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.

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Appellate Practice: Perfecting a Civil Appeal in Federal Court - Ninth Circuit

This is an exellent video explaining in simple language how to prepare an appeal in a federal civil case.   For anyone preparing an appellate argument, it is a good overview of the basics and a great way to remember how important it is to master the facts, prepare well, and to keep things clear and simple when arguing before the federal courts.

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

9th Circuit en Banc: Preemption of Contracts Involving Ideas, and Judges on YouTube: Gnarly!

The 9th Circuit Court of Appeals has a channel on YouTube. A couple of weeks back, I met Chief Judge Alex Kozinski at a Federal Bar Association cocktail party with the greeting "Hey Judge I saw you on YouTube!" This is the type of greeting that New Yorkers think Californians will enjoy. I survived the greeting to have a good discussion. The Cassirer case, the Ninth Circuit en banc video on YouTube here.

But once again, I am drawn back to YouTube for a wonderful argument on an important case (thank you Anonymous tipster). My initial post on the 9th Circuit's original decision in Montz v. Pilgrim Films here.

I rarely take a position in copyright cases (as opposed to Nazi art looting cases) saying that a case is right or wrong. Sometimes I say that a copyright case is well-reasoned. But Montz v. Pilgrim Films, as you can see from my earlier post here, is a case where I opined that the 9th Circuit was "clearly incorrect".

Now with the argument on YouTube, you too can access the wonderful world of copyright and the cutting-edge issue of preemption. Here, the issue is whether or not a state can regulate contracts governing the buying and selling of ideas. This is big, heady, important stuff and this case is of extraordinary importance. I am happy to see the Ninth Circuit take it en banc.

In Chapter 10 of Copyright Litigation Handbook "Removal from State Court and Preemption" I cover the tension between the Copyright Act and state law.

More Copyright Litigation Blog posts on preemption here.

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

Copyright Act's First Sale Doctrine: Question Presented To The US Supreme Court

Costco Wholesale Corp., v. Omega, S.A., Docket No. 08-1423

Under the Copyright Act's first-sale doctrine, 17 U.S.C. § l09(a), the owner of any particular copy "lawfully made under this title" may resell that good without the authority of the copyright holder. In Quality King Distribs., Inc. v. L'Anza Research Int'l, Inc., 523 U.S. 135, 138 (1998), this Court posed the question presented as "whether the 'first sale' doctrine endorsed in § 109(a) is applicable to imported copies." In the decision below, the Ninth Circuit held that Quality King (which answered that question affirmatively) is limited to its facts, which involved goods manufactured in the United States, sold abroad, and then re-imported.




The question presented here is:

Whether the Ninth Circuit correctly held that the first-sale doctrine does not apply to imported goods manufactured abroad.
 
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