No preliminary injunction in the Jacobsen case [LWN.net]

Last year, the Jacobson/JMRI case produced an appeals court ruling to the effect that free software licenses are truly licenses; that result was seen as big victory for the community. Now the Law & Life: Silicon Valley weblog reports that, back in District Court, a request for a preliminary injunction based on that ruling has been turned down. "The District Court drew on a very recent Supreme Court decision which required a higher standard of proof of damages for the grant of a preliminary injunction: Jacobsen must prove that he is 'likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor and that an injunction is in the public interest'. The Court then noted that Jacobsen had made no showing that he had actually suffered any of these potential harms and that Jacobsen had 'failed to proffer any evidence of any specific and actual harm suffered as a result of the alleged copyright infringement and he has failed to demonstrate that there is any continuing or ongoing conduct that indicates future harm is imminent.'"

No preliminary injunction in the Jacobsen case

Posted Jan 7, 2009 15:06 UTC (Wed) by elanthis (guest, #6227) [Link] (1 responses)

My Law-fu is weak. Does this essentially mean that the courts don't give two shits about enforcing Free/Open licenses because the copyright holders aren't trying to make a profit off of their copyrighted works?

No preliminary injunction in the Jacobsen case

Posted Jan 7, 2009 17:19 UTC (Wed) by iabervon (subscriber, #722) [Link]

No, this means that offenders can go on offending until they lose the lawsuit, because they can be punished and the rightful owners can benefit just as well after the case as in the middle.

A preliminary injunction is about having the court do something before you've won your case, when you're asking the court to stop the other party from doing something during the case that can't be fixed afterwards. If you had a case where the defendant was planning to delete all the plaintiff's data, and the plaintiff went to the court saying that the defendant shouldn't be allowed to do that, if the court thought the plaintiff might win, it could rule that the defendant can't delete the data until the whole thing is settled, even though the plaintiff hasn't proved anything in detail yet, because it would be too late to save the data by the time the case is settled otherwise. Since a preliminary injunction asks that the court act on an argument that hasn't been settled, there's a requirement that what's asked for be impossible later.

The court ruled that everything Jacobsen asked for could be granted after the case is over, and so, no matter how good Jacobsen's case is, he can wait. I think, in any case about enforcing Free/Open licenses, a preliminary injunction is going to be unlikely. The usual argument for a preliminary injunction in a copyright case is that, once an end user has some content, it's impossible to get them to not have it. But we generally want the end user to have the content plus some other information, which can be fixed up later.

No preliminary injunction in the Jacobsen case

Posted Jan 7, 2009 15:27 UTC (Wed) by DeletedUser32991 ((unknown), #32991) [Link] (2 responses)

Isn't copyright infringement a criminal offence? That might provide an incentive to not continue doing it even in lieu of an injunction.

No preliminary injunction in the Jacobsen case

Posted Jan 7, 2009 21:38 UTC (Wed) by bojan (subscriber, #14302) [Link]

Generally speaking, no. Only under some circumstances it does become one.

No preliminary injunction in the Jacobsen case

Posted Jan 7, 2009 22:57 UTC (Wed) by Wol (subscriber, #4433) [Link]

Depends on jurisdiction.

Certainly under UK law, what's been going on (if satisfactorily proven) is VERY criminal.

Cheers,
Wol

No preliminary injunction in the Jacobsen case

Posted Jan 7, 2009 16:41 UTC (Wed) by sepreece (guest, #19270) [Link] (3 responses)

As I understand it [IANAL] this is just about the request for a preliminary injunction. It used to be that such injunctions (barring defendant from using the material while the suit proceeds) were granted almost by default, but the Supreme Court recently raised the bar for such requests. This wouldn't necessarily affect whether there could be such an injunction later, or whether the plaintiff could later recover damages (including statutory damages).

One can imagine that a court might find it hard to see "irreparable harm" in delaying injunctive relief in cases involving free-software licenses. At the very least, plaintiff would have to present evidence of the potential for such harm...

No preliminary injunction in the Jacobsen case

Posted Jan 7, 2009 19:59 UTC (Wed) by ncm (guest, #165) [Link] (2 responses)

The irreparable harm is suffered by the legitimate licensees, competed against unfairly by the violator.

No preliminary injunction in the Jacobsen case

Posted Jan 7, 2009 20:47 UTC (Wed) by sepreece (guest, #19270) [Link] (1 responses)

I think selling that argument would require the copyright holder to convince the court that there was damage to the copyright holder as a result of such competition (such as licensees dropping their licenses, support contracts, etc.); I think that's a hard sell if there's no direct gain to the copyright holder as a result of gaining licensees (e.g., because the licenses are free). You would also have to convince the judge that there was such unfair competition to begin with; since that would require significant financial analysis (probably requiring documents only available through discovery), it doesn't seem like a pre-trial issue.

[Again, IANAL.]

No preliminary injunction in the Jacobsen case

Posted Jan 11, 2009 0:31 UTC (Sun) by dirtyepic (guest, #30178) [Link]

Even if licenses weren't free, it boils down to monetary damages which are hardly irreparable.

No preliminary injunction in the Jacobsen case

Posted Jan 8, 2009 15:14 UTC (Thu) by Simetrical (guest, #53439) [Link]

The relevant bit of the decision begins on page 11. It used to be that anyone filing a copyright infringement suit could get an injunction pretty much automatically, which was generally good for free software (since the free software owners are normally the plaintiffs in these cases). But now the Supreme Court has ruled that injunctions in copyright cases were being handed out too freely, so they're going to become the exception, not the norm, in copyright cases. This might make companies more willing to take cases to court, I guess, although (like everyone else here) IANAL.

A relevant quote from the decision:

"Initially, when this matter was before the Court on a motion for preliminary injunction, federal copyright law provided that a plaintiff who demonstrates a likelihood of success on the merits of a copyright claim was automatically entitled to a presumption of irreparable harm. Id. at 1119 (citing Cadence Design Systems v. Avant! Corp., 125 F.3d 824, 826-27 (9th Cir. 1997)). That presumption means that the balance of hardships issue cannot be accorded significant if any weight in determining whether a court should enter a preliminary injunction to prevent the use of infringing material in cases where ... the plaintiff has made a strong showing of likely success on the merits. Sun, 188 F.3d at 1119 (citing Cadence, 125 F.3d at 830 (internal quotations omitted)).

"However, because of the passage of time, the governing law has changed. Now, a plaintiff is not granted the presumption of irreparable harm upon a showing of likelihood of success on the merits. Instead, a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Resources Defense Council, 129 S. Ct. 365, 374 (2008) (citations omitted). In this recent case, the Supreme Court found that the Ninth Circuits standard of the likelihood of irreparable injury was too lenient and held that a plaintiff must demonstrate that irreparable injury is likely in the absence of an injunction. Id. at 375. Issuing a preliminary injunction based only a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Id. at 375-76 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). Because a preliminary injunction is an extraordinary remedy, [i]n each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Id. at 376 (citing Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987)). In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Id. at 376-77 (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982))."