Ninth Circuit Declares that “The King” Is Dead (in Copyright Cases)

Merely weeks after a separate panel considered the impact of the Supreme Court’s 2006 ruling in the patent infringement case eBay Inc. v. MercExchange, L.L.C. on copyright cases—Perfect 10 Inc. v. Google Inc., Case No. 10-56316 (9th Cir., Aug. 3, 2011)—the U.S. Court of Appeals for the Ninth Circuit once again held that held that irreparable harm may no longer be presumed upon showing a likelihood of success when seeking preliminary or permanent injunctive relief in copyright infringement cases. Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., Case No. 10-35987 (9th Cir., Aug. 22, 2011) (per curiam).

Flexible Lifeline sued the defendants for copyright infringement of certain technical drawings of aircraft maintenance stands. Flexible Lifeline also sought a preliminary injunction against Precision Lift and its founder John Tollenaere (collectively, the defendants. Finding that Flexible Lifeline was likely to success in its infringement suit, the district court granted the injunction relying on long-standing 9th Circuit precedent that presumes irreparable harm upon a showing of likelihood success on the merits. The defendants appealed, arguing that the court erred in granting Flexible Lifeline a presumption of irreparable harm based upon the Supreme Court’s holdings in eBay and Winter v. Natural Resources Defense Council, Inc.

The 9th Circuit agreed with the defendants. Declaring that “the King is dead,” the court vacated the preliminary injunction and held that “[the 9th Circuit’s] long-standing precedent finding a plaintiff entitled to a presumption of irreparable harm on a showing of likelihood of success on the merits in a copyright infringement case, as stated in Elvis Presley [v. Passport Video] and relied on by the district court, has been effectively overruled.”

Practice Note: While the 9th Circuit’s Perfect 10 decision not determine whether the 9th Circuit’s traditional presumption of irreparable harm in trademark cases is abrogated by eBay, the court in this case indicated in dicta in a footnote that the overruling of the presumption very well may also apply to trademark cases, noting that the court was unaware of any trademark case in which a circuit court has upheld the presumption of irreparable harm after eBay.