IP/TECH UPDATE: Ninth Circuit Restricts Availability of Injunctive Relief for Copyright Infringement

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Five years ago, the United States Supreme Court restricted a patent infringement plaintiff’s ability to obtain an injunction by eliminating the “automatic presumption” of irreparable harm. (eBay Inc. v. MercExchange, L.L.C. (2006) 547 U.S. 388.) Now, following that decision, the Ninth Circuit has issued a similar ruling in the realm of copyright infringement.

A preliminary (before trial) injunction is a court order that usually aims to stop specific conduct, including infringement of intellectual property rights. Before ordering a preliminary injunction, courts have historically applied long-standing criteria requiring a plaintiff to show, among other things, a likelihood of suffering “irreparable harm” in the absence of injunctive relief. Some Circuit courts developed an exception to this required showing, essentially holding that an intellectual property owner who demonstrated likely success on its infringement claims did not have to prove the likelihood of “irreparable harm” resulting from the infringement to obtain an injunction. Instead, the infringement alone led to a presumption of harm, and an injunction would issue. In the patent realm, the presumption of harm was eliminated by the United States Supreme Court’s landmark decision in eBay. Because the eBay decision focused on patent infringement, its application to copyright law was unclear. The Ninth Circuit resolved that uncertainty in its August 22, 2011 copyright decision Flexible Lifeline Systems, Inc. v. Precision Lift, Inc. (9th Cir. 2011) 2011 U.S. App. LEXIS 17462.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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