July 25, 2014

Preliminary Injunction: An Important Tool in Copyright Infringement Litigation

Computer programs are protected under the U.S. Copyright Act. The owner of the copyright holds the right to exclude others from copying their software, making works derivative of it, and from distributing or using it.

To prove a claim of copyright infringement a plaintiff must demonstrate:

  • - Ownership of a valid copyright;
  • - Copying the elements of the work that are original; OR
  • - Intentionally inducing or encouraging direct infringement of the copyright.

In a copyright infringement lawsuit, a preliminary injunction can be a useful tool to use early in the litigation. To obtain a preliminary injunction a party must show:

  • - Likelihood of success on the merits of the case;
  • - That he or she is likely to suffer irreparable harm in the absence of preliminary relief;
  • - That the balance of equities tips in his favor;
  • - That the injunction is in the public interest.

While each factor is considered by the court, the likelihood of success is often the most important factor. For instance, the 1st Circuit recently allowed a preliminary injunction which forced a defendant to stop selling certain software as well as recall all existing licensees of the product. See Accusoft Corporation v. Quest Diagnostics, Inc., 2012 U.S. Dist. LEXIS 54216 (D. Mass. Apr. 18, 2012).

In Accusoft, the 1st Circuit held that in a software infringement case, irreparable harm is essentially proven once success on the merits of the case is shown. The Court reasoned that "[i]n an industry where exclusive control of intellectual property is crucial to profitability, it is understandable that plaintiff fears that unchecked distribution of its code will lead to market disadvantages that cannot be corrected."

The Court has therefore sidestepped the issue presented in ebay Inc. V. MercExchange, L.L.C., 547 U.S. 388, 393 (2006) in which the Supreme Court held that categorical rules regarding the presumption of irreparable harm should not be used in a patent infringement action. While the 1st Circuit has not decided whether ebay "precludes application of the traditional presumption of harm in other fields of intellectual property law," the recent decision in Accusoft provides insight that, at least in cases alleging software infringement, irreparable harm will be presumed once a plaintiff shows likelihood of success on the merits.

The use of the preliminary injunction therefore allows the party to obtain significant relief at an early stage of the litigation. An experienced attorney can assist you or your company in evaluating disputes surrounding infringement of software code and copyrights.

© 2014 by Raymond Law Group LLC.

About the Author


Stephen G. Troiano focuses his practice on a wide variety of business and civil litigation. Attorney Troiano began his legal career with Raymond Law Group. He represents clients in state and federal courts in civil litigation matters with a focus on business, financial, technology and insurance disputes. He is a member of the Massachusetts Bar Association, Defense Research Institute, and the Boston Bar Association.

Areas of Practice

  • Business Litigation
  • Products Liability
  • Personal Injury
  • Premises Liability
  • ...

Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.