Citation: Matthew Sag & Pamela Samuelson, Discovering eBay’s Impact on Copyright Injunctions Through Empirical Evidence, 64 William & Mary Law Review 1447 (2023)
In a nutshell:
In Discovering eBay’s Impact on Copyright Injunctions Through Empirical Evidence, Matthew Sag and Pamela Samuelson argue that the widely accepted claim that copyright courts ignored the Supreme Court’s 2006 decision in eBay v. MercExchange rests on data from too early a period: eBay changed copyright injunction practice after a delay, once the courts of appeals began enforcing it in 2010 and 2011.
Summary
The conventional wisdom the article tests comes from Jiarui Liu’s 2012 study, which reported that in the first four years after eBay, only 11 percent of copyright injunction decisions cited the case and that grant rates remained very high. A leading treatise and scores of commentators adopted those findings as definitive. We hypothesized instead that the early data reflected hysteresis, a time lag between cause and effect, as district courts bound by pre-eBay circuit precedent waited for a clear appellate signal before abandoning the presumption of irreparable harm. That signal arrived in 2010 and 2011, when the Second and Ninth Circuits, in Salinger v. Colting and Flexible Lifeline Systems, reversed lower courts for failing to follow eBay.
We assembled a dataset of 518 copyright injunction decisions from federal district courts between 2000 and 2019, including a random sample of unreported cases, and separated contested cases from default judgments. The citation data contradict Liu: courts cited eBay in 30 percent of contested cases even in the immediate aftermath period, and from 2011 through 2019, 60 percent of contested copyright injunction decisions cited eBay or one of its progeny (Winter, Salinger, or Flexible). Judicial language changed too: before eBay, only 6 percent of contested permanent injunction decisions discussed balancing the hardships between the parties; by 2015-2019, 70 percent did.
Grant rates tell the same story. Permanent injunctions in contested cases fell from 81 percent before eBay to 70 percent in 2015-2019, and preliminary injunction grants fell from 63 percent to 42 percent. Regression analysis shows that the decline for permanent injunctions became statistically significant only after 2012, consistent with hysteresis, while the drop in preliminary injunction grants was immediate. Requests for injunctive relief also fell sharply relative to the number of copyright cases filed, suggesting that plaintiffs internalized the more demanding standard.
Why read this article?
The article provides a compact doctrinal history of injunctive relief in intellectual property cases, from the pre-eBay presumption of irreparable harm through eBay, Winter, and the appellate turning points in Salinger and Flexible. It also offers a candid discussion of the methodological problems of studying litigated cases, including Priest-Klein selection effects, and an appendix showing that apparent differences between reported and unreported decisions are largely a product of default judgments.
Readers also get a practical picture of post-eBay copyright litigation: the fact patterns in which courts now withhold injunctions, drawn from Samuelson’s earlier qualitative study, and a comparison with Christopher Seaman’s parallel findings in patent cases, where contested permanent injunction grant rates have settled at almost the same level.
Further Reading
Jiarui Liu, Copyright Injunctions After eBay: An Empirical Study, 16 Lewis & Clark Law Review 215 (2012) – The influential early study reporting that courts largely ignored eBay in copyright cases; this article revisits its conclusions with a longer timeline and a larger dataset.
Christopher B. Seaman, Permanent Injunctions in Patent Litigation After eBay: An Empirical Study, 101 Iowa Law Review 1949 (2016) – An empirical study of 218 contested permanent injunction decisions in patent cases, finding that operating companies still usually obtain injunctions while non-practicing entities are almost always denied them.
Mark P. Gergen, John M. Golden & Henry E. Smith, The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions, 112 Columbia Law Review 203 (2012) – This article argues that eBay, though framed as a restatement of traditional equitable principles, in fact worked a far-reaching change in the law of permanent injunctions well beyond patent cases.
Mark A. Lemley, Did eBay Irreparably Injure Trademark Law?, 92 Notre Dame Law Review 1795 (2017) – Lemley contends that while eBay was a good development in patent and copyright law, trademark courts have misread it by treating each of the four factors as a strict requirement rather than a consideration.