Raising the Bar and the Public Interest: On Prior Restraints, ‘Traditional Contours,’ and Constitutionalizing Preliminary Injunctions in Copyright Law
John M. Newman
U.S. Department of Justice - Antitrust Division
April 4, 2011
Until very recently, a great deal of confusion existed among courts regarding the correct standard to apply in granting preliminary injunctions, particularly in copyright-infringement lawsuits. While two recent U.S. Supreme Court decisions have at least begun to clarify the proper approach, the myriad methods of analyzing the separate factors of the Court’s test – as well as the Ninth Circuit’s persistence in applying its own alternative formulation – make it difficult for lawyers and litigants to predict outcomes.
This Article begins by detailing the potential harms that arise from applying an overbroad preliminary-injunction standard. It then seeks to demonstrate that the Court’s proffered test for granting such relief, which requires plaintiffs to demonstrate each of four individual factors, should be applied uniformly by lower courts deciding copyright preliminary-injunction requests. Through a close examination of recent Supreme Court precedent, I posit that the Court is attempting two primary aims: (1) raising the bar for copyright plaintiffs requesting preliminary injunctions, in order to reduce the irreparable harms inflicted by the current, overly lenient standard; and (2) drawing the four-factor test into the “traditional contours” of copyright law, in an attempt to stave off potential conflict between copyright protections and the First Amendment’s guarantee of freedom of speech.
Unfortunately, the Court has been vague on how lower courts should apply its new standard in order to achieve these ends. As to the first, I argue that the presumptions that formerly governed copyright preliminary injunctions should be discarded. I then address the question of whether the Court’s approach can sufficiently account for free-speech concerns, particularly the potential – raised persuasively by Professors Lemley and Volokh – that the prior-restraint doctrine should apply to copyright law. I argue in response that, despite the theoretical appeal of this argument, the Court’s traditional-contours approach is a practical reality. Thus, the question becomes how best to serve the interests of both the First Amendment and copyright law while operating within the framework currently governing copyright-preliminary-injunction jurisprudence. I contend that free-speech concerns may be mitigated through careful application of the Court’s new four-factor standard for granting preliminary injunctions, particularly under the public-interest inquiry dictated by the new standard. I conclude by setting forth a factor-by-factor analysis of how the standard should be applied in order to raise the bar faced by copyright plaintiffs and preserve copyright’s constitutionality.
Number of Pages in PDF File: 66
Keywords: First Amendment, Copyright, Preliminary Injunctions, Constitutional Law, Intellectual Property Law, Remedies, Ebay, Winter, Traditional Contours, Irreparable Harmworking papers series
Date posted: April 5, 2011 ; Last revised: August 24, 2012
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