Status quo is goldilocks- it gives injunctions when obvious infringement has occurred, but balances interests in more frivolous claims

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

In the past decade, the eBay decision has had a considerable impact on the issuance of injunctions in copyright cases. The previously common view that any violation of an exclusive right entitles copyright owners to injunctive relief because that violation, like a trespass to land, constitutes irreparable harm cannot be reconciled with eBay’s conception of exclusive rights and remedies as “distinct” from one another.538 eBay has meant that copyright owners now bear a much stiffer burden of proof when seeking injunctive relief. It is no longer enough to show actual or likely success on the merits. The longstanding presumption of irreparable harm is no more, and plaintiffs who fail to offer meaningful proof of such harm are likely to be denied this remedy. It is fair to say that eBay resurrected irreparable harm as a key factor in judicial decisions about whether to exercise discretion to order this remedy for infringement. Even so, Campbell’s endorsement of presuming irreparable harm in “simple piracy” cases (that is, when the defendant has made exact or nearexact copies of the plaintiff’s work that is undercutting the market for legitimate copies) should perhaps be revived as a reasonable exception to eBay’s general rule against presumptions. Courts are also more attentive now to hardships that injunctions impose on defendants as a balancing factor. Defendants have more opportunity to counter plaintiffs’ arguments about hardships. The public interest, however, has so far played a lesser role in the posteBay cases, except in close or novel issue cases. Going forward, courts should pay closer attention to the effects of injunctive relief on public interests and consider harms that injunctions would cause to innocent third parties as part of the public-interest factor rather than in the hardship-balancing factor. The burdens on judges are greater now also. They cannot just invoke the old presumption of irreparable harm and ignore the hardship-balancing and public-interest factors. They are required to explain their reasoning as to each of the four factors and describe how they have weighed factors together when some favor the plaintiff and some the defendant. The Supreme Court’s decision in Campbell may have helped to pave the way for the ruling in eBay. However, as this Article has shown, Campbell’s note 10 had much less impact on court decisions in the years leading up to the eBay decision than one might have expected from one of the foundational cases in copyright jurisprudence. At the very least, eBay’s reliance on Campbell and other copyright cases seemingly clarified the relevance of its holding on requests for injunctive relief in copyright disputes. Overall, eBay has had a positive effect on judicial consideration of injunctive relief in copyright cases. Before eBay, courts almost automatically issued injunctions when copyright owners had shown that the defendants had likely or actually infringed their rights. They too easily presumed from this finding that the infringement or likely infringement had caused irreparable harm without considering a balancing of hardships or the public interest. Yet, eBay has rarely hindered the issuance of injunctions in simple piracy cases. This is as it should be.