such an attenuated relationship between HCS’s knowledge and TriZetto’s product.

The court concludes that HCS has failed to allege facts sufficient to show that it has a high likelihood of success on the merits of its claims against TriZetto on its claims under the California UTSA.

II. Threat of Irreparable Injury

HCS asserts two bases for a finding of irreparable harm. The first is a provision in the Agreement whereby the parties agree to injunctive relief in the event there is a transgression of the restrictive covenants by the other party regarding the handling of confidential information. As provided in subsection 11.3 of the agreement, the parties agree that remedies available to the party that suffers the transgression “are inadequate at law.” Of some significance, the section of the Agreement that stipulates that remedies are inadequate at law — section 11 — deals with the duties of each party to not disclose the confidential information of the other. So far as the court can discern, section 11 of the Agreement does not deal with the unauthorized use of confidential use of information. Thus, to the extent HCS seeks to impose injunctive restrictions on TriZetto’s efforts to market its Enrollment Manager software based on the remedies provision of the Agreement, that effort is undercut to the extent HCS is unable to allege that TriZetto’s activities disclosed, as opposed to used, any of HCS’s Trade Secrets. In any event, the court is in agreement with TriZetto’s contention that private contractual provisions do not determine the legal conclusions. TriZetto cites DVD Copy Control Ass’n v. Kaleidescape, 176 Cal.App.4th 697, 725, 97 Cal.Rptr.3d 856 (2009) for the proposition that the court is not bound by a private agreement and should not use the private agreements of parties to determine a legal conclusion. The court will continue with its own determination of the issue of whether HCS suffers the threat of irreparable harm as a consequence of TriZetto’s actions.

In its reply brief, HCS contends that it will suffer irreparable harm in the absence of injunctive relief because: (1) TriZetto *1031will disclose HCS’s trade secrets to HCS’s competitors, (2) HCS will lose competitive advantage, and (3) HCS will suffer loss of market status and loss of customer good will.

As discussed above, unless HCS can point to an actual trade secret in the service manual or in some other document that will be provided directly to a competitor, there is no basis upon which the court could find irreparable harm resulting from disclosure. Pursuant to Silvaco, when the Source code for the Enrollment Manager or QTC manager program is compiled and operational, any feature of its functionality is not a trade secret because it is publically expressed in program operation. There is no plausible argument that TriZetto would have cause to disclose its source code to any other party in order to market its Enrollment Manager software. HCS has not indicated any other means by which disclosure could occur except through the Service Manual or through marketing of the Enrollment Manager.

With regard to competitive advantage and loss of market status and goodwill, there is no dispute that such harms, where they occur or threaten to occur, do warrant injunctive relief because such harms are inestimable. However, under the facts of this case, there is little to suggest that such losses would be the result of misappropriation of trade secrets as much as the loss of exclusivity under the Agreement. HCS’s only expectation of competitive advantage in the marketplace arises from the exclusive marketing provision contained in the Agreement. Loss of exclusivity is therefore a matter of breach of agreement, not trade secret misappropriation. Thus, it appears that HCS’s loss could well be inadequately compensable at law but injunctive remedy would nonetheless be unavailable in this court because the harm arises from breach of contract, not trade secret misappropriation. In addition, HCS, if it were able to enforce the exclusivity provisions of the Agreement for the full initial term of the Agreement, would only be entitled to prohibit TriZetto from marketing Enrollment Manager to HCS’s competitors for about three years. HCS does not allege that the universe of companies that provide front end computer software in the same marketplace as HCS is vast. Over a limited period of time, the court cannot conclude that HCS, should it ultimately be successful in proving trade secret misappropriation, would not be able to accurately assess the loss of its anticipated share of market revenue from the misappropriation.

HCS also asserts that loss of customer goodwill would result from TriZetto’s misdeeds, but fails to explain how that is so. HCS achieved the interface capability it sought and may presumably offer the QuoteToCard functionality to its customers. At worst, HCS will be able to offer a product the same or similar in function to the products that could be marketed by competing companies that by TriZetto’s Enrollment Manager. The court is at a loss to understand how being on an equal (although not exclusive) marketing footing would result in a loss of the goodwill of existing or potential customers.

The court concludes that HCS has failed to show a reasonable probability of success on the merits of its action for trade secret misappropriation and has failed to adequately show that it faces the threat of irreparable harm as a result of TriZeto’s actions. The court therefore finds preliminary injunctive relief is not warranted.

THEREFORE, it is hereby ORDERED that HCS’s Motion for Preliminary Injunction is DENIED.

IT IS SO ORDERED.