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Injunctions are not a replacement for damages

Injunctions are not a replacement for damages

Posted Mar 9, 2013 3:04 UTC (Sat) by tialaramex (subscriber, #21167)
In reply to: VP8 and MPEG LA (WebM blog) by iabervon
Parent article: VP8 and MPEG LA (WebM blog)

Not being able to impose an injunction doesn't mean that there are no consequences.

Injunctions are a means of _preventing harm_. The court must be persuaded that without the injunction some type of harm will occur to the plaintiff (e.g. their priceless 10th century wall painting will be destroyed, or their stranglehold on the desktop PC market will be broken) which is unlawful, and which cannot be made right through any of the court's normal remedies (e.g. monetary damages). If this is so it can decide based on very limited evidence (often timely action is essential) that the plaintiff is on balance likely to succeed in their claim and that it's not excessive to prevent the defendant from doing something (e.g. demolishing the wall, or shipping a new OS) meanwhile.

But even without an injunction all the ordinary remedies are still available. You just have to actually go through the entire lawsuit process to reach a judgement and get the remedy you want, rather than cutting straight to the injunction and hoping it strangles the defendant so badly that they've no choice but to forfeit their day in court altogether.

A world where Apple can ship infringing iPhones despite a lawsuit, but then has the bailiffs at One Infinite Loop repossessing the office furniture is not one where there "aren't any meaningful consequences" to not paying.

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