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.
Some jurisdictions, including the Southern District of New York, do allow access to be inferred, but only in cases in which two works are so "strikingly similar" that the very existence of the earlier work precludes the possibility of independent creation. Since plaintiffs have failed to show such a degree of similarity between "Aparthenonia" and "Bust Dat Groove," and plaintiffs have brought forth no evidence of access; the motion argues that the cause against BT must be dismissed.
The full text of the brief in support of summary judgment can be viewed here.