In Peter F. Gaito Architecture, LLC v. Simone Development Corp., 2010 WL 1337225, 1 (2d Cir. April 5, 2010), the Second Circuit held for the first time that a district court may compare the registered copyrighted materials annexed to the complaint to the allegedly infringing materials, enter a finding of non-infringement as a matter of law, and throw the case out on a Rule 12(b)(6) motion for failure to state a claim.
Ordinarily the facts alleged on the face of a Rule 12(b)(6) motion are assumed to be true in the earliest stage of a litigation.
District courts within the Circuit had been throwing cases out for a while, using the Second Circuit's "good eyes and common sense" standard to determining whether any reasonable juror could find the infringing materials to be "substantially similar".
Although the court tried to limit the holding to the facts involving very dissimilar buildings, the holding is likely to have a much broader application.
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