(usual factual elements in determining the possibility of a copyright infringement in U.S. law).
I agree with you that it's possible in principle that copyright infringement would not be found even when there was evidence of access. But I think the courts would usually give the defendant a higher burden in that case. You can see in the Wikipedia article that there has been debate about whether access becomes more relevant when the similarity is greater and less relevant when the similarity is less (apparently the current Ninth Circuit standard on that is "no"?).
https://en.wikipedia.org/wiki/Substantial_similarity
(usual factual elements in determining the possibility of a copyright infringement in U.S. law).
I agree with you that it's possible in principle that copyright infringement would not be found even when there was evidence of access. But I think the courts would usually give the defendant a higher burden in that case. You can see in the Wikipedia article that there has been debate about whether access becomes more relevant when the similarity is greater and less relevant when the similarity is less (apparently the current Ninth Circuit standard on that is "no"?).