Wednesday, August 3, 2011

Perfect 10 v. Google: No Presumption of Irreparable Harm in Copyright Cases

Today the Ninth Circuit Court of Appeals issued its second opinion in the long-running Perfect 10 v. Google case.  Both appeals, including the previous 2007 opinion, arose from Perfect 10's attempt to get a preliminary injunction against Google's web and image searching features.  The case has yet to go to trial.

Today's case did not address the merits of either Perfect 10's claims or Google's defenses.  Instead, the Ninth Circuit affirmed the district court's refusal to grant a preliminary injunction on a procedural ground.  Before this case, Ninth Circuit law held that a copyright owner is entitled to a presumption of irreparable harm if it showed a reasonable likelihood it would succeed on the merits of its copyright claim.  Such irreparable harm is one of the requirements to get a preliminary injunction.
In this case, the Ninth Circuit held that the 2006 Supreme Court patent case of eBay Inc. v. MercExchange, L.L.C., changed the presumption rule.  eBay reversed the Federal Circuit's long-standing rule that after winning at trial, a patent owner was almost automatically entitled to an injunction.  Rather, the Supreme Court held that the traditional principles of equity, including relative harms to the plaintiff and defendant, must be considered before granting an injunction.  eBay has resulted in far fewer injunctions in patent cases, especially where the patent owner doesn't practice its own patent and therefore isn't likely to be harmed if an injunction isn't granted.

Applying eBay, the Ninth Circuit held that its former rule of presumed irreparable harm was no longer good law, and "effectively overruled" by eBay.  (The Second Circuit Court of Appeals had previously reached the same conclusion.)  That meant that Perfect 10 had to make an actual showing of irreparable harm if an injunction wasn't granted, before the court even got to the merits of the case.  After concluding that Perfect 10 hadn't made a sufficient showing of such harm, the Ninth Circuit affirmed the denial of the preliminary injunction.

Since this case didn't get to the merits (including Google's DMCA defense), it is perhaps less interesting than it could have been.  Techdirt argues that the case is a "huge ruling" just because of the abolition of the presumption of irreparable harm; you can draw your own conclusion.  In any event, the case is another interesting example of courts applying patent principles to copyright cases.


  1. Does this mean that Zediva has a fighting chance to overturn their injunction, since the judge in that case said the Ebay case didn't hold in the Ninth? Ryan_Singel @

  2. Hmmm, if that's the case perhaps so. I'll have to check the Zediva opinion.

  3. I read the Zediva opinion:
    In footnote 8 the court makes clear it is not relying on any presumption of irreparable harm. In essence, that judge correctly guessed what the Ninth Circuit was going to hold two days later. The text accompanying footnote 8 contains a long discussion of actual harm. I have no views on whether that discussion is accurate or not, but it would seem to comply with eBay.