from the thank-you-perfect-10 dept
We’ve noted in the past that Perfect 10’s myriad lawsuits alleging copyright infringement against all sorts of companies haven’t resulted in many victories for the company, but have established a set of case law rulings that have been very helpful in defining clear exceptions within copyright law, which have been quite useful in other cases. The only really questionable Perfect 10 ruling I can think of is the one we just mentioned earlier this week, in which a court seemed to get confused concerning the difference between direct and indirect copyright infringement, but I’m hopeful that this will get sorted out soon enough.
However in a different Perfect 10 case, a part of its long and almost entirely failed campaign against Google, we have a fantastic appeals court (9th Circuit) ruling that could be quite a big deal, in reversing previous precedent and noting that a showing of copyright infringement does not automatically prove “irreparable harm,” and that it also should not mean an automatic preliminary injunction is applied in such cases (thanks to Eric Goldman for pointing us to the ruling).
The ruling is significant for a number of reasons. Obviously, for a court to change its position on things, it needs a good reason to do so and, here, the court relies on the very important Supreme Court ruling in the MercExchange case, in which it noted that defaulting to a preliminary injunction in patent cases did not make sense. Instead, a court should consider a variety of factors and whether or not there was real harm that required an injunction. In this case, the court has now applied the same reasoning to copyright law for the first time. This isn’t entirely surprising, since the MercExchange ruling by the Supreme Court actually relied somewhat on copyright law itself, but there had not yet been a clear ruling on whether the MercExchange decision applied to copyright. We did note, last year, that the Second Circuit appeals court had raised the question of whether or not MercExchange applied to copyright, and had sent the case back to a lower court to consider. In this case, however, we have a firm ruling (which also acknowledges that Second Circuit ruling) that MercExchange also applies to copyright:
We agree with the Second Circuit. As explained in eBay, the language of § 502(a) is permissive and evokes traditional equitable principles: ?[T]he Copyright Act provides that courts ?may? grant injunctive relief ?on such terms as [they] may deem reasonable to prevent or restrain infringement of a copyright.? ? 547 U.S. at 392 (quoting 17 U.S.C. § 502(a)). Nothing in the statute indicates congressional intent to authorize a ?major departure? from ?the traditional four-factor framework that governs the award of injunctive relief,? id. at 391, 394, or to undermine the equitable principle that such relief is an ?extraordinary and drastic remedy? that ?is never awarded as of right,? Munaf v. Green, 553 U.S. 674, 689-90 (2008) (internal quotation marks omitted). We therefore conclude that the propriety of injunctive relief in cases arising under the Copyright Act must be evaluated on a case-by- case basis in accord with traditional equitable principles and without the aid of presumptions or a ?thumb on the scale? in favor of issuing such relief.
And, more specifically, the court states directly (citations & quotation marks omitted for clarity):
In sum, we conclude that our longstanding rule that a showing of a reasonable likelihood of success on the merits in a copyright infringement claim raises a presumption of irreparable harm is clearly irreconcilable with the reasoning of the Court?s decision in eBay and has therefore been effectively overruled.
In other words, just showing copyright infringement no longer means a presumption of irreparable harm (in the Ninth Circuit, at least). Since many of us have argued for years that infringement does not automatically lead to harm, this ruling is big news.