No Presumption of Irreparable Harm

The Ninth Circuit Court of Appeals has abandoned its long-standing precedent that a presumption of irreparable harm exists in copyright infringement cases, articulated in Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir. 2003), holding that two recent cases of the U.S. Supreme Court have brought an end to the long-standing doctrine.

The decision in Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F. 3d 289 (9th Cir. 2011) involved a failed joint venture between the plaintiff and defendant to build and market maintenance stands that allow mechanics to access the outside of aircraft.

Precision Lift sold the stands designed and manufactured by Flexible Lifeline and the two companies had entered into a joint venture.  The joint venture failed as it was submitting a proposal to the U.S. Air Force.  Precision lift continued with another partner, but using Flexible Lifeline’s plans.  Although neither party was awarded the contract, Flexible lift sued seeking an injunction against further use.

Injunction Granted on Showing of Copyright Infringement

The District Court granted the injunction, holding that plaintiff established a likelihood of success on the merits and that irreparable harm was therefore presumed under established Ninth Circuit precedent including the Elvis decision.

In reversing the trial court, the Ninth Circuit joined the Second and Fourth Circuits in construing two decisions of the U.S. Supreme Court as having put an end to the presumption of irreparable harm.

eBay Decision Controls

The Court relied on eBay Inc v. MercExchange, LLC, 547U.S. 388, 126S. Ct. 1837, 164 L. Ed. 2d 641 (2006), in which the Supreme Court overruled a similar presumption of irreparable harm applied by courts in patent infringement cases.  The Supreme Court held that the presumption of irreparable harm was inconsistent with the general rule that injunctive relief requires exceptional circumstances.  Because the plaintiff in that case did not actually exploit the patents at issue, injunctive relief was not appropriate.

The Ninth Circuit noted that the Supreme Court reasoned from similar language in the copyright statute and that it has “consistently rejected” attempts to replace traditional equitable remedies with a rule that an injunction automatically follows a determination of infringement.

Any doubts about the effect of the eBay decision were put to rest by the Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008) in which the Supreme Court reversed the Ninth Circuit’s holding that an injunction could be issued on the “possibility” of irreparable harm.

“ [W]e proclaim that the “King” is dead, referring to Elvis Presley the case — to the extent it supported the use of a presumption of irreparable harm in issuing injunctive relief,” quips the opinion.