The Hysteresis Thesis: An Empirical Study of Copyright Injunctions After eBay

Abstract

The Supreme Court’s 2006 decision in eBay v. MercExchange seemingly heralded a major change in not only patent law but also copyright law. The Court ruled that injunctions for patent infringement should no longer be granted automatically; instead, plaintiffs must establish the need for injunctive relief in particular and that such relief would be in the public interest. Although eBay concerned a patent claim, its reasoning relied on three copyright decisions, making its application to copyright cases compelling. Nevertheless, lower courts in some early post-eBay copyright cases rebuffed arguments that the Court’s ruling affected grants of injunctive relief. A 2012 empirical study of the first four years of post-eBay copyright cases seemed to show that those early cases were not aberrations, reporting that courts rarely cited eBay and continued to grant injunctions in a high percentage of copyright cases. Those conclusions were broadly accepted by the field. This Article tests these claims and finds statistically significant differences in the grant rate for both preliminary and permanent injunctions in copyright cases after the eBay decision. The impression of eBay lacking effect appears to be a product of hysteresis—a time lag between cause and effect, as lower courts initially delayed but eventually embraced eBay. This study reveals, moreover, that the earlier empirical study was flawed by biased sampling, most notably by including a large number of unreported cases and default judgments. This Article offers a corrective analysis and provides a more accurate understanding of the copyright injunction landscape, both pre- and post-eBay. It shows that eBay was in fact a landmark case for copyright law, both in terms of jurisprudence—it is highly cited—and real-world effect— it has a dramatic impact on case outcomes.