Private Law Theory

Introduction:
… Part I of this Note discusses the traditional four-factor test for preliminary injunctions, with an emphasis on the irreparable harm factor. It examines the evolution of this legal standard in both the Second and Ninth Circuits following eBay, using Garcia and Aereo as the leading cases. Part II highlights the differences between the two circuits’ approaches to irreparable harm by exploring how the cases might come out if the approaches used by each circuit were switched. This Part then criticizes both the Second and Ninth Circuits’ approaches to irreparable harm by examining their shortcomings in promoting copyright law’s utilitarian aim of incentivizing artists to generate creative expression. In doing so, this Part explores existing literature that proposes adding a harm requirement to other areas of copyright law and incorporates it in a normative framework that brings injuries to copyright owners’ pecuniary, as well as nonpecuniary, interests within the scope of irreparable harm. Part III offers such an all-encompassing theory of irreparable copyright harm and illustrates that this proposal is a middle ground between the Second and Ninth Circuits’ present approaches … (more)

Arielle Matza, ‘What’s the [Irreparable] Harm?: Incentivizing Creativity Through Preliminary Injunctions in Copyright Law’, Cardozo Law Review volume 38, April 2017, number 4.

First posted 2017-07-10 11:35:23