In 2006, the U.S. Supreme Court’s decision in eBay, Inc. v.
MercExchange, L.L.C. did more than establish the four-factor test that courts
must utilize when determining whether to grant permanent injunctions for patent
infringement.  It also spawned a movement
among lower courts to abandon the judicially created and sometimes-criticized
practice of presuming the most important factor of the injunction analysis—
irreparable harm—upon a showing of patent or copyright infringement.  Over the past several decades, presuming such
harm routinely permitted courts to automatically grant preliminary injunctions
once a plaintiff proved a likelihood of success on the merits.  This practice contrasted sharply with the
historical nature of preliminary injunctions as “extraordinary” relief, which
rested the burden of proof on the plaintiff.

In Jacobsen v. Katzer, the Federal Circuit became the first
circuit to directly address eBay’s potential application to preliminary
injunctions in the copyright context.  The Jacobsen court declined to invoke eBay’s standards, and instead
applied the Ninth Circuit’s pre-eBay presumption of irreparable harm, as
Federal Circuit precedent requires application of regional circuit law to
copyright matters.  This ruling contrasted
with every circuit to subsequently confront the issue, including the Ninth
Circuit, which effectively overruled the very presumption that the Jacobsen court utilized.  This Note posits that
the Jacobsen court erred in enforcing the presumption in a post-eBay landscape
to begin with, as eBay indeed abrogated the presumption of irreparable harm as
applied to copyright preliminary injunctions.  Further, it urges the Federal Circuit to apply eBay’s holding in future
copyright cases where the regional circuit has not directly addressed the
presumption’s post-eBay vitality.