Tuesday, May 4, 2010

The Impact of eBay on Injunctive Relief in Copyright Cases

I wanted to pass along an article written by my friend Eleanor Lackman of Hogan Lovells about the applicability to copyright cases of the Supreme Court's 2006 opinion in eBay v. MercExchange, which held that an injunction should not automatically issue upon a finding of patent liability; rather, traditional equitable principles for granting injunctions "apply with equal force" in the patent context. Eleanor's article is particularly timely in light of the Second Circuit's decision last week in Salinger v. Colting, which, reversing the district court on this point, held that eBay does apply in copyright cases.


  1. Seems proper. The USSC themselves practically settled the issue in the decision.

  2. While permanent and preliminary injunctions share many attributes, there are some subtle differences in the legal standards employed.

    Given that this was a matter involving a preliminary injunction, and given that Winter v. Natural Resources Defense Council is (to my knowledge) the most recent SCOTUS pronouncement concerning preliminary injunctions, I have to wonder why...if MercExchange v. eBay ("eBay")answers the question so definitively...the SCOTUS in Winter v. Natural Resources Defense Council made no mention of eBay in the majority opinion, the dissenting opinion and the dissenting/concurring-in-part opinion.

  3. Because they followed the proper guidelines as laid out in ebay in Winter.

    Try reading the decision before asking stupd questions please.

    In reviewing the district court's modified preliminary injunction, the Ninth Circuit agreed with the district court's determination that NRDC had met its burden of proof to justify preliminary injunctive relief by showing four things: 1) a strong likelihood of success on the merits; 2) the possibility of irreparable injury; 3) the balance of hardships in its favor; 4) the advancement of public interest. NRDC at 703. In its decision, the Ninth Circuit reiterated an "alternative" approach to weighing these four factors: "a court may grant the injunction if the plaintiff demonstrates either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Freecycle Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir.2007); see also Earth Island II, 442 F.3d at 1158." Id. at 677.

    No need to cite precedent if everyone is in agreement as to what is to be done and already did it.

  4. Anon at 4:17,

    Perhaps you might want to consider reading Winter, which was directed specifically to preliminary injunctions and the requirements for such injunctions.

    Again, if eBay is controlling as some appear want to opine, it does seem a bit unusual that eBay was nowhere mentioned in the SCOTUS opinions...opinions that followed well after eBay. It does not necessarily follow that "irreparable harm" is the full equivalent of "inadequate remedy at law".


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