Catcher in the P.I. (preliminary injunction)

The April 30, 2010 decision by the Second Circuit has been the subject of many reports – predominantly regarding the likelihood of success for the Trustees of the J.D. Salinger literary trust. However, there is a separate and independent significance within the decision – the scope of the eBay decision by the Supreme Court [547 U.S. 388 (2006)] on injunctive relief. The Second Circuit’s decision remanded and vacated the preliminary injunction order (with a ten day stay to allow for Salinger’s estate to seek a temporary restraining order).

For a preliminary injunction to issue, the plaintiff must demonstrate,

“a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in [plaintiff]’s favor…[and] that [plaintiff] is likely to suffer irreparable injury in the absence of an injunction…” (Page 18) (citations omitted)

The Court must also consider,

“the balance of hardships between the plaintiff and defendant and issue the injunction only if the balance of hardships tips in the plaintiffs’ favor…[and] the public interest.” (Page 18) (citations omitted).

The Second Circuit has adopted the eBay test for not only permanent injunctions in the patent context but has broadened the test to copyright cases and in the preliminary injunction context. In addition, the Court removed any rule or presumption of irreparable harm on the basis of a likelihood of success on the merits. Interestingly, before providing its opinion that there is a likelihood of success on the merits under the facts of the case, the Court did advise that courts should be aware that it is difficult to predict “the merits of a copyright claim at a preliminary injunction hearing.” (Page 19) Specifically, the court cited to the limited briefing time, the fact-intensive inquiry of substantial similarity and varying perceptions of fair use. (Page 19)

Will this decision make it more difficult for injunctions in copyright infringement actions? What do you think?


The Salinger brief can be found here.
The Colting brief can be found here.