USCA Ninth Circuit, August 3, 2011

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  • Ninth Circuit holds that Supreme Court’s eBay decision applies in copyright cases and requires that plaintiff seeking preliminary injunction show irreparable harm, and concludes that plaintiff failed to establish it.

Plaintiff, operator of a subscription website featuring photos of nude models, sued and sought a preliminary injunction against Google, claiming that Google’s search and archiving functions allowed users to circumvent the website’s paywall and view the photos for free. Plaintiff also alleged that Google’s copyright-infringement notification policy was itself infringing, because when Google receives a take-down notice alerting it to infringement on a website that can be accessed through its search engine, it forwards that notice to chillingeffects.org, a nonprofit website concerned with free speech on the Internet, which publicly posts the notice along with a link to the infringing website.

The Ninth Circuit affirmed the district court’s denial of plaintiff’s preliminary injunction motion. The court explicitly agreed with the Second Circuit decision in the case of Salinger v.Colting, 607 F.3d 68, 75, 79 (2d Cir. 2010 ) and held that the Supreme Court’s reasoning in its decision in eBay Inc. v. MercExchange, L.L.C. applied equally to copyright cases as to patent cases, and required courts to inquire into the existence of, rather than simply presume, irreparable harm in copyright cases (as some courts, including the Ninth Circuit, had in the past). The court also held that this reasoning applied equally to both permanent and preliminary injunctions. Next, the court found that Plaintiff failed to establish irreparable harm, having submitted several affidavits from its founder that suggested that without an injunction, plaintiff would be forced into bankruptcy. The court found that plaintiff was never financially sound, did not establish that its inability to obtain an injunction would force it into bankruptcy and that it had failed to submit evidence that it was losing customers as a result of its content being freely accessible through Google.