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Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases


Pamela Samuelson


University of California, Berkeley - School of Law

Krzysztof Bebenek


affiliation not provided to SSRN


Journal of Law & Policy for the Information Society, Vol. 5, 2009
UC Berkeley Public Law Research Paper No. 1495343

Abstract:     
It has become lamentably common for courts to issue preliminary injunctions in copyright cases once rights holders have shown a reasonable likelihood of success on the merits without going on to require them to prove that they will suffer irreparable harm unless the injunction issues. Harm is too often presumed to be irreparable if plaintiffs have made out a prima facie case of infringement. This presumption cannot be squared with traditional principles of equity, as interpreted in numerous Supreme Court decisions, particularly eBay, Inc. v. MercExchange LLC, 547 U.S. 388 (2006).

While a presumption of irreparable harm is inappropriate in all copyright cases, it is particularly troublesome in cases involving transformative uses of existing works, such as parodies and remixes and mashups, because free expression and free speech interests of creative users are at stake and transformative uses cases often raise plausible non-infringement defenses. Indeed, if any presumption about harm is appropriate in transformative use cases, it should probably run in favor of irreparability of harm to the defendants’ free expression and speech interests under First Amendment case law which treats preliminary injunctions as presumptively unconstitutional prior restraints on speech.

Number of Pages in PDF File: 33

Keywords: copyright, preliminary injunctions, presumption of irreparable harm, transformative uses

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Date posted: October 29, 2009  

Suggested Citation

Samuelson, Pamela and Bebenek, Krzysztof, Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases. Journal of Law & Policy for the Information Society, Vol. 5, 2009 ; UC Berkeley Public Law Research Paper No. 1495343. Available at SSRN: http://ssrn.com/abstract=1495343

Contact Information

Pamela Samuelson (Contact Author)
University of California, Berkeley - School of Law ( email )
Boalt Hall
341 North Addition
Berkeley, CA 94720-7200
United States
(510) 642-6775 (Phone)
(510) 643-2673 (Fax)
Krzysztof Bebenek
affiliation not provided to SSRN
Feedback to SSRN


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