Copyright Harm and Injunctions
16 Pages Posted: 3 Jun 2012 Last revised: 10 Oct 2012
Date Written: June 3, 2012
Copyright law’s failure to develop a coherent theory of harm impedes its constitutional goal of promoting innovation and thwarts First Amendment values besides. In order to promote “the Progress of Science,” we must provide adequate protection to encourage the creation and dissemination of copyrighted works, while also allowing others to access and build upon them or improve them. Prohibiting uses of copyrighted material that are not likely to harm a copyright holder’s ex ante incentives to produce the work stifles progress.
Moreover, because copyright regulates words and other creative expression, it burdens speech. The First Amendment allows the government to burden speech only when it has a sufficient governmental interest in doing so. The greater the harm caused by speech, the stronger is the government’s interest in regulating it. While the First Amendment sometimes protects even harmful speech, it does not allow the regulation of harmless speech.
The requirement of irreparable harm in the law of injunctions reflects the severity of the injunctive remedy. The Supreme Court has held that injunctive relief is an “extraordinary and drastic remedy” that “is never awarded as of right.” Further, “[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” The harm standard for a permanent injunction is at least as great.
Where rights in intellectual property are concerned liability rules, enforced by damages actions after the fact, are often preferable to property rules because harm to the owner is often inchoate and difficult to show. Further, because IP boundaries are so unclear there is a legitimate risk that an injunction will restrain beneficial as well as harmful activity. Problematically, copyright damages are typically the most difficult to measure when the defendant’s work does not involve exact copying, but that is also precisely the area in whch the threat of enjoining harmless, socially beneficial activity is the greatest. Fair use and the idea/expression dichotomy are likely to be major issues in many of these cases, and the uncertainty in applying these doctrines makes overbroad injunctions likely.
Keywords: copyright, harm, injunctions, remedies, damages, infringement, fair use
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