Monday, March 10, 2008

Gomez-Arostegui on What History Teaches Us about Copyright Injunctions and the Inadequate-Remedy-At-Law Requirement

Tomas Gomez-Arostegui, Lewis & Clark Law School, did research at the National Archives of the U.K. (aka PRO) for his new paper, What History Teaches Us About Copyright Injunctions and the Inadequate-Remedy-At-Law Requirement. Here's the abstract:
Our Supreme Court has held that as a general matter an injunction cannot issue if there is an adequate remedy at law. This follows, according to the Court, because the standard for when injunctions may issue derives directly from the practice of the English Court of Chancery around 1789, which followed the same principle. This Article argues that the Supreme Court's reading of general Chancery custom is inapposite in copyright cases, and that, as a matter of historical practice, the Chancery never inquired into whether a copyright plaintiff had an adequate remedy at law. The remedies at law were deemed categorically inadequate. The Supreme Court could thus hold today, without running afoul of traditional equitable principles, that a copyright injunction can issue without regard to the adequacy of money damages. This Article reaches its conclusion only after undertaking the most comprehensive treatment of the subject to date. It relies primarily on the original manuscript records of 215 infringement suits brought in the Court of Chancery from 1660 to 1800, which are stored at the National Archives in Kew, England, and a further review of earlier copyright-infringement suits circa 1557 to 1660 in antecedent tribunals, many of which are also only available in manuscript form. The topic of this Article is particularly timely given the Supreme Court's recent decision in eBay Inc. v. MercExchange, L.L.C. (2006), where it discussed the standard for issuing injunctions in patent cases, and where Chief Justice Roberts stated in a concurring opinion that lower courts should consider the inadequacy requirement in light of historical practices.

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