I guess the subtitle for this post could be “Ninth Circuit Holds: Suing Google Is Not A Business Model.” In the seemingly endless litigation between purveyors of on-line nudie pictures, Perfect 10 [Warning: Link Not Workplace Friendly or Politically Correct or Tasteful], and Google, the Ninth Circuit has joined the rest of the copyright world in acknowledging that the presumption of irreparable harm, employed for many years by the federal courts, did not survive the Supreme Court’s eBay Inc. v. MercExchange, LLC decision. In doing so, the Ninth discussed and approved of the Second Circuit’s decision in Salinger v. Colting, which came to the same conclusion.
Having affirmed the district court’s destruction of the long-employed presumption, the court went on to affirm the district court’s finding that Perfect 10 had not presented sufficient evidence of irreparable harm to support a preliminary injunction. Apparently, Perfect 10’s sole argument for irreparable harm was that by providing free access to certain of Perfect 10’s images, Google was destroying Perfect 10’s business and driving it into bankruptcy. It seems to me that the legal expenses involved in litigating (and losing) against Google for about 20 years (OK, I exaggerate a bit sometimes) might have had more negative impact on Perfect 10’s balance sheet than any of Google’s services, and the Ninth Circuit apparently agreed. The court held that the district court had not abused its discretion in finding a lack of irreparable harm because Perfect 10 had not presented any evidence of an actual causal nexus between Google’s conduct and specific harm to its business. The court noted that other search engines and websites also featured copies of Perfect 10’s images, and no evidence had been presented of a single former customer who had ceased paying for a Perfect 10 subscription because of the content available through Google.
As a preliminary matter, it seems odd to me that Perfect 10 (and the court) would focus pretty much exclusively on financial harm when analyzing irreparable harm, because quantifiable economic harm is precisely the kind of harm that is, by definition, not irreparable harm. And another puzzlement, why didn’t the court focus instead on the delay of several years between the beginning of Google’s conduct and the filing of the preliminary injunction, which would typically undermine the claim of irreparable harm?
Here is the decision: