The Second Circuit yesterday overruled prior precedent that provided for a presumption of irreparable harm in the preliminary injunction context in copyright cases. In Salinger v. Colting, No. 09-2878 (2d Cir. Apr. 29, 2010), the Second Circuit held that the Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006)--in which the Supreme Court, in a patent case, rejected general or categorical rules favoring or disfavoring injunctions--was not limited to patent cases.
The new test for a preliminary injunction (in copyright cases in the Second Circuit) is now:
1. (a) likelihood of success on the merits; or
(b) sufficiently serious merits questions and the balance of hardships tipping decidedly in the movant’s favor;
2. a demonstration of likely irreparable harm;
3. consideration of the balance of hardships; and
4. confirmation that the public interest would not be disserved.
As to factor (2), the Court softened the blow to copyright holders, however, by hinting that courts could consider “historical tendencies” in past copyright cases in assessing the showing of irreparable harm. It will be interesting to see whether such “historical tendencies” will actually put litigants pretty close to where they were under the “presumption of irreparable” standard.
While the Court was careful to limit its holding to copyright cases, nothing I could find in the opinion suggested that the Second Circuit would not also extend eBay to trademark cases once the issue is squarely presented to it. However, in what might have been an instance of purposeful judicial foreshadowing, the Court noted that historically courts have tended to find “possible marketplace confusion” as an example of irreparable harm. Hmmm.