The Continuing Vitality of the Presumption of Irreparable Harm in Copyright Cases

38 Pages Posted: 16 Jan 2011 Last revised: 21 Apr 2011

Date Written: January 12, 2011


Property has long enjoyed civil enforcement through a potent remedy: the permanent injunction. For decades, federal courts across the country roundly granted permanent relief upon finding infringement and a threat of future infringement of one type of property: copyrights. Beyond these showings, a prevailing plaintiff in a copyright infringement case would not have to prove the cornerstone of equitable relief – irreparable harm – to obtain an injunction. But after the U.S. Supreme Court’s decision in eBay v. MercExchange, some courts have abandoned this truncated equitable inquiry. In its place, the lower federal courts now apply eBay's four-factor test to determine whether a copyright case presents a possibility of irreparable harm. The handful of courts treating the eBay test have taken one of two approaches: rejecting a presumption of irreparable harm or continuing to recognize that presumption. In light of this emerging split of authority, this Comment argues that the presumption of irreparable harm should continue to have a place in American copyright law. Such a rebuttable presumption would protect copyright’s exclusivity, address judicial distrust that defendants will voluntarily cease infringing activity, conserve judicial resources, allow courts to shape their equitable powers through general rules as post-eBay case law develops, and adhere to the history and traditions of equity practice eBay implores the courts to follow.

Keywords: Intellectual Property, Copyright, Litigation, Remedies, Presumption, Irreparable Harm, Equity, Equitable Relief, Permanent Relief, Permanent Injunctions, Injunctive Relief

Suggested Citation

Spillane, Andrew Francis, The Continuing Vitality of the Presumption of Irreparable Harm in Copyright Cases (January 12, 2011). Marquette Intellectual Property Law Review, Vol. 15, No. 1, 2011, Marquette Law School Legal Studies Paper No. 11-09, Available at SSRN:
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