September 08, 2011

Partners Steven B. Fabrizio and Andrew J. Thomas authored “Copyright injunctions after eBay” as the September article for the Creative Content group's monthly column “Content Matters,” which appears in the Los Angeles Daily Journal and the San Francisco Daily Journal.  In this month's article, the authors discuss how the U.S. Supreme Court’s 2006 decision in eBay Inc. v. MercExchange has changed what used to pass for conventional wisdom in the fields of copyright and trademark law.  At one time in copyright and trademark cases, irreparable harm would be presumed and an injunction would issue upon proof of the defendant’s infringing conduct.  Since then, several U.S. Circuit courts have now held that a showing of a likelihood of success on the merits in a copyright action does not create a presumption of irreparable harm for purposes of preliminary injunction determination and plaintiffs seeking a permanent injunction must now satisfy the traditional four-factor equitable test for injunction relief.  Through the examination of several recent cases, the article discusses how copyright injunctions have changed in the wake of the eBay decision.