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The Patry Copyright Blog: Presumption of Irreparable Harm: Why?
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The Patry Copyright Blog
Monday, June 05, 2006
Presumption of Irreparable Harm: Why?
A unique feature of copyright law (also found to varying degrees with patents and trademarks ), but one that in my opinion been misunderstood and misapplied is the judicially created principle of presuming irreparable harm automatically when the movant establishes a likelihood of success. The presumption is applied by all circuits, except the Fifth Circuit, which expressly does not apply the presumption. The Eleventh Circuit applies the presumption generally, but not where there is a bona fide fair use defense. It has not been approved by the District of Columbia Court of Appeals yet, although some trial judges in that circuit have applied it. The presumption is of a relatively recent vintage, appearing as a discrete statement first in dictum in the American Metropolitan Enterprises of New York, Inc. v. Warner Bros. Records, 389 F.2d 903, 905 (2d Cir. 1968) and later in other circuits. The relevant passage from American Metropolitan is: “A copyright holder in the ordinary case may be presumed to suffer irreparable harm when his right to the exclusive use of the copyrighted material is invaded.” This dictum is all the more remarkable because the remedy at issue was strictly legal: the dispute was over mechanical compulsory license fees under the predecessor to current Section 115. Even more remarkable is the fact that the Second Circuit did not apply the presumption; instead, it affirmed the district court’s refusal to grant a preliminary injunction on the ground that an adequate legal remedy existed: “[T]he usual rationale for granting a preliminary injunction upon the showing of a prima facie copyright infringement does not apply where the copyright covers musical compositions mechanically reproduced since the copyright holder does not have any exclus"
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