Liu (2012)

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Liu (2012)
Title: Copyright Injunctions after eBay: An Empirical Study
Author(s): Liu, J.
Year: 2012
Citation: Liu, Jiarui, Copyright Injunctions after eBay: An Empirical Study (January 6, 2012). Lewis & Clark Law Review, Vol. 16, No. 1, p. 215, 2012.
Link(s): Definitive
Key Related Studies:
Discipline:
Linked by:
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:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?:
Government or policy study?:
Time Period(s) of Collection:
  • 2012
Funder(s):
  • None

Abstract

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

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Green-tick.png
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 506
Level of aggregation: Court Decisions
Period of material under study: 2006-2010