Copyright Infringement: Ninth Circuit Requires Proof of Irreparable Harm For Preliminary Injunctions

If you thought that the Perfect 10 v. Google case had been resolved long ago, you, like me, would be wrong.  Perfect 10 v. Google, 10-56316 (Ninth Circuit August 3, 2011) is the latest decision by the Ninth Circuit deciding that Perfect 10 should not get an injunction.   In this latest decision again denying Perfect 10 a preliminary injunction, the Ninth Circuit expressly adopted the Supreme Court’s logic in the EBay case which rejected a presumption of irreparable harm in a patent infringement case.  Ebay Inc v. MercExchange, 547 U.S. 388 (2006).

For some time, if a copyright owner showed ownership of a copyrighted work and showed that the defendant had engaged in unauthorized copying, courts presumed that irreparable harm had been shown and shifted the burden of proof to the defendant.   The EBay standard makes getting a preliminary injunction much tougher for copyright owners, reducing the immediate settlement value of many infringement claims.
Perfect 10 is a rather unsympathetic plaintiff, suing Google for its caching of the entire internet and its practice of sending copies of all cease and desist letters to  the Chilling Effects website.  Perfect 10 alleges that because someone could look at a cease and desist letter, then click on the link to view an unauthorized photograph, that it has lost millions of dollars, since consumers won’t pay a subscription for its soft-core pornography when it can be found for free.   At the core of most of Perfect 10’s complaints is that its own subscribers repost images on such services as Blogger.
Since Google is so useful and has adopted what appear to be reasonable anti-infringement policies, it is a sympathetic defendant.  There may be more sympathy for Perfect 10’s position to be found in an amicus brief filed by the Picture Archive Council of America and others, I didn’t dig into this.   An unsympathetic plaintiff who fails to develop a proper record may sometimes shape the law in ways that is undesirable for many others, particularly working photographers needing legitimate protections against republication of original images.  This may well be such a case.   Treating copyrights as fungible goods may not necessarily serve the best interests of society and shifting the cost burden to copyright owners may well be unfair in the case of individual authors who may well be deprived of all bargaining power in cases of legitimate and truly irreparable injury.

 www.dunnington.com
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

SDCA: Perfect 10 v Rapidshare: Preliminary Injunction Denied Against Filesharer Despite Specfic Knowledge of Infringements

In Perfect 10 v. Rapidshare (SDCA 09 CV 2596) May 18, 2010, the District Court denied a preliminary injunction against filesharing service provider.

I visited the company's website and watched the video here.   It looks like a service that would be helpful in our law practice - we are dealing with transmittal of larger and larger files and always interested in bringing down the cost and making it faster.

I couldn't tell from watching the video on the Rapidshare homepage with the nice German accents or reading the decision exactly how the peer-to-peer filesharing (ie accessing someone else's copyrighted works) might work.

But the judge found facts radically different from those in the Limewire case, an example of a a filesharing service that appears to be a pretty good citizen and a plaintiff who seeks to put the burden of policing its content onto a neutral third party.


Perfect 10 v Rapid Share: Denial of Preliminary Injunction of Filesharer Despite Specific Knowledge of Infr...