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Full-Text Articles in Legal Remedies
Withholding Injunctions In Copyright Cases: Impacts Of Ebay, Pamela Samuelson
Withholding Injunctions In Copyright Cases: Impacts Of Ebay, Pamela Samuelson
William & Mary Law Review
Before the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C., which ruled that courts should exercise equitable discretion when considering whether to issue permanent injunctions in patent infringement cases, courts routinely granted injunctions in copyright cases when plaintiffs proved that defendants had infringed or had likely infringed copyrights. Such findings triggered presumptions of irreparable harm, which were almost never rebutted. Only rarely would courts consider a balancing of hardships or effects of injunctions on public interests.
In the first several years after eBay, commentators reported that eBay had had little impact on the availability of injunctive …
Copyright Essentialism And The Performativity Of Remedies, Andrew Gilden
Copyright Essentialism And The Performativity Of Remedies, Andrew Gilden
William & Mary Law Review
This Article critically examines the interrelationship between substantive copyright protections and the remedies available for infringement. Drawing from constitutional remedies scholarship and poststructural theories of performativity, it argues that a court’s awareness of the likely remedy award in a particular dispute —combined with its normative view of how future actors should address similar disputes—“reaches back” and shapes the determination of the parties’ respective rights.
Copyright scholars have long sought to limit the availability of injunctive relief, and several recent court decisions have adopted this reform. For example, in Salinger v. Colting the Second Circuit vacated a preliminary injunction against a …