Last summer I mentioned the new law in the Ninth Circuit — or, as I insisted, the clarification of the existing law — to the effect that a copyright plaintiff is not entitled to a presumption of irreparable harm, and thus an injunction, merely upon a finding of infringement.
David Kalow and Milton Springut point out in the New York Law Journal that this has been the law in the Second Circuit since the 2010 decision in Salinger v. Colting — reported on here for other reasons. These lads usually represent plaintiffs, but their article is well balanced and worth taking a look at. Despite their typical position in copyright litigation, they’re not too broken up about this development, as they explain:
[I]n both copyright and trademark cases, the Second Circuit held that once likelihood of success was shown, there arose a presumption of irreparable harm. Thus, as a practical matter, a trademark or copyright owner seeking a preliminary injunction had to focus on proving a strong likelihood of success on the merits. Once proven, and absent unusual circumstances (most usually delay in seeking relief), entry of a preliminary injunction was almost routine. . . .
Ostensibly, Salinger appears to be a major change, adding significant new burdens for a copyright or trademark plaintiff seeking a preliminary injunction. However, a review of the decided cases in the Second Circuit since Salinger reveals that generally the new standard is of little practical difference. Once likelihood of success on the merits is shown, it is usually an easy matter to prove the other factors. We discuss each of the three Salinger factors (aside from likelihood of success), what is required to meet them, and how courts have found them to be satisfied.
Yep, that’s how it usually works out. Plaintiffs don’t get a free pass on irreparable harm, but once plaintiffs have proved infringement, there aren’t too many situations where they can’t prove harm too.
What is interesting about the analysis in the article, and a little troubling, is that it seems to confirm just what a defendant’s lawyer would expect: Judges want to give out copyright and trademark injunctions, and they’ll find a way to deem irreparable harm proved with little more difficulty than before it had to be proved. For copyright, the authors point out, rationales for irreparable harm have included:
- “where the copyright is closely associated with a particular artist or source, the harm may be irreparable because of ‘possible market confusion'”
- “where the infringing product competes with the copyright ownerâ€™s (or licenseeâ€™s) own product and causes sales losses, such harm is usually deemed irreparable because ‘to prove the loss of sales due to infringement is notoriously difficult.'”
- “where the infringement could result in a particular message being misattributed to a particular author, ‘the loss of First Amendment freedoms, and hence the infringement of the right not to speak for even minimal periods of time, unquestionably constitutes irreparable injury.'”
- “Because the defendant had ‘flood[ed] the market with counterfeit products,’ there was a distinct danger both of lost sales and damage to the plaintiffâ€™s reputation, both of which are difficult to calculate and hence irreparable,” and
- “‘loss of pricing power resulting from the sale of inexpensive “knock-offs” is, by its very nature, irreparable.'”
- “Because the defendant had ‘flood[ed] the market with counterfeit products,’ there was a distinct danger both of lost sales and damage to the plaintiffâ€™s reputation, both of which are difficult to calculate and hence irreparable.”
In other words: once likelihood of success is shown, there arises a presumption of irreparable harm. Just now the judge has to tell a story along the way.
That’s not necessarily a bad thing. In fact, the premise of the injunction remedy is that the court is acting as a chancellor in equity, which is all about putting meat on the harsh bones of the strict law in order to serve up a filling solution to a legal problem that strictly “legal” (money) remedies cannot. Verily, rare is the infringement, if infringement it be (sorry, I also wanted to sound like a chancellor in equity there for a minute), that does not cause some sort of — well, “irreparable” is a funny word — let’s say, harm for which damages cannot compensate.
On the other hand, from the defendant’s point of view, requiring District Court judges to tell stories when they do find irreparable harm benefits them, even if they end up there 99% of the time anyway. The credibility of that story — such as the repetition of mindless formulas that equate “difficult to calculate the harm” with “irreparable harm” — gives them something to say to appellate courts, whereas before they didn’t even have that hook on which to hang their hats.
On the other other hand, it was an appellate court (the Second Circuit), after all, that said in Salinger that one form of “irreparable harm” that was proved was bullet number three up there: “where the infringement could result in a particular message being misattributed to a particular author, ‘the loss of First Amendment freedoms, and hence the infringement of the right not to speak for even minimal periods of time, unquestionably constitutes irreparable injury.'” With reasoning like that…
Well, what’s the harm (you might say) with a little story, anyway, right? “Some stories are true that never happened.” There’s your irreparable harm right there!