Every now and then one reads an opinion that is so right, you think "that's how it should be done." Mowry v. Viacom International, Inc. 2005 WL 1793773, 2005 U.S. Dist. LEXIS 15189 (S.D.N.Y. July 29, 2005)(03 Civ. 3090 (AJP), an 18-page opinion issued by Judge Andrew Peck, Chief Magistrate Judge of the SDNY, is one of those opinions. (The case was decided under 28 USC sec. 636(c), for cognoscenti).
Mowry is a bread and butter dispute: someone writes an unpublished screenplay and claims that a well-known movie (here "The Truman Show") infringed. There is no evidence of access. An expert is hired and attempts to establish sufficient evidence of striking similarity through a comparison of the two works.
What makes Mowry so special is solely Judge Peck's (typical) extraordinary thoroughness, clear reasoning, and writing. His opinions are usually a precis of the relevant field, and Mowry is of a piece. If you want to find the latest (as well as many older but still relevant) cites to any issue on infringement (the discussion of "industry access" is excellent), here is your handbook.
A Judge Peck opinion usually has some sly, sardonic humor, present here in describing plaintiff's linguistics expert: "Mowry points to no case in which an expert using cladistic or phylogenetic tree analysis has been used to show striking similarity (or even substantial similarity) between literary works, and the Court's research has found no such cases. While it is true that there must be a first time for an expert methodology to be accepted by the courts, this is not the case."
Bravo all around. I urge everyone to read and consult the opinion.