Ninth Circuit Rejects Presumption Of Irreparable Harm In Copyright Cases

Copyright defendants have a reason to thank Perfect 10, Inc. this week; the serial—and serially unsuccessful—plaintiff's latest appeal has resulted in a decision that will make it significantly more difficult for copyright owners to obtain preliminary and permanent injunctions against alleged infringers in the Ninth Circuit. In Perfect 10, Inc. v. Google, Inc., No. 10-56316 (9th Cir. Aug. 3, 2011), Judge Ikuta, writing for a unanimous three-judge panel, reversed the Ninth Circuit's longstanding rule that irreparable harm could be presumed from a showing of reasonable likelihood of success on the merits in a copyright infringement claim. The panel reached this result after determining that eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) in which the Supreme Court rejected a similar presumption of irreparable harm in patent cases, "effectively overruled" the Ninth Circuit's prior decisions.

Background of the Case

Plaintiff Perfect 10 operates a paid subscription website offering adult photographs. It accused Google of infringing its copyrights in those photographs through its search engine, by creating and displaying thumbnail images of the photographs and by linking to webpages where third parties had reproduced the images without authorization. Perfect 10 had previously obtained a preliminary injunction from the United States District Court for the Central District of California, but the Ninth Circuit had reversed, determining that Google's thumbnails and caching were protected as fair use, and remanding for determination of whether Google should be contributorily liable for third party infringement. Perfect 10, Inc. v. Google, Inc., 508 F. 3d 1146 (9th Cir. 2007). On remand, Perfect 10 again moved for a preliminary injunction. The district court denied this request, holding that Perfect 10 did not satisfy any of the requirements for a preliminary injunction: (1) likelihood of success on the merits; (2) irreparable harm absent an injunction; (3) that the balance of equities tips in its favor; and (4) that an injunction is in the public interest. Perfect 10 appealed.

The Ninth Circuit's Decision

On appeal, Perfect 10 argued that the district court erred in not finding likelihood of irreparable harm. Perfect 10 cited a long string of Ninth Circuit precedent dating back almost thirty years, which held that irreparable harm should be presumed if the copyright holder showed a likelihood of success on the merits.

The panel expressly...