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Abstract:
In eBay Inc. v. MercExchange, L.L.C. (2006), the Supreme Court held that traditional equitable factors apply to injunctions in patent and copyright cases, and that therefore the mere fact a defendant has infringed a patent or a copyright does not necessarily mean a final injunction must issue. In the three years since, lower courts have denied final injunctions more frequently than before and are now struggling with what relief, if any, to give prevailing plaintiffs in lieu of an injunction. Some courts permit plaintiffs to sue again later. But most award prospective relief to plaintiffs - sometimes a lump-sum damages award or more commonly a continuing royalty - to compensate plaintiffs for the defendant's anticipated post-judgment infringements. Plaintiffs often object to prospective-compensation awards as constituting compulsory licenses.

This Article demonstrates that federal courts lack the authority, in either law or equity, to award prospective compensation to plaintiffs for post-judgment copyright or patent infringements. Until such time as Congress creates a new form of compulsory licensing, future-damage awards and continuing royalties can only be granted in lieu of a final injunction by consent of the parties. This Article reaches its conclusion only after undertaking the most comprehensive treatment of the subject to date. Apart from surveying the relevant statutory texts, it relies on an historical review of future-damage and continuing-royalty jurisprudence in England and the United States from 1660 to the present.

ebay, injunctions, royalties, copyright, patent, remedies, equity, future damages, legal history

Abstract:
This article proposes that the European Court of Human Rights should assess the applicability of private life under the European Convention on Human Rights by asking whether the applicant had a reasonable expectation of privacy or personal choice in the matter involved. The reasonableness of an expectation should depend on an empirical analysis of member-State practices, and private life should mean what a majority of the member States say it means.

The European Convention on Human Rights guarantees certain basic human rights to over 800 million people in 46 countries. Article 8 of the Convention provides, among other things, that everyone has the right to respect for his or her private life. Since the effective date of the Convention in 1953, the European Court and Commission of Human Rights have defined private life in a piecemeal fashion and without reference to any general framework. Many commentators have criticized this approach as unprincipled.

Perhaps in response to that criticism, the Court has in the last several years made greater strides in this area. Several recent judgments of the Court, including a particularly important decision from 2004, now refer to a person's reasonable expectations of privacy as the possible standard for analyzing the applicability of private life in certain circumstances.

This article traces the emergence of the reasonable-expectations test in the Court's judgments and posits that if such a test is to be the foundation for future analyses of private life, the test should be expanded to apply in all cases in which private life is alleged to apply and, more importantly, be based on objective and empirical indicia. Among other things, I suggest how the Court should apply such a test and I discuss lessons learned in the United States (and elsewhere) from its use of a similar approach.

Boiled down to its essential characteristics, this article proposes that the Court could analyze all private-life cases with some species of the following principle: A public authority may not without proper justification interfere with or fail to respect matters in which a person has a reasonable expectation of privacy or personal choice. But before the Court may hold an expectation to be reasonable, the Court must find, at a minimum, an emerging consensus among the member States of the Convention (as determined by legal and societal norms) that recognizes the right of privacy or personal choice invoked by the applicant.

Privacy, private life, European convention on human rights, Article 8, reasonable expectations, personal choice, autonomy, personality, consensus, majority

Abstract:
The Supreme Court has held that, as a general matter, an injunction cannot issue if there is an adequate remedy at law. This follows, according to the Court, because the standard for when injunctions may issue derives directly from the practice of the English Court of Chancery around 1789, which followed the same principle. This Article argues that the Supreme Court's reading of general Chancery custom is inapposite in copyright cases. The historical record shows that legal remedies were deemed categorically inadequate in copyright cases, and that by 1789, the Chancery's jurisdiction to issue copyright injunctions had become concurrent and incontestable. The Supreme Court could thus hold today, without running afoul of traditional equitable principles, that a copyright injunction can issue without regard to the adequacy of legal remedies. This Article reaches its conclusion only after undertaking the most comprehensive treatment of the subject to date. It relies primarily on the original manuscript records of 220 infringement suits brought in the Court of Chancery from 1660 to 1800, which are stored at the National Archives in London, England, and a further review of earlier copyright-infringement suits from 1557 to 1680 in antecedent tribunals, many of which are also only available in manuscript form. The topic of this Article is particularly timely given the Supreme Court's recent decision in eBay Inc. v. MercExchange, L.L.C., where it discussed the standard for issuing injunctions in patent cases, and where Chief Justice Roberts stated in a concurring opinion that lower courts should consider the inadequacy requirement in light of historical practices. Online companion: http://www.lclark.edu/faculty/tomas/appendix.html

copyright, injunctions, ebay, england, legal history, chancery, equity, court of assistants, court of star chamber, court of high commission, company of stationers