Interest in a recent paper, The Hysteresis Thesis: An Empirical Study of Copyright Injunctions After eBay, by Matthew Sag (Loyola-Chi) and Pamela Samuelson (Berkeley), should extend beyond traditional IP/copyright borders. Here's why.
First, the IP/copyright implications. Prior to the Supreme Court’s landmark 2006 eBay decision, courts routinely issued injunctions in both patent and copyright cases upon a finding of actual or likely infringement of plaintiffs’ rights. Even though most scholars expected that the eBay decision would have an immediate and transformative effect on the grant of permanent injunctions in patent infringement cases, Jiari Liu's 2012 paper reported that in the first four years after the eBay ruling, courts rarely cited that decision and continued to grant injunctions at a very high rate. Sag and Samuelson's paper, however, concludes that Liu's main finding (and conventional wisdom) were "always somewhat erroneous and are now clearly outdated."
Second, the implications of the "how" and "why" of Sag and Samuelson's paper spill-over into empirical legal studies more broadly. Sag and Samuelson began their study with an eye towards "the hypothesis of hysteresis or delayed effect: the simplest way to think about this theory is that, if it is correct, we should see a greater effect in the third and fourth periods than in the 2007-2010 period immediately following eBay."
To do so, they exploited a data set of "336 reported U.S. federal court copyright injunction cases decided between January 1, 2000 and December 31, 2019. We begin with the pre-eBay era, from 2000 to 2006. Our remaining three eras are 2007-2010 (the immediate aftermath era), 2011-2014 (the Salinger-Flexible era), and 2015-2019 (the consensus era)." What they find, in part, is that: "Our evidence shows that the citation rate for eBay has increased and that the corresponding grant rate for copyright injunctions has decreased."
They attribute their findings of an Hysteresis effect to "the doctrinal conservatism of lower courts and the parochial nature of appellate court precedents, it is unsurprising that there might have been some delay in the adoption of even the most obvious implications of new Supreme Court precedents such as eBay for injunction grants in copyright cases." An excerpted abstract follows.
"... 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."
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