The Second Circuit has vacated the preliminary injunction in Salinger v. Colting, the “Coming Through the Rye” case. I have not read the opinion, but this snippet from the introduction seems significant:
We hold that the Supreme Court’s decision in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), which articulated a four-factor test as to when an injunction may issue, applies with equal force to preliminary injunctions issued on the basis of alleged copyright infringement. Therefore, although we conclude that the District Court properly determined that Salinger has a likelihood of success on the merits, we vacate the District Court’s order and remand the case to the District Court to apply the eBay standard.
More later.
Thanks for posting this decision. There’s a really interesting tidbit on page 20, where Judge Calabresi states, “After eBay, however, courts must not simply presume irreparable harm. See eBay, 547 U.S. at 393. Rather, plaintiffs must show that, on the facts of their case, the failure to issue an injunction would actually cause irreparable harm.”
The opinion’s rationale, however, discloses the inconsistency of the opinions rejecting the presumption: that courts shouldn’t apply general rules despite the historical practice that the courts are supposed to follow having developed those same rules. See slip opinion page 21. The need to keep up with changing technology demonstrates that exceptions to historical equity practice may develop. These being exceptions to established rules, thus, those changes actually justify shouldering defendants with the burden of proof here to show how their case deviates from the norm of irreparable harm.
Nonetheless, it looks like we have another case joining the groundswell of decisions following MGM v. Grokster’s district court opinion rejecting the presumption of irreparable harm in copyright infringement suits. There are some recent unpublished district court opinions going the other way, albeit without a whole lot of reasoning backing up their rules, but the trend seems to be towards the presumption becoming a relic of the last twenty to thirty years.