FOR PUBLICATION
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`FLEXIBLE LIFELINE SYSTEMS, INC.,
`Plaintiff-counter-claim-defendant-
`Appellee,
`
`v.
`PRECISION LIFT, INC.; JOHN
`TOLLENAERE,
`Defendants-counter-claimants-
`Appellants.
`
`No. 10-35987
`D.C. No.
`6:10-cv-00044-
`DWM
`OPINION
`
`Appeal from the United States District Court
`for the District of Montana
`Donald W. Molloy, District Judge, Presiding
`
`Argued and Submitted
`May 5, 2011—Seattle, Washington
`
`Filed August 22, 2011
`
`Before: Mary M. Schroeder, M. Margaret McKeown, and
`Consuelo M. Callahan, Circuit Judges.
`
`Per Curiam Opinion
`
`11283
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`11286
`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`COUNSEL
`
`Robert L. Sterup, Shane P. Coleman, and Michael P. Manning
`(argued), Holland & Hart LLP, Billings, Montana, for the
`defendants-appellants.
`
`Lisa H. Meyerhoff (argued), Myall S. Hawkins, Baker &
`McKenzie LLP, Houston Texas; Jean E. Faure, Jason T.
`Holden, Faure Holden Attorneys At Law, Great Falls, Mon-
`tana, for the plaintiff-appellee.
`
`OPINION
`
`PER CURIAM:
`
`Defendants-appellants John Tollenaere and Precision Lift,
`Inc. (collectively “Precision”) appeal from the district court’s
`
`

`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`11287
`
`grant of a preliminary injunction against them in an action for
`copyright infringement by plaintiff-appellee Flexible Lifeline
`Systems, Inc. (“Flexible”). The district court found that Flexi-
`ble was likely to succeed in its infringement suit, and granted
`the injunction relying on long-standing precedent of this cir-
`cuit that presumes irreparable harm in a copyright infringe-
`ment case upon a showing of likelihood of success on the
`merits. Precision appeals, claiming that such a presumption
`runs afoul of two recent Supreme Court decisions, eBay Inc.
`v. MercExchange, L.L.C., 547 U.S. 388 (2006) and Winter v.
`Natural Resources Defense Council, Inc., 555 U.S. 7 (2008).
`We agree, and therefore vacate the injunction and remand.
`
`BACKGROUND
`
`John Tollenaere formed Precision in the 1990s to market a
`helicopter rescue lift product he had patented. In or around
`2000, Precision expanded its business to include sales of air-
`craft maintenance stands and platforms for fixed- and rotor-
`wing aircraft.1 Precision did not manufacture any of its own
`stands or platforms. Rather, Precision sold stands or platforms
`manufactured by others, even though it claims that it also had
`the ability to independently design aircraft maintenance
`stands. In early 2001, Precision again sought to increase its
`business and became the sole distributor for aircraft mainte-
`nance stands designed and manufactured by West Coast Weld
`Tech, Inc. (“West Coast”).
`
`West Coast allowed Precision to use the technical drawings
`of the stands manufactured by West Coast in order for Preci-
`
`1Maintenance stands and platforms are used by aircraft maintenance
`personnel to stand on when working on aircraft. They provide greater sta-
`bility and an easier base from which to work than a ladder. Due to the var-
`ied size and shape of different aircraft, maintenance stands come in a
`variety of sizes, shapes, and configurations. In addition, while there are
`generic stands available, stands and platforms are sometimes specifically
`designed to fit a particular aircraft. This dispute involves stands and plat-
`forms specifically designed for a particular aircraft.
`
`

`
`11288
`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`sion to market the stands, but West Coast always claimed
`ownership of the drawings.2 All of the drawings at issue were
`stamped by West Coast as its confidential and proprietary
`information. West Coast never transferred or sold ownership
`of the drawings, or any of its intellectual property, to Preci-
`sion. Precision never challenged West Coast’s ownership or
`otherwise indicated that Precision believed it had any owner-
`ship interest in the drawings. In fact, in addition to the “confi-
`dential and proprietary information” stamp West Coast used
`on all of its drawings, at one point Precision requested that
`West Coast add a watermark across the face of the drawings
`that said, “Property of West Coast Weld Tech” to more
`clearly identify the drawings as West Coast’s property.
`
`In July of 2008, Precision and West Coast entered into a
`joint venture to compete for a United States Air Force con-
`tract to manufacture and sell maintenance stands for C-130
`Hercules aircraft. Under this arrangement, West Coast was
`responsible for designing and manufacturing the stands, and
`Precision was responsible for submitting the bid to the gov-
`ernment and handling the bid process. Rather than a single
`maintenance stand, the government requested bids for a wrap-
`around maintenance platform comprised of several stands for
`use during extensive aircraft inspections.
`
`West Coast included provisions to protect its ownership of
`intellectual property in the Joint Venture Agreement (“JVA”).
`First, the JVA expressly provides that each party acknowl-
`edges the need to disclose its confidential and proprietary
`information to the other for the purposes of the venture. Sec-
`ond, the JVA contains an agreement that each party will not
`disclose the confidential and proprietary information of the
`other party to anyone else, except to the government, and
`even then only as necessary to complete their duties in per-
`
`2As will be shown, Flexible is the plaintiff here because West Coast
`sold its assets, including the rights to the drawings at issue, to Flexible in
`2009.
`
`

`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`11289
`
`forming the venture. Third, the JVA expressly requires each
`party to promptly return the other party’s confidential and
`proprietary information upon termination of the venture or at
`the request of the other party.
`
`The parties dispute Precision’s role in the actual design of
`the maintenance platforms and the creation of the drawings.
`Precision contends it assisted in the design of custom, wrap-
`around stands, and claims that it owns, or at least co-owns, the
`drawings as a result of its part in their creation. Primarily,
`Precision claims that its employees assisted in the design pro-
`cess (and thus presumably had a role in creation of the design
`drawings) by going to on-site visits with West Coast engi-
`neers and employees to understand the customer’s require-
`ments.
`
`Flexible disagrees, countering that Precision did not con-
`tribute to the design and could not have done so because it
`employed no engineers and did not have manufacturing or
`design capabilities. West Coast, on the other hand, employed
`an engineer and two draftsmen, and Flexible contends that
`West Coast alone designed the maintenance stands and cre-
`ated the drawings at issue here. Moreover, the JVA specified
`that West Coast was responsible for all engineering, technical
`design work, and manufacturing, while Precision was respon-
`sible for completing the bid proposal and dealing with the
`government during the bid process.
`
`In July 2008, Precision submitted the initial proposal for
`the Air Force C-130 platform, which, as required, included
`the initial drawings. These drawings had to be submitted for
`evaluation and revisions prior to submitting the final bid.
`Thereafter, Precision communicated with the Air Force
`regarding the proposal and West Coast continued its design
`work on the stands, which included making revisions to the
`design and technical drawings.
`
`In 2009, West Coast encountered significant financial prob-
`lems. Unable to continue operating on its own, West Coast
`
`

`
`11290
`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`sold the majority of its assets, including much of its intellec-
`tual property, to Flexible. In particular, the purchase agree-
`ment specified that “ALL drawings, details, production
`schedules, etc. for design, construction and installation of
`maintenance platforms for aircraft and land vehicles” were
`included in the purchase. After the purchase, Flexible contin-
`ued what had been West Coast’s work on the final C-130
`drawings and forwarded them to the Air Force in December
`2009. Meanwhile, Precision asked Flexible to discuss formal-
`izing their continuing business relationship in light of Flexi-
`ble’s purchase of West Coast’s assets.
`
`On January 27, 2010, Flexible responded to Precision’s
`requests to formalize their business relationship by advising
`Precision that Flexible was not interested in continuing a joint
`venture. Flexible presented Precision with alternate proposals,
`including one by which Precision would become a sales agent
`for Flexible’s products. Rather than proceed with either of
`Flexible’s proposals, Precision found another joint venture
`partner to take West Coast’s place in the C-130 maintenance
`stand bid proposal. Precision joined with Carbis, one of Flexi-
`ble’s competitors, and submitted a final bid for the project
`totaling over $61 million. Flexible did not submit a bid of its
`own for the proposal. The Air Force eventually awarded the
`contract to another competitor at a contract price approxi-
`mately $9.5 million higher than Precision’s bid, likely due to
`the dispute between Precision and Flexible as to the owner-
`ship of the drawings. Precision protested the award, but the
`Air Force ultimately denied the protest.
`
`In the meantime, Flexible filed applications to register the
`drawings it had purchased from West Coast, and the Copy-
`right Office granted the registrations effective June 23, 2010.
`Flexible then filed its complaint and an application for injunc-
`tive relief to enjoin Precision from using Flexible’s intellec-
`tual property on the C-130 bid. The district court denied the
`motion for a temporary restraining order, but set a hearing on
`the preliminary injunction. Prior to the hearing, Flexible filed
`
`

`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`11291
`
`an amended application for injunctive relief, expanding the
`scope of the relief sought to include enjoining Precision from
`using any of the drawings for maintenance stands for aircraft
`other than the C-130. In both its application and supplemental
`application, Flexible argued only that it was entitled to a pre-
`sumption of irreparable harm and did not offer any evidence
`of actual harm that it was likely to suffer in the absence of an
`injunction. The district court held a hearing on the preliminary
`injunction application on October 14 and 19, 2010. Following
`the hearing, the court granted the injunction except as to the
`use of the drawings for the C-130 bid.
`
`The district court issued findings of fact and conclusions of
`law in granting Flexible’s injunction application. It found that
`the C-130 drawings at issue were created by West Coast
`employees, and that West Coast gave Precision the drawings
`to use for the C-130 contract proposal. The court also found
`that: (1) the joint venture agreement required Precision to
`return all of West Coast’s proprietary information upon the
`termination of the agreement; (2) Flexible was likely to show
`that Precision reproduced and used Flexible’s drawings with-
`out permission or license; and (3) Precision had distributed
`copies of Flexible’s drawings without permission or license.
`However, the court noted that Flexible “elicited no proof sug-
`gesting that it entered competing bids with contracts that Pre-
`cision Lift, Inc. procured through the use of Flexible Lifeline
`Systems, Inc.’s platform drawings.” On the other hand, it
`observed that “[i]f a preliminary injunction is issued, Preci-
`sion Lift, Inc. may lose existing or potential contracts.”
`
`The district court’s conclusions of law included the follow-
`ing: (1) Flexible is likely to prove its drawings are copyright-
`able; (2) West Coast was the sole author and creator of the
`drawings; (3) Flexible had valid copyrights in the drawings;
`and (4) Flexible was likely to succeed on the merits of its
`copyright infringement claim. The district court did not make
`a finding on whether Flexible would be irreparably harmed
`absent an injunction, but concluded that “[b]ecause Flexible
`
`

`
`11292
`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`Lifeline Systems, Inc. has shown a likelihood of success on
`the merits, Flexible Lifeline Systems, Inc. is presumed to be
`irreparably harmed.” The district court did not analyze the
`issue of irreparable harm, but based on our precedent con-
`cluded “[w]hen a plaintiff is likely to succeed on the merits
`of a copyright infringement claim, irreparable harm is pre-
`sumed. Elvis Presley Enterprises, Inc. v. Passport Video, 349
`F.3d 622, 627 (9th Cir. 2003).”
`
`The court also found a “public . . . interest in the efficient
`and economical performance of contracts,” but because of the
`additional money the government would have to pay on the
`C-130 contract, the public interest would not be served by
`preventing Precision from using the drawings for that con-
`tract. The court concluded that Flexible was entitled to a pre-
`liminary injunction against Precision for the immediate return
`of all intellectual property Precision had received from West
`Coast, which was now owned by Flexible, and prohibited Pre-
`cision from using such intellectual property other than in con-
`nection with the bid proposal on the Air Force C-130 contract.
`Precision timely appealed the issuance of the preliminary
`injunction. We have jurisdiction pursuant to 28 U.S.C.
`§ 1292(a)(1).
`
`DISCUSSION
`
`I. STANDARD OF REVIEW
`
`A district court’s decision regarding preliminary injunctive
`relief is subject to limited review. Harris v. Bd. of Supervi-
`sors, L.A. Cnty,, 366 F.3d 754, 760 (9th Cir. 2004) (review
`“limited and deferential”) (internal quotation marks omitted);
`Sw. Voter Registration Educ. Pro. v. Shelley, 344 F.3d 914,
`918 (9th Cir. 2003) (en banc) (same). We will reverse only if
`the district court has abused its discretion. Alliance for the
`Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
`“The district court, however, ‘necessarily abuses its discretion
`when it bases its decision on an erroneous legal standard or
`
`

`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`11293
`
`on clearly erroneous findings of fact.’ ” Earth Island Inst. v.
`United States Forest Serv., 351 F.3d 1291, 1298 (9th Cir.
`2003) (quoting Rucker v. Davis, 237 F.3d 1113, 1118 (9th
`Cir. 2001) (en banc)). If “the district court is alleged to have
`relied on an erroneous legal premise, we review the underly-
`ing issues of law de novo.” Id.
`
`II. STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF
`
`The Copyright Act provides that a court “may . . . grant
`temporary and final injunctions on such terms as it may deem
`reasonable to prevent or restrain infringement of a copyright.”
`17 U.S.C. § 502(a). Thus, injunctive relief to prevent copy-
`right infringement is available as an equitable remedy in the
`court’s discretion. In order to obtain preliminary injunctive
`relief, a plaintiff “must establish that he is likely to succeed
`on the merits, that he is likely to suffer irreparable harm in the
`absence of preliminary relief, that the balance of equities tips
`in his favor, and that an injunction is in the public interest.”
`Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
`571 F.3d 873, 877 (9th Cir. 2009) (quoting Winter, 555 U.S.
`7, 129 S. Ct. 365, 374 (2008)). This is commonly referred to
`as the “four-factor test.” See, e.g., Sierra Forest Legacy v.
`Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). Although Precision
`also argues that the district court erred in finding Flexible
`demonstrated a likelihood of success on the merits, the pri-
`mary issue in this appeal is whether the district court used an
`erroneous legal standard by presuming irreparable harm in
`issuing injunctive relief.
`
`A. Presumption of Irreparable Harm
`
`[1] We have long held that irreparable harm can be pre-
`sumed in a copyright infringement case upon a showing of a
`likelihood of success on the merits by the copyright owner.
`Apple Computer, Inc. v. Formula Intern. Inc., 725 F.2d 521,
`525 (9th Cir. 1984); see also Triad Sys. Corp. v. Se. Exp. Co.,
`64 F.3d 1330, 1335 (9th Cir. 1995) (noting the general
`
`

`
`11294
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`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`requirement of showing irreparable harm, but stating “[i]n a
`copyright infringement action, however, the rules are some-
`what different. A showing of a reasonable likelihood of suc-
`cess on the merits raises a presumption of irreparable harm.”).3
`
`[2] Based on our precedent, the district court granted the
`preliminary injunction after finding a likelihood of success on
`the merits, without inquiring into whether Flexible would
`actually suffer any irreparable harm absent relief. Instead, the
`district court relied solely on the presumption of irreparable
`harm, citing our 2003 decision Elvis Presley, 349 F.3d 622.
`Precision objects, arguing that this circuit’s standard, as
`expressed in Elvis Presley and relied upon by the district
`court, has been effectively overruled by the Supreme Court.
`According to Precision, after the Supreme Court’s eBay and
`Winter decisions in 2006 and 2008, this circuit’s long-
`standing practice of presuming irreparable harm upon the
`showing of likelihood of success on the merits in a copyright
`infringement case is no longer good law. Precision is correct.
`As we prophetically proclaimed in Elvis Presley that “[t]he
`King is dead,”4 349 F.3d at 624, referring to Elvis Presley the
`man, today we proclaim that the “King” is dead, referring to
`Elvis Presley the case — to the extent it supported the use of
`a presumption of irreparable harm in issuing injunctive relief.
`
`3We were not alone in presuming harm. Indeed, nearly thirty years ago
`the prevailing view among the circuits was that “[a] copyright plaintiff
`who [made] out a prima facie case of infringement [was] entitled to a pre-
`liminary injunction without a detailed showing of irreparable harm.” Apple
`Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3d Cir.
`1983) (citing 3 Nimmer on Copyright § 14.06[A], at 14-50, 14-51 & n.16
`(collecting authorities)).
`4See Elvis Presley, Wikipedia, http://en.wikipedia.org/wiki/Elvis_
`Presley (last visited June 1, 2011) (explaining that Elvis Presley is “[a]
`cultural icon, [ ] widely known by the single name Elvis [and] is often
`referred to as the ‘King of Rock and Roll’ or simply ‘the King’ ”).
`
`

`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`11295
`
`1.
`
` eBay Inc. v. MercExchange, L.L.C.
`
`In eBay, the Supreme Court reviewed a request for a per-
`manent injunction after a jury found eBay had infringed
`MercExchange’s patent. The district court refused to issue an
`injunction notwithstanding the infringement, finding “that a
`‘plaintiff ’s willingness to license its patents’ and its ‘lack of
`commercial activity in practicing the patents’ would be suffi-
`cient to establish that the patent holder would not suffer irrep-
`arable harm.” eBay, 547 U.S. at 393 (quoting MercExchange,
`L.L.C. v. eBay, Inc., 275 F. Supp. 2d 695, 712 (E.D. Va.
`2003)). The Federal Circuit reversed the district court, “apply-
`ing its ‘general rule that courts will issue permanent injunc-
`tions against patent
`infringement absent exceptional
`circumstances.’ ” Id. at 391 (quoting MercExchange, L.L.C. v.
`eBay, Inc., 401 F.3d 1323, 1339 (Fed. Cir. 2005)).
`
`[3] The Supreme Court stated that the district court’s “cat-
`egorical rule” regarding irreparable harm “cannot be squared
`with the principles of equity adopted by Congress.” eBay, 547
`U.S. at 393. However, by applying a “general rule,” the Fed-
`eral Circuit had “departed in the opposite direction [as the dis-
`trict court] from the four-factor test.” Id. The Court explained
`that “[j]ust as the district court erred in its categorical denial
`of injunctive relief, the Court of Appeals erred in its categori-
`cal grant of such relief.” Id. at 394. The Court was very clear
`that even where infringement had been proven, a plaintiff may
`not be granted injunctive relief until he satisfies the four-
`factor test, which includes demonstrating irreparable injury.
`Id. (holding that because “neither court below correctly
`applied the traditional four-factor framework that governs the
`award of injunctive relief, we vacate the judgement of the
`Court of Appeals, so that the District Court may apply that
`framework in the first instance.”)
`
`[4] Flexible tries to distinguish eBay on the grounds that
`eBay involved patent infringement, not copyright infringe-
`ment, and argues that the presumption remains valid for a
`
`

`
`11296
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`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`copyright infringement case. However, the Court’s reasoning
`in eBay cannot be so narrowly read. The Court based its con-
`clusions on principles of equity, citing the Patent Act’s autho-
`rization to grant an injunction “in accordance with the
`principles of equity.” Id. at 392. The Court made clear that
`these principles apply equally to copyright infringement by
`discussing the Copyright Act and drawing parallels between
`patent and copyright protection throughout its analysis. It
`explained that its “approach is consistent with our treatment
`of injunctions under the Copyright Act,” id., and noted that
`“[l]ike the Patent Act, the Copyright Act provides that courts
`‘may’ grant injunctive relief ‘on such terms as it may deem
`reasonable to prevent or restrain infringement of a copy-
`right,’ ” id. (quoting 17 U.S.C. § 502(a)). The Court empha-
`sized that it “has consistently rejected invitations to replace
`traditional equitable considerations with a rule that an injunc-
`tion automatically follows a determination that a copyright
`has been infringed,” and based on its experience in copyright
`cases, similarly rejected the invitation to adopt a categorical
`rule in patent infringement cases. Id. at 392-93. Thus, under
`eBay, a presumption of irreparable harm is equally improper
`in a case based on copyright infringement as it is in a case
`based on patent infringement.
`
`[5] Nor does the fact that eBay concerned a permanent
`injunction rather than a preliminary injunction sufficiently
`distinguish the cases to result in a different outcome. The
`Supreme Court has been more than clear on this point:
`
`Finally, the Ninth Circuit distinguished [Weinberger
`v. Romero-Barcelo, 456 U.S. 305 (1982)] on the
`ground that the District Court in that case refused to
`issue a permanent injunction after a trial on the mer-
`its whereas in this case the District Court denied pre-
`liminary injunctive relief. We fail to grasp the
`significance of this distinction. The standard for a
`preliminary injunction is essentially the same as for
`a permanent injunction with the exception that the
`
`

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`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`11297
`
`plaintiff must show a likelihood of success on the
`merits rather than actual success.
`
`Amoco Prod. Co. v. Gambell, 480 U.S. 531, 546 n.12 (1987).
`Indeed, the eBay Court relied on a preliminary injunction case
`in reaching its holding. 547 U.S. at 391 (citing Amoco, 480
`U.S. at 542)). Thus, we conclude that eBay applies with equal
`force to preliminary injunction cases as it does to permanent
`injunction cases.
`
`2. Winter v. Natural Resources Defense Council, Inc.
`
`If we harbored any doubts about the applicability of eBay
`in the preliminary injunction context, they have been dis-
`pelled by the Supreme Court’s decision in Winter. In Winter,
`the Supreme Court reaffirmed the equitable nature of the four-
`factor framework and applied it to a case involving a prelimi-
`nary injunction. The district court had issued an injunction
`restricting the U.S. Navy’s ability to conduct war readiness
`exercises off the coast of Southern California, and the Ninth
`Circuit affirmed. Natural Res. Def. Council, Inc. v. Winter,
`518 F.3d 658, 697 (9th Cir. 2008). We held that the district
`court need only find a possibility of irreparable harm to issue
`an injunction and rejected the Navy’s argument that any claim
`of irreparable injury was merely speculative. Id.
`
`[6] The Supreme Court reversed, holding that “the Ninth
`Circuit’s ‘possibility’ standard is too lenient.” Winter, 555
`U.S. at 22. The Court explained that its “frequently reiterated
`standard requires plaintiffs seeking preliminary relief to dem-
`onstrate that irreparable injury is likely in the absence of an
`injunction.” Id. (emphasis original). The Court clarified that
`“[i]ssuing a preliminary injunction based only on a possibility
`of irreparable harm is inconsistent with our characterization of
`injunctive relief as an extraordinary remedy that may only be
`awarded upon a clear showing that the plaintiff is entitled to
`such relief.” Id. Thus, Winter reaffirms the principles relied
`upon in eBay: a plaintiff must satisfy the four-factor test in
`
`

`
`11298
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`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`order to obtain equitable injunctive relief, even if that relief
`is preliminary. The Court cautioned that
`
`[a] preliminary injunction is an extraordinary remedy
`never awarded as of right. In each case, courts must
`balance the competing claims of injury and must
`consider the effect on each party of the granting or
`withholding of the requested relief. In exercising
`their sound discretion, courts of equity should pay
`particular regard for the public consequences in
`employing the extraordinary remedy of injunction.
`
`Id. at 24 (quotation marks and citations omitted) (emphasis
`added). If our past standard, which required a plaintiff to dem-
`onstrate at least a possibility of irreparable harm, is “too
`lenient,” then surely a standard which presumes irreparable
`harm without requiring any showing at all is also “too
`lenient.”
`
`B. The Ninth Circuit After eBay and Winter
`
`[7] Flexible contends that the presumption of irreparable
`harm in a copyright infringement preliminary injunction case
`survives the Supreme Court’s opinions in eBay and Winter.
`Flexible’s primary argument for the continued viability of the
`presumption is that this Circuit reaffirmed the presumption of
`irreparable harm in Marlyn, in which we reviewed a prelimi-
`nary injunction issued in an analogous trademark infringe-
`ment case. There we quoted the proper four-factor test in
`Winter and affirmed after stating “[t]he district court properly
`considered each of these factors.” Marlyn, 571 F.3d at 877.
`The district court there, like the district court here, rested on
`a presumption of irreparable harm rather than finding that
`such harm was likely. Id. Flexible contends that our affirma-
`tion of the district court in Marlyn is an affirmation of the
`continuing vitality of the presumption of irreparable harm in
`intellectual property infringement cases.
`
`

`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`11299
`[8] We do not agree. Marlyn contains no analysis concern-
`ing the use of the presumption of irreparable harm post-
`Winter. In fact, there is no indication that the parties briefed
`the issue of whether our long-standing presumption of harm
`survived after eBay or Winter. The entire discussion of irrepa-
`rable harm in Marlyn reads:
`
`In evaluating irreparable harm, the court cited Ninth
`Circuit law holding that “[i]n a trademark infringe-
`ment claim, ‘irreparable injury may be presumed
`from a showing of likelihood of success on the mer-
`its.’ ” El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032,
`1038 (9th Cir. 2003) (quoting GoTo.com, Inc. v.
`Walt Disney Co., 202 F.3d 1199, 1205 n.4 (9th Cir.
`2000)). Because the court found a likelihood of suc-
`cess on the merits, it reasonably presumed irrepara-
`ble injury.
`
`Id. The panel’s summary treatment of the presumption with-
`out consideration of the effect of eBay and Winter does not
`bind this panel or constitute an affirmation of the presump-
`tion’s continued vitality. “[S]tatements made in passing, with-
`out analysis, are not binding precedent.” Thacker v. FCC (In
`re Magnacom Wireless, LLC), 503 F.3d 984, 993-94 (9th Cir.
`2007).
`
`[9] Flexible also cites Alliance for the Wild Rockies v. Cot-
`trell, 632 F.3d 1127 (9th Cir. 2011) as supporting the contin-
`ued use of the presumption of irreparable harm in an
`environmental case once a likelihood of success on the merits
`is demonstrated. Alliance for the Wild Rockies does not so
`hold. To the contrary, we stated that although the Supreme
`Court has noted “ ‘[e]nvironmental injury, by its nature, can
`seldom be adequately remedied by money damages and is
`often permanent or at least of long duration, i.e., irrepara-
`ble[,]’ . . . this does not mean that ‘any potential environmen-
`tal injury’ warrants an injunction.” Id. at 1135 (quoting The
`Lands Council v. McNair, 537 F.3d 981, 1004 (9th Cir. 2008)
`
`

`
`11300
`
`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`(en banc)). Nonetheless, we found that “actual and irreparable
`injury, such as [Alliance] articulates here, satisfies the ‘likeli-
`hood of irreparable injury’ requirement articulated in Winter.”
`Id. Thus, we appreciated the key distinction that although
`some injuries may usually be irreparable and thus a likelihood
`of irreparable injury easily shown, the plaintiff must still
`make that showing on the facts of his case and cannot rely on
`a presumption to do it for him.
`
`[10] Another panel of this circuit very recently addressed
`an argument nearly identical to the one Flexible is now mak-
`ing. See Perfect 10, Inc. v. Google, Inc., ___ F.3d ___, 2011
`WL 3320297 (9th Cir. Aug. 3, 2011). Perfect 10 argued that
`the district court erred in finding it had not demonstrated
`irreparable harm because, having shown a likelihood of suc-
`cess on the merits of its copyright infringement case, it was
`entitled to a presumption of irreparable harm. Id. at *2. The
`panel in Perfect 10 rejected the argument, concluding, as we
`do, that such a presumption does not survive eBay and Winter.
`Id. at *4. The minor differences between this case and Perfect
`10 — here the district court relied on the presumption of harm
`while in Perfect 10 the court found that Perfect 10 failed to
`establish irreparable harm and the panel subsequently refused
`to rely on the presumption — are not enough to compel dif-
`ferent results.
`
`C. Presuming Irreparable Harm Is Now
`Impermissible
`
`We conclude that presuming irreparable harm in a copy-
`right infringement case is inconsistent with, and disapproved
`by, the Supreme Court’s opinions in eBay and Winter. Id. at
`*4. Thus, our long-standing precedent finding a plaintiff enti-
`tled to a presumption of irreparable harm on a showing of
`likelihood of success on the merits in a copyright infringe-
`ment case, as stated in Elvis Presley and relied on by the dis-
`trict court, has been effectively overruled. In other words,
`
`

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`FLEXIBLE LIFELINE SYSTEMS v. PRECISION LIFT
`
`11301
`
`“Elvis has left the building.”5 Accordingly, we hold that even
`in a copyright infringement case, the plaintiff must demon-
`strate a likelihood of irreparable harm as a prerequisite for
`injunctive relief, whether preliminary or permanent.
`
`D. Other Circuits and Authorities Agree
`
`[11] Our sister circuits agree with our holding. The Second
`Circuit faced exactly the same question just a year ago, and
`came to the same answer we do today. See Salinger v. Colt-
`ing, 607 F.3d 68 (2d Cir. 2010). The Second Circuit, like the
`Ninth, had a long-standing history of presuming irreparable
`harm upon the showing of a likelihood of success on the mer-
`its in a copyright infringement case. In Salinger, the district
`court issued an injunction based on Second Circuit precedent
`establishing a presumption of irreparable harm after finding
`the requisite likelihood of success on the merits. Id. at 74.
`
`The Second Circuit reversed, holding that after eBay and
`Winter such a presumption was no longer permitted. Id. at 77.
`Salinger undertook a detailed examination of both eBay and
`Winter, and their applicability to preliminary injunctions in
`copyright infringement actions, and concluded “nothing in the
`text or the logic of eBay suggests that its rule is limited to
`patent cases. On the contrary, eBay strongly indicates that the
`
`5See Cecil Adams, The Straight Dope
`(Dec. 27, 2002),
`http://www.straightdope.com/columns/read/2430/elvis-has-left-the-
`building-who-said-it-first, which explains that the quote has become “a
`catchphrase whose meaning, usually tinged with irony, is clear to all: the
`show’s over, the curtain has fallen, the sun has set, that’s all she wrote,
`the fat lady has sung, our work here is done, move along, nothing more
`to see, disperse, beat it, turn the page, hit the road, don’t forget to tip your
`waitress, pack it up, turn out the lights, das ist alles, time’s up, toodle-oo,
`exeunt omnes, class dismissed, back to work, don’t let the screen door hit
`you where the good Lord split you, end of story, that’s all there is there
`ain’t no more, so long, hasta la vista, you don’t have to go home but you
`can’t stay here, later gator, 30, buh-bye, get lost, ite missa est, the end,
`finito, Scotty, beam me up.” The same can be aptly said of the fate of the
`presumption of irreparable