Fresh from the 9th Circuit, the Court denied a preliminary injunction request against Google from long-standing copyright plaintiff, Perfect 10. Although Perfect 10 has a progeny of cases before the Circuit, this new decision marks an important change in doctrine. The 9th Circuit expressly adopted the Ebay injunction factor-test, thus doing away with the “presumption of irreparable harm” that existed in Patent law prior to Ebay, and still exists in Copyright and Trademark in many Circuits. Below is the key paragraph from the case:
We agree with the Second Circuit. As explained in eBay, the language of § 502(a) is permissive and evokes tradi- tional equitable principles: “[T]he Copyright Act provides that courts ‘may’ grant injunctive relief ‘on such terms as [they] may deem reasonable to prevent or restrain infringe- ment of a copyright.’ ” 547 U.S. at 392 (quoting 17 U.S.C. § 502(a)). Nothing in the statute indicates congressional intent to authorize a “major departure” from “the traditional four- factor framework that governs the award of injunctive relief,” id. at 391, 394, or to undermine the equitable principle that such relief is an “extraordinary and drastic remedy” that “is never awarded as of right,” Munaf v. Green, 553 U.S. 674, 689-90 (2008) (internal quotation marks omitted). We there- fore conclude that the propriety of injunctive relief in cases arising under the Copyright Act must be evaluated on a case- by-case basis in accord with traditional equitable principles and without the aid of presumptions or a “thumb on the scale” in favor of issuing such relief. Monsanto, 130 S. Ct. at 2757.
Personally, I agree with doing away with a blanket presumption, but what say you? Should provisions (and interpretation) under the Patent Act be extended to the “soft IP’s”?
Perfect 10 v Google 9th Circuit Denies Preliminary Injunction
