Featured Guest Blogger Sarah Hinchliff Pearson

While the case has major First Amendment implications, it is important to point out that the Second Circuit did not actually make its decision on constitutional grounds. Instead, the Court was applying recent Supreme Court precedent involving some fairly technical procedural law. In a unanimous opinion relating to a 2006 patent law case, the Supreme Court had already declared that courts must apply a traditional four-factor test before granting injunctive relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that damages are inadequate compensation for the injury; (3) that the balance of hardships between the two parties tips in its favor; and, (4) that the public interest would not be disserved by a permanent injunction.

In the Salinger case, the Second Circuit held these same principles apply for preliminary injunctions that are issued for alleged copyright infringement. In other words, for the presses to be halted in advance of publication (“prior restraint”), there has to be the same kind of air-tight case that one might demand for any other injunction; otherwise, let ‘em roll. To justify and injunction, the copyright holder must actually demonstrate that he or she is likely to be irreparable harmed without the injunction, and that such hardship is likely to be worse than any potential harm to the defendant if the injunction is issued. The Second Circuit explained that such balancing must take into account the important First Amendment interests of the defendant in cases like Salinger, which involve the distribution of expressive works. In other words, the Court recognized that the defendant experiences a First Amendment harm by not being able to publish his book, even if the restraint is temporary. This is the same perceived harm recognized in all cases involving prior restraints, but one that has gone largely unacknowledged in copyright cases until now.

Finally, the court must consider the public interest before granting a preliminary injunction. In its decision, the Second Circuit explained the public has a First Amendment interest in receiving information, which is furthered by encouraging and promoting free expression. This aspect of the Court’s holding is especially significant because it explicitly recognizes the potential public harm in granting preliminary injunctions in copyright cases.

Overall, the new standard will make it much more difficult for copyright owners to prevent publication of allegedly infringing works before trial. While Salinger was decided by a Circuit Court of Appeals and not the Supreme Court, the Second Circuit is a major forum for copyright cases, and it is extremely influential. Yet even with the decision to allow publication, the case still needs adjudication on the merits. Does Colting’s novel represent an unauthorized “sequel,” or should it be more appropriately be considered a “parody,” which would then clearly be granted protection under the First Amendment? Second Circuit Judge Guido Calabresi, a PJP Board Member, gave it a description more fitting for a critic than a lawyer: while deciding to reverse the injunction on the book, he nonetheless declared it “a rather dismal piece of work.”