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On eBay, Injunctions, and Copyright

Today, the Supreme Court held unanimously in eBay v. MercExchange [pdf] that traditional equitable principles apply to granting or withholding injunctive relief in patent cases, in the absence of statutory direction to the contrary. Among the eye-catching passages from Justice Thomas’s opinion is this one, drawing out the implications of the holding for copyright law:

Like the Patent Act, the Copyright Act provides that courts “may” grant injunctive relief “on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 U. S. C. §502(a). And as in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed. See, e.g., New York Times Co. v. Tasini, 533 U. S. 483, 505 (2001) (citing Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 578, n. 10 (1994)); Dun v. Lumbermen’s Credit Assn., 209 U. S. 20, 23– 24 (1908).

Tasini and Campbell are cited regularly in academic circles for the proposition that injunctive relief in copyright cases need not be automatic. But in practice the presumption in favor of injunctions in copyright cases seems to be even stronger than it is in patent cases. It will be interesting to see how this re-endorsement of the Court’s prior statements gets received. It’s obviously dicta (still), but it’s no accident that the Court included this passage. I suspect that the ramifications of this opinion may be more dramatic in copyright cases than in patent cases. As to patent law, I stand by my earlier assessment of eBay.

UPDATE: More on the Court’s opinions from Randy Picker at Chicago.

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