UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1860

BETHESDA SOFTWORKS, L.L.C.,

Plaintiff – Appellant,

v.

INTERPLAY ENTERTAINMENT CORPORATION,

Defendant – Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Deborah K. Chasanow, Chief District 

Judge. (8:09-cv-02357-DKC)

Submitted: October 14, 2011 Decided: October 26, 2011

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Howard H. Stahl, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP, 

Washington, D.C., for Appellant. Jeffrey F. Gersh, GERSH DERBY, 

Encino, California, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Bethesda Softworks, L.L.C. (“Bethesda”), sought a 

preliminary injunction in the district court prohibiting 

Interplay Entertainment Corp. (“Interplay”) from infringing 

Bethesda’s copyrighted works relating to the “Fallout” video 

game series. The district court denied the motion. Bethesda 

appeals, arguing that the district court abused its discretion 

and misapplied the law in concluding that Bethesda failed to 

establish a likelihood of irreparable harm. We affirm.

We review the district court’s resolution of a motion 

for preliminary injunction for abuse of discretion. WV Ass’n of 

Club Owners & Fraternal Servs. Inc. v. Musgrave, 553 F.3d 292, 

298 (4th Cir. 2009). A district court abuses its discretion 

when it denies a preliminary injunction motion only if it bases 

its decision on an erroneous legal standard or clearly erroneous 

factual findings. Id.

“A preliminary injunction is an extraordinary remedy, 

to be granted only if the moving party clearly establishes 

entitlement to the relief sought.” Manning v. Hunt, 119 F.3d 

254, 263 (4th Cir. 1997) (internal quotation marks and 

alteration omitted). Entitlement to relief is determined by 

considering four factors: (1) that the plaintiff “is likely to 

succeed on the merits,” (2) that the plaintiff “is likely to 

suffer irreparable harm in the absence of preliminary relief, 
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[(3)] that the balance of equities tips in [the plaintiff’s]

favor, and [(4)] that an injunction is in the public interest.” 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 

(2008). An injunction “is not granted as a matter of course,” 

Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010), and “whether to 

grant the injunction still remains in the ‘equitable discretion’

of the [district] court” even when a plaintiff has made the 

requisite showing. Christopher Phelps & Assocs., LLC v. 

Galloway, 492 F.3d 532, 543 (4th Cir. 2007).

First, Bethesda notes that the parties agreed that a 

breach of the Asset Purchase Agreement (“APA”) would “result in 

irreparable injury for which there is no adequate remedy at 

law,” such that “[Bethesda] shall be entitled to equitable 

relief” in the event of a breach. (J.A. 76).1

 1 The citations to “J.A. [page number]” refer to the Joint 

Appendix filed by the parties in this appeal.

 Bethesda argues 

that, in light of the APA, the district court abused its 

discretion in concluding that Bethesda did not establish 

irreparable harm. However, as the Tenth Circuit concluded after 

canvassing extant case law, contractual agreements alone do not 

control the district court’s exercise of its equitable 

discretion. See Dominion Video Satellite, Inc. v. Echostar 

Satellite Corp., 356 F.3d 1256, 1266 (10th Cir. 2004) 
4

(identifying factors courts consider in determining whether 

plaintiff has established irreparable harm). The Second 

Circuit’s decision in North Atlantic Instruments, Inc. v. Haber, 

188 F.3d 38 (2d Cir. 1999), cited by Bethesda, is not to the 

contrary. Accordingly, we conclude that the district court did 

not abuse its discretion when it looked beyond the parties’ 

stipulation to determine whether Bethesda had established 

irreparable harm.

Second, relying on Hughes Network Systems, Inc. v. 

InterDigital Communications Corp., 17 F.3d 691 (4th Cir. 1994),

Bethesda argues that Interplay’s insolvency establishes 

irreparable harm because, even if damages could adequately 

remedy the alleged infringement, Bethesda would be unable to 

recover in the event that Interplay enters bankruptcy. In 

Hughes Network Systems, we noted that a preliminary injunction 

is not normally available where the harm at issue can be 

remedied by money damages. Id. at 693-94. However, we stated 

that, “[e]ven if a loss can be compensated by money damages . . 

. , extraordinary circumstances may give rise to the irreparable 

harm required for a preliminary injunction.” Id. at 694. We 

explained that such circumstances may exist where, for example,

“the moving party’s business cannot survive absent a preliminary 

injunction or where damages may be unobtainable from the 

defendant because he may become insolvent before a final 
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judgment can be entered and collected.” Id. (internal 

quotations marks and alterations omitted). In the narrow 

circumstances in which preliminary injunctions are warranted 

despite the adequacy of money damages, injunctions are 

“carefully tailored, generally operating simply to preserve the 

plaintiff’s opportunity to receive an award of money damages at 

judgment.” Id.

Hughes Network Systems does not support the conclusion 

that Interplay’s alleged insolvency warrants a finding of 

irreparable harm supporting the injunctive relief Bethesda 

seeks. “The traditional office of a preliminary injunction is 

to protect the status quo and to prevent irreparable harm during 

the pendency of a lawsuit ultimately to preserve the court’s 

ability to render a meaningful judgment on the merits.” In re 

Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 

(4th Cir. 2003). Hughes contemplates that insolvency may alter 

the status quo and undermine a court’s ability to render a 

meaningful judgment. Hughes, 17 F.3d at 694. Thus, a 

preliminary injunction may be appropriate “to preserve the 

plaintiff’s opportunity to receive an award of money damages at 

the judgment.” Id. Here, the injunctive relief that Bethesda 

seeks would not preserve Interplay’s assets such that Interplay 

could satisfy a judgment in the event Bethesda prevails on the 

merits. 
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Third, Bethesda argues that irreparable harm may be 

presumed at the preliminary injunction stage in a copyright case 

once the plaintiff has shown a likelihood of success on the 

merits. At one time, federal courts, including this circuit, 

presumed irreparable harm in copyright cases once the plaintiff 

established probable likelihood of success on the merits. See, 

e.g., In re Microsoft Corp. Antitrust Litig., 333 F.3d at 536; 

Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 

522, 532-33 (6th Cir. 2004); Elvis Presley Enters. v. Passport 

Video, 349 F.3d 622, 627 (9th Cir. 2003);2

 2 The Ninth Circuit later held that the presumption no 

longer was valid. See Flexible Lifeline Sys., Inc. v. Precision 

Lift, Inc., __ F.3d __, __, 2011 WL 3659315, at *9 (9th Cir. 

2011).

Random House, Inc. v. 

Rosetta Books LLC, 283 F.3d 490, 491 (2d Cir. 2002). In 2006, 

the Supreme Court declared such presumptions inappropriate. 

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). 

Instead, courts are to apply the “well-established principles of 

equity” and grant injunctive relief only after a plaintiff 

satisfies the traditional four-factor test. Id. at 391. 

Although eBay concerned a patent dispute, the Supreme Court 

observed that its approach was “consistent with our treatment of 

injunctions under the Copyright Act,” noting that the Court “has 

consistently rejected invitations to replace traditional 
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equitable considerations with a rule that an injunction 

automatically follows a determination that a copyright has been 

infringed.” Id. at 392-93.

Bethesda seeks to distinguish eBay as a permanent 

injunction case, inapplicable to its request for a preliminary 

injunction. Bethesda relies on the distinction between 

preliminary and permanent injunctions, noting that a permanent 

injunction requires a showing of irreparable harm whereas a 

preliminary injunction requires only a likelihood of irreparable 

harm. Bethesda argues that copyright infringement is likely to 

result, thereby meeting the preliminary injunction standard, due 

to the intangible nature of copyrights. Bethesda relies on our 

decision in Christopher Phelps & Associates, LLC v. Galloway, 

492 F.3d 532 (4th Cir. 2007), as support for its position. 

The Supreme Court’s decision in eBay rested on 

principles of equity. See eBay, 547 U.S. at 391-92. Despite 

the differences between preliminary and permanent injunctive 

relief, the same equitable principles undergird courts’ 

authority in each posture. The differences are therefore 

insufficient to warrant a presumption of irreparable harm with 

respect to preliminary injunctions but not permanent 

injunctions. See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 

531, 544-46 & n.12 (1987) (rejecting presumption of irreparable 

harm upon violation of environmental statute and finding no 
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significant difference between preliminary and permanent 

injunction standards); Winter v. Natural Res. Def. Council, 

Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an 

extraordinary remedy never awarded as of right.”). The Courts 

of Appeals to consider this question have held that eBay applies 

to permanent and preliminary injunctions with equal force. 

Flexible Lifeline Sys., Inc., __ F.3d at __, 2011 WL 3659315, at 

*7-*9; Voice of the Arab World, Inc. v. MDTV Med. News Now, 

Inc., 645 F.3d 26, 34 (1st Cir. 2011); Salinger v. Colting, 607 

F.3d 68, 77 (2d Cir. 2010). We agree with this conclusion.

Bethesda points to our observation in Phelps & 

Associates that “[i]rreparable injury often derives from the 

nature of copyright violations, which deprive the copyright 

holder of intangible exclusive rights.” Phelps & Assocs., 492 

F.3d at 544. Bethesda argues that this language supports a 

rebuttable presumption because irreparable harm is likely to 

result from copyright infringement. However, this reading of 

Phelps & Associates is impermissibly broad. Following eBay, we 

ruled that “[i]nsofar as Phelps & Associates suggests that it is 

entitled to injunctive relief, we reject the argument.” Id. at 

543. We then analyzed the circumstances surrounding the 

infringement and concluded that Phelps & Associates had 

demonstrated irreparable harm. Id. at 544. Our conclusion was 

not based on the intangible nature of the copyright alone, as 
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such reasoning would lead to the very presumption that eBay

prohibits, but on the circumstances surrounding the 

infringement.

Lastly, Bethesda argues that the district court 

misapplied the legal standard for preliminary injunctive relief 

by requiring Bethesda to identify with particularity each 

element of the copyrighted works being infringed and the 

resulting specific, tangible harm. We disagree with Bethesda’s 

characterization of the district court’s reasoning. Our review 

of the record leads us to conclude that the district court did

not demand the high degree of particularity that Bethesda 

claims; rather it required that Bethesda demonstrate copyright 

infringement “that can be stopped or needs to be stopped before 

it causes irreparable harm to [Bethesda].” (J.A. 409). The 

district court found unconvincing Bethesda’s claim that its 

alleged loss of intangible rights in the copyrighted material 

alone established irreparable harm because “[t]here is no 

evidence that the development has been made public to anybody. 

It is an internal development project. There can be no launch 

of an MMOG by Interplay without express permission from 

Bethesda.” (J.A. 419). We conclude that the district court 

applied the proper standard. To the extent that Bethesda argues 

the nature of its intangible rights are such that the district 

court should have inquired no further than whether Interplay 
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infringed Bethesda’s copyright, this position has been resolved 

to the contrary by the Supreme Court’s decision in eBay.

Based on the foregoing, we affirm the order of the 

district court. We deny Bethesda’s motion to file a 

supplemental appendix. We dispense with oral argument because 

the facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

AFFIRMED