|Title:||Copyright Injunctions after eBay: An Empirical Study|
|Citation:||Liu, Jiarui, Copyright Injunctions after eBay: An Empirical Study (January 6, 2012). Lewis & Clark Law Review, Vol. 16, No. 1, p. 215, 2012.|
|Key Related Studies:|
|About the Data|
|Data Description:||The empirical part of this study is based on all reported copyright-injunction decisions during the period from May 15, 2006 (the issuing date of the eBay decision) to June 1, 2010. The study resulted in a total of 506 decisions that substantively weighed in on the availability of injunctive relief in copyright-infringement cases.|
|Data Type:||Primary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||No|
|Government or policy study?:|
|Time Period(s) of Collection:||
An interesting yet less explored aspect of the eBay decision, in which the Supreme Court upheld the four-factor test under traditional principles of equity in the patent injunction context, is that the decision referred to what it characterized as long-term practice in copyright law to support the equitable power of lower courts to deny permanent injunctions. This ruling was made against the backdrop of widespread patent holdup where patent owners used the threat of injunctive relief to extract royalties grossly disproportionate to the value of the patented feature to the whole product. The holdup problem, however, is not equally obvious in copyright law.
A close examination of the copyright cases cited in eBay reveals that they are hardly compelling authorities with respect to copyright injunction. The history of copyright law appears to suggest that injunctive relief was routinely available to copyright owners who had succeeded on the merits. More remarkably, empirical evidence shows that the majority of post-eBay decisions on copyright injunctions have totally ignored the eBay decision as well as the four-factor test advocated therein. Even among the cases that did cite eBay, most courts were reluctant to withhold injunctive relief upon a finding of copyright infringement.
This Article argues that the traditional practice of copyright law and the apparent indifference toward the eBay decision may have resulted from rational choices of judges. Copyright holdup is much less pervasive than patent holdup, as interchangeable copyrighted works abound in the marketplace, and copyright law contains built-in mechanisms to control the holdup problem. Copyright injunctions also involve a distinct set of policy concerns, such as reputational harm, fair use, statutory damages, and freedom of speech. Hence, this Article proposes several approaches to reconcile the unique concerns in copyright law and the four-factor test mandated by eBay, with a focus on three scenarios that are particularly susceptible to the holdup problem.
Main Results of the Study
This Article examines how much the eBay decision has guided, and should guide, copyright cases and it argues that the historical practice of copyright law and the apparent indifference toward the eBay decision may have resulted from rational choices of the judges. More specifically, it argues that:
- Contrary to recent media outcries about “copyright trolls,” the holdup problem envisaged in eBay is likely to be much less pervasive under copyright law than under patent law.
- Nevertheless, copyright holdup may still arise in a limited number of cases that involve innocent infringement, substantial redesign costs, and small value of a copyrighted component relative to the overall product.
- The eBay decision was neither rooted in the well-established practice of copyright law nor effective in altering the adjudication of subsequent copyright injunctions.
- While the eBay decision promoted a nuanced, case-by-case approach to handling motions for injunctive relief, it might just be teaching a lesson against a general rule that a patent doctrine would automatically work for copyright law.
Policy Implications as Stated By Author
The seeming indifference toward the eBay decision may actually result from rational choices of lower courts because the holdup problem in copyright law is much less ubiquitous and involves a different set of policy concerns.
Coverage of Study
|Level of aggregation:||Court Decisions|
|Period of material under study:||2006-2010|