Intellectual Property – Copyright infringement – injunctions

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Irreparable injury cannot be presumed to result from copyright infringement when considering an injunction.

“The district judge in this case erred at the outset by saying that ‘as a practical matter, the analysis boils down to a single factor—the plaintiff’s likelihood of success.’ He based this
assertion on the statement in Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 620 (7th Cir. 1982), that ‘irreparable injury may normally be presumed from a
showing of copyright infringement.’ But the Supreme Court’s subsequent decision in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392-93 (2006), made clear that there is no such
presumption; and though that was a case about patents rather than copyrights and about permanent rather than preliminary injunctions, we are persuaded by Flexible Lifeline Systems, Inc. v.
Precision Lift, Inc., 654 F.3d 989, 995-96, 998 (9th Cir. 2011) (per curiam), and Salinger v. Colting, 607 F.3d 68, 82 (2d Cir. 2010), that eBay governs a motion for a preliminary
injunction in a copyright case, as well. See also Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22-24 (2008). Therefore likelihood of success was only one factor for the
district judge to consider in deciding whether to grant a preliminary injunction.”

Vacated.

11-3190 Flava Works, Inc., v. Gunter

Appeal from the United States District Court for the Northern District of Illinois, Grady, J., Posner, J.
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