Enjoining the Cloud: Equity, Irreparability, and Remedies

Abstract

This article examines the tailoring of remedies in cases involving online infringement in particular. When websites communicate copyrighted works to members of the public or use trademarks unlawfully, domestic requirements of equitable relief come into tension with global enforcement cultures. Courts are sometimes persuaded to enjoin entire websites or to order the defendant and its cloud service providers to end any use of the copyrights or trademarks at issue, while other courts limit their injunctions to the adjudicated conduct and the parties before them. The question sometimes arises whether a site-killing or device-killing order should issue in light of the defendant's infringement and third parties' facilitation of it, or whether the defendant should simply be ordered to desist from the infringing acts (and related parties from facilitating those specific acts). An increasingly prominent alternative is to withhold an injunctive remedy in view of the potential recovery of monetary relief. This article explores why, despite statutory language, case law precedent, and political consensus that website blocking should not occur, the sweeping remedy of site blocking (enjoining any facilitation of site access) continues to be available. It argues that site-blocking and orders to third parties not to index or provide services to a website are in tension with the Supreme Court's decision in eBay, the First Amendment case for narrowly targeted remedies when publishing and digital communication are at stake, the Digital Millennium Copyright Act's limiting language, remedial proportionality doctrine, and the failure of the Stop Online Piracy Act of 2011 in Congress. Remedial inequities are also emerging as between patent and copyright or trademark holders, because the bare loss of control of intellectual property is justifying copyright and trademark injunctions despite patent law cases suggesting that impaired exclusivity and negotiating leverage are not necessarily "irreparable injury."

Keywords: injunctions, equity, filtering, website blocking, site blocking, tailoring remedies, intellectual property, copyright, trademark, patent, irreparable injury, eBay, Mercexchange, Apple, Samsung, Disney, Fox, TVEyes, proportionality, damages, remedies, First Amendment, speech, censorship machines

JEL Classification: O32, K40, K41