I. The Applicable Standard for
Injunctive Relief: Demise of the
Presumption of Irreparable Harm
Section 502(a) of the Copyright Act authorizes a court to issue “tem-
porary and nal injunctions on such terms as it may deem reasonable
to prevent or restrain infringement of a copyright.”1 Until recently, the
widely followed rule was that if a copyright owner’s rights were threat-
ened or infringement established, the irreparable harm required to
obtain injunctive relief was presumed. Thus, preliminary relief often
required only a showing of likelihood of success on the merits,2 and a
1. 17 U.S.C. § 502(a). No injunction is available in actions for copyright infringement
against the federal government or its agents (though limited damages are available).
Id.; 28 U.S.C. § 1498(b). Individual state agents may be subject to prospective injunc-
tive relief for copyright infringement under the Ex Parte Young doctrine. Chavez v. Arte
Publico Press, 157 F.3d 282, 291 (5th Cir. 1998). But states are immune from copyright
liability. In 1990, Congress adopted 17 U.S.C. § 511(a), which purported to abrogate state
sovereign immunity for copyright liability, but that provision has been held unconsti-
tutional. National Ass’n of Bds. of Pharmacy v. Bd. of Regents of Univ. Sys. of Georgia,
633 F.3d 1297 (11th Cir. 2011).
2. See, e.g., Brookeld Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1066
(9th Cir. 1999); Richard Feiner & Co. v. Turner Entm’t Co., 98 F.3d 33, 34 (2d Cir. 1996)
(“When a plaintiff establishes a prima facie case of copyright infringement, irreparable
harm is presumed.”); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240,
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plaintiff could obtain a permanent injunction by showing a substantial
likelihood that the defendant would infringe in the future.3
The longstanding “presumption of harm” standard, however, was
effectively ended in 2006 by eBay Inc. v. MercExchange, LLC, where
the Supreme Court stated it is not the case “that an injunction auto-
matically follows a determination that a copyright has been infringed,”
and that requests for injunctions must be evaluated without resort
to categorical presumptions.
4
Although eBay evaluated an injunction
under the Patent Act, the decision sets out the elements a plaintiff
must show to obtain a permanent injunction in any type of case,
including copyright cases:
A plaintiff must demonstrate: (1) that it has suffered an irrepa-
rable injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the pub-
lic interest would not be disserved by a permanent injunction.5
Even when this test is satised, the decision to grant an injunction still
rests “within the equitable discretion of the district courts[.]”6
In Winter v. Natural Resources Defense Council, the Supreme Court
1254 (3d Cir. 1983) (“A copyright plaintiff who makes out a prima facie case of infringe-
ment is entitled to a preliminary injunction without a detailed showing of irreparable
harm.”); Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 620 (7th Cir.
1982) (“Irreparable injury may normally be presumed from a showing of copyright
infringement.”).
3. See, e.g., Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 800–01 (4th
Cir. 2001); Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1555 (10th Cir.
1996); Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, 1349 (8th Cir. 1994); MAI Sys.
Corp. v. Peak Computer, Inc., 991 F.2d 511, 520 (9th Cir. 1993) (“a permanent injunction
will be granted when liability has been established and there is a threat of continuing
violations”); Walt Disney Co. v. Powell, 897 F.2d 565, 567 (D.C. Cir. 1990); Pac. & S. Co.
v. Duncan, 744 F.2d 1490, 1499 (11th Cir.1984).
4. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 392–93, 126 S. Ct. 1837, 164 L. Ed.
2d 641 (2006) (citing New York Times Co. v. Tasini, 533 U.S. 483, 505, 121 S. Ct. 2381,
50 L. Ed. 2d 500 (2001)).
5. eBay, 547 U.S. at 391.
6. eBay, 547 U.S. at 394.
CHAPTE R 6
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