In Perfect 10 v. Google, No. 10-56316, D.C. No. 2:04-cv-09484-AHM-SH (9th Cir. Aug. 3, 2011), the Ninth Circuit conclusively jettisoned the presumption of irreparable harm upon a showing of copyright infringement. Perfect 10, a nude photo web site, has been embroiled in a long-running battle with Google over infringement of Perfect 10's copyrighted images cached by Google. Perfect 10 has twice unsuccessfully sought a preliminary injunction against Google. Appealing the second denial of injunctive relief, Perfect 10 argued that it did not have to show irreparable harm because it showed a likelihood of success on the merits. A Ninth Circuit panel of Judges Kozinski, Hawkins, and Ikuta firmly rejected this argument in a published opinion. Acknowledging Ninth Circuit precedent allowing a presumption of irreparable harm for copyright infringement, the court held that the law had changed due to eBay v. MercExchange, LLC, 547 U.S. 388 (2006). Per eBay, the courts could not apply a presumption, but had to evaluate all factors for each preliminary injunction on a case-by-case basis. Citing the Second Circuit, the opinion explained that nothing in the Copyright Act evidenced intent by Congress to depart from the equitable principle that injunctions are not granted with a "thumb on the scale" in favor of relief. The court held, "[O]ur longstanding rule … [of] a presumption of irreparable harm, … has therefore been effectively overruled." In a footnote, the Ninth Circuit left open the possibility that the presumption may continue to exist under the Lanham Act.
Practice Pointers: Copyright holders in the Ninth Circuit should fully flesh out their grounds for irreparable harm prior to filing for injunctive relief, and they should expect to have to present substantive evidence on that point. Accused copyright infringers should highlight the Perfect 10 decision and demand a rigorous showing of irreparable harm. For trademark holders, the Perfect 10 opinion highlights the uncertainty regarding the status of the irreparable harm presumption under the Lanham Act. Anyone seeking injunctive relief under the Lanham Act should be prepared to address the reasoning in Perfect 10.