The U.S. Court of Appeals for the Second Circuit issued what may be a landmark opinion on April 30, 2010. Applying a recent Supreme Court decision (eBay v. MercExchange), the Court of Appeals decision in Salinger v. Colting will make it more difficult for copyright-holders to silence defendants during litigation. ARL, along with our friends at the American Library Association, the Association of College and Research Libraries, the Right to Write Fund, and the Organization for Transformative Works, submitted an amicus brief in the case supporting Colting’s claim of fair use and disputing the district court’s reasoning in granting a preliminary injunction. The brief was prepared by Anthony Falzone of the Stanford Fair Use Project.
Federal courts often issue orders known as “preliminary injunctions” that require defendants to cease creating and distributing allegedly infringing works pending the outcome of a copyright lawsuit. These injunctions can be fatal when they force a defendant to stop producing and selling a product that is the sole source of funding for their defense. And when that product is a work of expression (as it must be to be the subject of a copyright dispute), there are genuine First Amendment concerns associated with silencing that expression.
The general rule for issuing a preliminary injunction requires the plaintiff to satisfy several factors, including showing that irreparable harm to the rightsholder will result if the defendant is not stopped even prior to a final decision from the court. In copyright and patent cases, however, courts have presumed that there will be irreparable harm if the rightsholder can show that the behavior is likely to be found infringing. The Court of Appeals’ decision does away with that presumption. Now a rightsholder must actually make a case for irreparable harm based on their individual circumstances, rather than relying on a presumption.
Friends of fair use should enjoy this decision while they can, as good news in this area of the law can seem like a rare phenomenon. The consequences of the decision are hard to predict. Mike Masnick over at TechDirt speculates that the ruling could lead to more forced licensing rather than injunctions against convicted infringers. Ben Sheffner points to an article (PDF) published prior to the opinion arguing that the consequences were not likely to be so dramatic.