What History Teaches Us About Copyright Injunctions and the Inadequate-Remedy-At-Law Requirement

84 Pages Posted: 5 Mar 2008 Last revised: 8 Mar 2009

Date Written: October 19, 2008


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

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

JEL Classification: K39, K41

Suggested Citation

Gomez-Arostegui, Tomas, What History Teaches Us About Copyright Injunctions and the Inadequate-Remedy-At-Law Requirement (October 19, 2008). Southern California Law Review, Vol. 81, p. 1197, 2008, Lewis & Clark Law School Legal Studies Research Paper No. 2008-13, Available at SSRN: https://ssrn.com/abstract=1101974

Tomas Gomez-Arostegui (Contact Author)

Lewis & Clark Law School ( email )

Portland, OR 97219-7768
United States

Independent ( email )

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