Stanford Center for Internet and Society

After the Court reserved judgment on BT's summary judgment motion pending his recreation of "Aparthenonia" from scratch, plaintiffs moved to have the Court reconsider its decision under Local Rule 6.3. Plaintiffs argue that the Court did not have the authority to ask BT to recreate "Aparthenonia" and that in doing so the Court misconstrued or ignored the applicable law. But the motion (full text available here) fails to explain why the Court wouldn't have the authority to ask for evidence which would be dispositive of the cause of action and also fails to raise any issues that were not fully explored in the summary judgment briefs and oral argument.

Plaintiffs' filed their opposition to BT's motion for summary judgment on October 12, 2006 (available here). Instead of arguing the issue of access, plaintiffs abandoned that argument and staked their entire case on the theory that "Aparthenonia" and "Bust Dat Groove" are so "strikingly similar" that access (and copying) can be inferred. To prevail under this theory, plaintiffs would have to show that the works are so similar that the second work could only be created by copying the first--that the similarities between the two works preclude even the possibility of independent creation.

On September 25, 2006, the Clinic and co-counsel at Kirkland Ellis moved for summary judgment on behalf of BT. The primary thrust of the motion centers on plaintiffs' failure to show any plausible theory of access to plaintiffs' work. Plaintiffs bear the burden of showing copying in order to succeed on their infringement action and--absent direct evidence of such copying--must be able to show access to that work.