eBay decision has led to more effective consideration of patent applicability and remedies

Richard M. Sherman Distinguished Professor of Law, Berkeley Law School

Withholding Injunctions in Copyright Cases: Impacts of eBay; 63 Wm. & Mary L. Rev. 773 (2022), https://scholarship.law.wm.edu/wmlr/vol63/iss3/3

Having canvassed the case law on denials of injunctive relief in three different periods—before Campbell, from Campbell to eBay, and post-eBay—the Article turns now to considering, first, whether the post-eBay copyright case law is consistent with traditional principles of equity, and second, why eBay seems not to have opened the floodgates to damages-only remedies for copyright infringement. Section A suggests that even if eBay’s critics are right that the Court deviated from certain traditional principles of equity, courts in the post-eBay copyright infringement cases have only rarely been led astray because of these mistakes. If anything, the eBay decision has had corrective effects on how courts in copyright cases assess whether to issue injunctions. Section B discusses several reasons why courts are still reluctant to withhold injunctive relief when infringement has been found or found to be likely, eBay and its progeny notwithstanding. A. Effects of eBay’s Departure from Traditional Equitable Principles Private law and remedies scholars have heavily criticized the eBay decision for what they charge are its numerous departures from traditional principles of equity when considering whether to issue injunctions.476 One article criticized eBay for having “swept aside long-settled presumptions about when injunctions should issue,” presumptions that courts have long used to “structure or streamline” injunction analyses.477 Especially criticized has been eBay’s rejection of a presumption of irreparable harm when IP rights have been infringed.478 The presumption of irreparable harm has traditionally performed a useful burden-shifting function.479 Once plaintiffs showed that their rights had been or were likely infringed, this presumption shifted the burden onto defendants to offer rebuttal evidence.480 The Campbell decision is more compatible with these principles than eBay in its assertion that a presumption of irreparable injury is sound in “simple piracy” cases.481 Although courts continued to support this presumption in the first several years after eBay, the predominant view now is that eBay overturned that presumption, as Part III.B showed. However sound this criticism may be, eBay’s repudiation of this presumption has had largely salutary effects in copyright cases because courts prior to eBay had treated the presumption as though it was virtually irrebuttable.482 It was akin to the Federal Circuit’s categorical pro-injunction rule in patent cases that the Court overturned in eBay.483 Courts in copyright cases are now more willing to make a meaningful assessment about what harms have resulted from the infringement, whether they can be remedied through monetary relief, and whether future infringements are likely before deciding whether the irreparable harm evidence favors or disfavors injunctive relief.484 During the period in which the hard presumption prevailed, courts had no need to articulate what kinds of harms from copyright infringement were irreparable and why.485 The demise of that presumption has meant that courts have had to start explaining why some harms are indeed irreparable.486