Plaintiffs' Opposition to Summary Judgment and BT's Response

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.

In response, BT filed this brief in support of summary judgment. The brief focuses on plaintiffs' choice to pursue their claim of infringement solely on the grounds of striking similarity and the extremely high burden that theory entails. Accordingly, the brief details the deficiencies in the conclusions of plaintiffs' experts regarding striking similarity and explains that even if fully credited, plaintiffs' experts fail to show striking similarity so as to preclude independent creation. Further, the brief explains that BT has presented affirmative evidence of independent creation, and this evidence should suffice to dismiss the action.