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.
BT's opposition to this motion was entered on November 30, 2006, and is available here. It points out that plaintiffs largely oppose this motion because proof of creation of "Aparthenonia" from scratch on BT's computer--without access to "Bust Dat Groove"--will necessarily result in dismissal of plaintiffs' claims. Under the standard chosen by plaintiffs, they bear the burden of showing such striking similarity between the two works that it precludes independent creation. Affirmative proof of BT's independent creation of "Aparthenonia" from scratch, however, would definitively show that plaintiffs cannot meet this burden. The opposition also demonstrates that plaintiffs' motion suffers from procedural defects, such as the fact that Local Rule 6.3 only applies to orders resulting in an actual judgment and that a moving party cannot use the motion for reconsideration to simply reargue issues already presented to the Court.