Perfect 10 v. Google

In a case for preliminary injunction relief, a plaintiff’s likelihood of success on the merits does not create a presumption that there will be a likelihood of irreparable harm if an injunction is not granted.

Perfect 10, Inc. brought suit against Google, Inc. for copyright infringement and requested a preliminary injunction for relief. Perfect 10 commercially creates, copyrights and distributes photographic images of nude models to subscribers of their paid-subscription website. Perfect 10 alleged that “it was entitled to an injunction because Google’s web and image search and related caching feature, its Blogger service, and its practice of forwarding Perfect 10’s takedown notices to chillingeffects.org constituted copyright infringement.” The district court denied their arguments for preliminary injunctive relief, stating Perfect 10 had not shown it was likely to suffer irreparable harm if relief was not granted, and that Google was entitled to safe harbor protection under the Digital Millennium Copyright Act (“DMCA”). Perfect 10 appealed, alleging that since it made a strong showing of a likely success on the merits, the court must presume it would suffer irreparable harm. For preliminary injunctive relief a plaintiff must show “(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.” The Ninth Circuit, relying on eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), held that each factor should be viewed individually, abrogating the presumption that a plaintiff’s likelihood of success on the merits establishes a likelihood of irreparable harm if an injunction is not granted. The Ninth Circuit also held that although bankruptcy can be a form of irreparable harm, Perfect 10 had failed to show that injunction against Google would forestall that fate, and therefore was not a “sufficient causal connection” between Google and Perfect 10’s potential bankruptcy. AFFIRMED.