The Continuing Vitality of the Presumption of Irreparable Harm in Copyright Cases

INTRODUCTION I. REFINING SECTION 502(A)'S GRANT OF POWER INTO THE TRADITIONAL RULE A. Section 502(a) Creating the Ambiguity with Permissive Plain Language B. Legislative History Deepening the Ambiguity with Conflicts between Entitlement and Discretion 1. Suggesting Discretion by Rebutting Section 101's Entitlement Language with Court Practice 2. Pointing Toward Discretion in the Register's Report 3. Almost Confirming Discretion but Also Noting Entitlement in House Report 1476 C. Caselaw Replacing the Legislative Ambiguity with the Traditional Rule II. REINTRODUCING AMBIGUITY FASHIONED AS DISCRETION: EBAY V. MERCEXCHANGE AND SUBSEQUENT DECISIONS A. eBay v. MercExchange's Series of Multi-Factor Tests 1. The Battle of Presumptions on the Path to the Supreme Court 2. The Supreme Court's Oral Musings on Irreparable Harm 3. The Supreme Court's Decision in Favor of Discretion and Tradition 4. The District Court's Construing the eBay Holding as a Rejection of the Presumption of Irreparable Harm B. The Split of Authority Grappling with the Presumption after eBay v. MercExchange 1. Cases Rejecting the Presumption of Irreparable Harm 2. Cases Retaining the Presumption of Irreparable Harm III. USING THE TRADITIONAL RULE AS A BLUEPRINT: WHY THE COURTS SHOULD CONTINUE TO PRESUME IRREPARABLE HARM A. Protecting Copyright's Property Right to Exclude B. Judicial Distrust of Defendant's Assertions of Voluntary Cessation C. The Interdependent Relationship between Rights and Remedies D. Conserving Judicial Resources by Recognizing Trends E. Allowing General Rules while Prohibiting Categorical Rules F. Following the History and Tradition of Equity Practice . CONCLUSION INTRODUCTION Permanent injunctions are powerful remedies. Compared to other forms of relief, they can even be called extraordinary. (1) When entered, they order defendants to cease the conduct that created their liability absolutely. Paired with the threat of contempt, parties who contravene them risk criminal condemnation. In a sense, a plaintiff requesting injunctive relief is effectively asking the court to draft a criminal statute for that single plaintiff's benefit and to that single defendant's detriment. (2) Given permanent injunctions' potency, it should come as no surprise that some believe that courts should reserve injunctions for only the most exceptional circumstances. (3) Yet, judicial reluctance to grant permanent injunctions is not mandated by the Copyright Act. To the contrary, 17 U.S.C. [section] 502(a) confers upon the courts the authority to enjoin copyright infringement, (4) while largely failing to provide direction on how that authority should be exercised. More specifically, the statute's text lacks description of the scope of the power to order permanent injunctions and how frequently it should be invoked. (5) Absent further guidance from the statute's legislative history, (6) the only tools available to courts deciding whether to permanently enjoin copyright infringement are [section] 502(a)'s ambiguous text (7) and the history and traditions of equity. (8) The task of articulating the principles guiding judicial discretion to order permanent injunctions has thus fallen on the courts. Following the 1976 Act's enactment, the courts have roundly held that liability for infringement plus a threat of future infringement entitled copyright owners to permanent relief, without any burden on the copyright owner to demonstrate irreparable harm. (9) This rule has been a boon for plaintiffs, with courts routinely entering permanent injunctions after finding defendants liable for copyright infringement. …