Wednesday, August 03, 2011

9th Cir.: After eBay v. MercExchange, Perfect 10 not entitled to presumption of irreparable harm for Google copyright infringement

In the latest installment of the long-running litigation between Perfect 10 and Google over Perfect 10's copyrighted model images, the 9th Circuit affirmed the denial of a preliminary injunction against Google because Perfect 10 failed to demonstrate irreparable harm.

The 9th Circuit first ruled that the Supreme Court's decision in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) -- a patent case in which the Court held a general or categorical rule favoring or disfavoring injunctions -- was not limited to patent cases. Following the lead of the 2d Circuit in Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) (which I previously noted here) the 9th Circuit held that eBay also applies to cases under the Copyright Act. In so doing, the 9th Circuit overruled its pre-eBay precedents consistently holding that a showing of likely success on the merits of a copyright infringement claim gave rise to a presumption of irreparable harm.

The 9th Circuit then affirmed the district court's finding that Perfect 10 failed to show that Google's infringement had caused irreparable harm.  The Court held that the post-eBay causation requirement was not satisfied simply by a documented and dramatic decline in Perfect 10's revenues from fees to download photos of its models as the number of free Google thumbnail images increased.

The decision is Perfect 10, Inc. v. Google, Inc., No. 10-56316 (9th Cir. Aug. 3, 2011).

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