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November 2, 2011 / screwvala

All Shook Up

Preliminary injunctions are powerful tools when pursuing infringing conduct. A preliminary injunction is an order from a court that forces a party to refrain from certain conduct. In an infringement case, that would typically result in forcing the defendant to pull the infringing conduct. Note the word preliminary. A preliminary injunction is issued before a full hearing on the case occurs, i.e., before the defendant can mount a defense to the allegations. A plaintiff must meet a high threshold to get an injunction: a substantial likelihood of success on the merits and irreparable harm if the injunction is not granted.

Why is a preliminary injunction so powerful? Consider a new television show about to premiere on a major network. The network has spent enormous sums promoting the program for months, through on air, print, and other advertising and promotion. Now imagine what happens if the day before a court issues an injunction preventing broadcast. Clearly, the plaintiff is in an excellent bargaining position.

Hence the high standard. Let’s focus on irreparable harm. Irreparable harm generally exists where the plaintiff has no other adequate remedy. If the plaintiff can be made whole through money damages, for example, there is usually no irreparable harm. The Ninth Circuit has long held that allegations of copyright infringement were entitled to a presumption of irreparable harm, essentially obviating the need for the plaintiff to present proof of harm. See, Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003).

The era of presumption has now come to a close, however. In 2006, the Supreme Court rejected an injunction in a patent infringement case, holding that there was no basis to depart from the ordinarily high standards for injunctions in other areas, including copyright law. eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006). Recognizing the impact of the Supreme Court decision, the Ninth Circuit in August put an end to the presumption in Flexible Lifeline Systems v. Precision Lift, Inc., 654 F.3d 388 (9th Cir. 2011). Plaintiffs seeking a preliminary injunction are now required to present proof of irreparable harm. Apparently, the King is dead.

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