Freedom of Speech and Injunctions in Intellectual Property Cases

Abstract:     
Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Never mind that a libel may inflict truly irreparable harm on you: The most you can hope for is damages, or perhaps a permanent injunction after final adjudication -- not preliminary relief.

And yet in copyright and other intellectual property cases, preliminary injunctions are routine. We argue that the prior restraint doctrine has something to say about that, too. Though copyright law (like libel and obscenity law), is a constitutionally permissible speech restriction, the "First Amendment Due Process" rule against prior restraints applies even to such permissible restrictions.

We argue that preliminary injunctions in copyright cases are generally unconstitutional; the one exception is cases where there's no controversy over substantial similarity of expression or fair use (for instance, where the question turns only on whether defendant had the requisite license). We also argue the same about right of publicity cases, trademark cases, and trade secret cases, except possibly cases (such as many trademark cases) that involve commercial advertising. We believe this conclusion is dictated by the Court's prior restraint doctrine, and also makes good First Amendment policy sense.

Working Paper Series