By Until recently, if a plaintiff in a copyright infringement case sought an injunction against continued infringement, a reasonable showing that plaintiff was likely to prevail on the merits of the infringement claim gave rise to a presumption of irreparable harm, which is a necessary element a plaintiff must prove in order for a court to issue an injunction. However, in early August 2011, the Ninth Circuit in Perfect 10, Inc. v. Google, Inc., citing the United States Supreme Court decision in eBay Inc. v. MercExchange, L.L.C., stated that this presumption of irreparable harm no longer exists.
Perfect 10, Inc. sought a preliminary injunction against Google for alleged copyright infringement. Perfect 10 creates and copyrights photographs of nude models for commercial distribution on its website, perfect10.com. Access to the website is limited to members who pay a monthly fee.
Perfect 10 alleged that Google’s web search and caching feature allows internet users to access Perfect 10’s copyrighted images for free, which constitutes copyright infringement. Perfect 10 also alleged that because the images are available through Google’s search engine, people are unwilling to pay for a subscription to view the images. This has caused Perfect 10 to lose over $60 million in revenue over the last fifteen years.
The district court in Perfect 10 rejected Perfect 10’s arguments and denied injunctive relief, finding that the company had failed to demonstrate that it was likely to suffer irreparable harm if the court did not issue an injunction.
A plaintiff seeking a preliminary injunction must show:
(1) that plaintiff is likely to succeed on the merits; (2) that plaintiff is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in plaintiff’s favor; and (4) that an injunction is in the public interest.
Perfect 10 argued that because it had demonstrated a substantial likelihood of success on the merits, that the Court must presume that it will likely suffer irreparable harm in the absence of an injunction, citing a line of cases stemming from Apple Computer, Inc. v. Formula International, Inc., where the Ninth Circuit held that a showing of a reasonable likelihood of success on the merits raises a presumption of irreparable harm for purposes of a preliminary injunction.
The Ninth Circuit, however, citing eBay, Inc. v. MercExchange, L.L.C, stated that the Apple Computer rule is no longer good law. In eBay, a 2006 patent infringement case, the United States Supreme Court stated that an injunction may issue only in accordance with traditional equitable principals, and not based on presumptions or categorical rules. The use of presumptions, the Supreme Court opined, would be “a major departure from the long tradition of equity practice.” The Court cited language in the Patent Act which provided only that an injunction “may” issue in accordance with equitable principals.
Similarly, the Copyright Act provides that courts “may” provide injunctive relief on terms they may “deem reasonable to prevent or restrain infringement of a copyright.” The Ninth Circuit in Perfect 10 found this language to be permissive, stating that the language did not demonstrate congressional intent to depart from equitable principals in deciding whether to issue an injunction.
The Court stated that injunctive relief in copyright infringement cases must be analyzed on a case-by-case basis in accordance with traditional equitable principals, without the use of categorical rules or presumptions. eBay overruled Apple Computer and its progeny, effectively doing away with a Ninth Circuit rule which has persisted for 27 years. Now, a plaintiff’s burden of proof when seeking an injunction is slightly higher. Where a plaintiff in a copyright infringement case seeks injunctive relief, a plaintiff must demonstrate a likelihood of success on the merits of the copyright infringement claim, and must now also independently demonstrate that plaintiff will suffer irreparable harm if the court does not issue an injunction.