Originally posted 2011-11-28 14:33:13. Republished by Blog Post Promoter
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: Read More…