Here is a case that you might find of interest, because it talks about the standard of preliminary injunctions, what you need to prove to get one, specifically in the 9th Circuit. It's of interest to me on three levels: First, it shows that you don't need to prove irreparable harm in copyright infringement cases, so it's not going to work to say that damages are financial only and thus a bar to a preliminary injunction. Rather, in that circuit, a preliminary injunction must issue if a plaintiff establishes a likelihood of success on the merits in copyright infringement cases, with some exceptions, if the validity of the copyright and the existence of copying are not at issue.
Second, AutoZone seems to qualify for all of those exceptions, and SCO has its work cut out for it to establish a likelihood of success on the merits. Novell's challenge to its copyrights, just for starters, seems to block their path.
Third, I think it explains why the judge cut AZ's attorney off. I'm not saying he should have. Just that I get an insight into the why of it.
I've marked in red the sections that seem obviously useful to AutoZone or important in other ways, and in fact, after reading the case, I'd have to say that unless I find something else later that contradicts this case, AZ seems to be sitting in a very fine position, even without being able to use the usual irreparable harm from money damages-only argument. SCO's burden is that it must prove that it owns the copyrights and that there is no dispute about it. I wish them the best in trying to meet that burden.
Something to remember when reading cases is that you have to look not just at the ruling but at the facts of the case. Do they match your situation? If not, not everything is going to apply to you. You'll see the judge making those distinctions in the Opinion.
The Cadence case was a flat-out copyright infringement case, no doubt about it, and there were even criminal charges filed, after an FBI raid. Some Cadence employees left and then used code from Cadence to build their own business in competition. That was the charge. The lower court ruled that they were guilty of copyright infringement but failed to order a preliminary injunction to satisfy Cadence, who appealed and won the point on appeal, the point being that the standard in copyright cases in that circuit is that harm is presumed if copyright infringement is established and that being able to be made whole later isn't enough to block a preliminary injunction.
Eek, you say. So SCO gets an automatic PI, based on this ruling. Please read it more carefully and note all the ways you can block a PI, even in copyright infringement cases, including de minimis damage to the plaintiff, AZ acting with innocent intent, balance of hardships, the copyrights being in dispute, undue delay, and SCO's need to demonstrate a likelihood of success on the merits, all of which tilt, in my opinion, in AutoZone's favor. If ever there was a de minimis case, this would seem, from the facts known to date, to be it.
There is also the issue that SCO will have to put up some money, a lot of it, if the court is to block AZ's use of the software, to make them whole at the end if they ultimately prevail. I am not quite sure they will have it to give the court, despite their press release today that customers are flocking to them. I assumed that was why they didn't apply for a preliminary injunction in the first place. That and the pesky business of having to prove a likelihood of success on the merits. So, they'll do discovery, see if they can dig up any dirt about IBM or Red Hat, and then they can always back off from any preliminary injunction, claiming they found out in discovery they don't qualify. Or I suppose they could apply for one in a way designed to lose on strictly technical grounds. I'll be surprised if they do apply for a prelim, especially after reading this case, though.
To show you how different the facts of the two cases are, here is the Harvard Business Online's description of their paper about the case, that they sell if you are interested:
"Chronicles the origins and evolution of a landmark intellectual property dispute between Cadence Design Systems and Avant! Corp. . . .
In 1994, Gerald Hsu, a senior Cadence executive, resigned and joined Avant! as its new CEO. This move started a series of legal disputes between the companies revolving around trade secret protection. Shortly after Hsu's departure, Avant! continued to hire many Cadence employees, including a number of critical programmers. In addition, there was evidence that some of these people stole some of Cadence's most valuable source code. Cadence began legal actions, including criminal charges, against Avant! and some of its employees for violation of trade secret laws. Chronicles the highlights of the legal battle, the marketplace battle between the firms, and the public relations struggle. "
So it's a famous case. But AutoZone isn't accused of anything like that. Avant! was selling software including the infringing code (and there was a trade secret misappropriation claim too). AutoZone is using Linux internally, from all that has been made known. They sell auto parts, not software. So the harm is exactly what? If you are interested in more details or wish to know what happened ultimately, here are some links for you:
If you look them all up, you'll likely agree that this case doesn't match the facts of the AutoZone case at all, and that the judge in AutoZone isn't going to view AutoZone's behavior in an identical light to Avant!'s.
If an attorney-boss asked me to tell him what I think, after reading the case, I'd tell him is that it's distinguishable in multiple ways, and that the presumption of irreparable harm in copyright infringement cases is rebuttable, in many ways that seem applicable to AZ, so I don't see it as an automatic grant of a prelim for SCO, just because of that money damages issue, and in fact, I see it that the prongs SCO has to meet are almost certainly impossible for it to fulfill. For one glaring thing, the copyright *is* in dispute, so assuming that that matter isn't settled in SCO's favor prior to their application for a prelim, I can't see how they can possibly get one.
That's my view. I'm just a paralegal, not a lawyer, of course. But that is what I'd tell my boss.
U.S. 9th Circuit Court of Appeals
CADENCE DESIGN SYSTEMS, INC.,
GERALD HSU, an
individual; MITSURU IGUSA, an individual;
and CHIH-LIANG CHENG,
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted
August 12, 1997--San Francisco, California
Filed September 23, 1997
Before: Alfred T. Goodwin and Sidney R. Thomas,
Circuit Judges, Dean D. Pregerson,* District Judge.
Opinion by Judge Dean Pregerson
Jeffrey R. Chanin, Ragesh K. Tangri, Keker & Van Nest, San
Francisco, California, for the plaintiff-appellant.
George A. Riley, O'Melveny & Myers, San Francisco, Cali-
fornia, for defendant-appellee Avant! Corporation.
D. PREGERSON, District Judge:
Cadence Design Systems, Inc. ("Cadence") brought suit
against Avant! Corporation ("Avant!") (pronounced Ah VAN
tee) for copyright infringement and misappropriation of trade
secrets. Cadence appealed the district court's partial denial of
its motion for preliminary injunction. Cadence asserts that the
district court erred (1) by failing to enjoin Avant! from using
copyrighted computer code after the district court found that
Cadence was likely to succeed on the merits of its copyright
claim and (2) by failing to enjoin Avant! from selling modified software products created to replace the infringing software products. For the following reasons, we reverse the
district court's decision and remand.
Cadence and Avant! compete in the field of "place and
route" software.1 On December 6, 1995, Cadence sued Avant!
for theft of its copyrighted and trade secret computer source
code2 and notified Avant! and the district court that it intended
to file a motion for preliminary injunction.3 Cadence asserts
that Avant! incorporated wholesale portions of Cadence's
copyrighted source code in Avant!'s ArcCell and ArcCell XO
software products ("ArcCell products" or "ArcCell software"). The copied portions of Cadence's code allegedly
came into Avant!'s possession by way of several employees
who left Cadence to work for Avant!. Cadence also asserts
that Avant! paid Cadence employees to provide valuable
information about Cadence's software products.
After Cadence filed this action, Avant! undertook a "clean
room" process where it attempted to remove the allegedly
infringing portions of code. Avant! hired an independent
expert to examine the portions of infringing source code identified by Cadence. The expert then created specifications
based on the Cadence code from which Avant! could write
original code to take the place of the infringing code. Finally,
Avant!'s engineers, allegedly operating without access to the
Cadence code (hence the term "clean room"), created new
code to replace the copied code. Avant!'s modified software
is called Aquarius.
Due to the highly technical issues involved in the case, several months passed before the district court, with the aid of an
independent expert, granted in part and denied in part
Cadence's motion for preliminary injunction. The district
court made the following findings: (1) that Cadence had
established that its source code was protected by copyright
and by trade secret law; (2) that Avant! used some of
Cadence's code in its ArcCell products, thereby infringing
Cadence's copyright; and (3) that Cadence will likely prevail
on its claim that Avant!'s clean room procedures were inadequate.
The district court enjoined Avant! from using certain
source code, in part because Avant! no longer used the code
in its software and thus an injunction would not harm Avant!.
The district court declined to enjoin the use of other source
code because Cadence failed to make a sufficient showing of
success on the merits. Finally, the court declined to enjoin
Avant!'s use of Cadence's source code in Avant!'s ArcCell
and Aquarius products. The court declined to enjoin the sale
of the ArcCell and Aquarius products because it found that
the balance of harm tilted in favor of Avant! and that money
damages were an adequate remedy for any harm to Cadence.
Cadence argues on appeal that the district court abused its
discretion by failing to enjoin the ArcCell and Aquarius products. Cadence asserts that the district court was obligated to
enjoin the sale of the products once the court determined that
Cadence was likely to succeed on the merits of its copyright
I. Standard of Review.
A plaintiff seeking preliminary injunctive relief must demonstrate "either a likelihood of success on the merits and the
possibility of irreparable injury[ ] or that serious questions
going to the merits were raised and the balance of hardships
tips sharply in its favor." Sega Enterprises Ltd. v. Accolade,
Inc., 977 F.2d 1510, 1517 (9th Cir. 1992).
A district court's preliminary injunction order will be
reversed only if the district court abused its discretion or
based its decision on an erroneous legal standard or on clearly
erroneous findings of fact. See Triad Sys. Corp. v. Southeastern Express Co., 64 F.3d 1330, 1334 (9th Cir. 1995); Sega,
977 F.2d at 1517.
II. The District Court Erred by Failing to Enjoin Sale of
Avant!'s ArcCell and ArcCell XO Products.
A. The District Court Erred by Finding that Avant! Had
Rebutted the Presumption of Irreparable Injury.
 The district court recognized that a presumption of
irreparable injury arises if the plaintiff is able to show a likelihood of success on the merits of its copyright infringement
claim. The district court erred, however, by finding that
Avant! had rebutted the presumption of irreparable injury.
1. A copyright infringement defendant cannot rebut the
presumption of irreparable harm by showing that
money damages are adequate.
Cadence asserts that the district court erred because "it is
well settled that the availability of money damages does not
rebut the presumption of irreparable harm in copyright cases."
Cadence cites several appeals court decisions for support,
including: Triad, 64 F.3d at 1335 (holding that the presumption of irreparable harm supported the district court's preliminary injunction order); Johnson Controls, Inc. v. Phoenix
Control Sys., Inc., 886 F.2d 1173, 1174 (9th Cir. 1989)
(same); Apple Computer, Inc. v. Franklin Computer Corp.,
714 F.2d 1240, 1254 (3d Cir. 1983) (holding that the district
court erred when it failed to consider the presumption of
irreparable harm); and Atari, Inc. v. North Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 620-21 (7th Cir. 1982)
(reversing the district court's finding of non-infringement and
directing the district court to enter a preliminary injunction
based upon the presumption of irreparable harm).
 None of the decisions cited by Cadence directly hold
that a defendant cannot rebut the presumption of irreparable
harm by showing the adequacy of money damages. In Triad
and Johnson Controls, for example, we addressed cases where
the presumption supported the district court's grant of a preliminary injunction. However, implicit in our prior decisions,
as well as those of other federal courts of appeals, is the rule
that a defendant cannot, by asserting the adequacy of money
damages, rebut the presumption of irreparable harm 4 that
flows from a showing of likelihood of success on the merits
of a copyright infringement claim.5
In Triad, the defendant argued that any damages that the
plaintiff suffered as a result of the defendant's infringement
were monetary damages from lost revenues, and thus since
monetary damages are not usually considered irreparable
harm, the defendant asserted that it should not have been
enjoined. Triad, 64 F.3d at 1335. Affirming the district
court's preliminary injunction order, we acknowledged the
general validity of the defendant's contention, but held that
"[i]n a copyright infringement action, however, the rules are
somewhat different." In copyright infringement actions, there
is a presumption of irreparable harm and thus the plaintiff
"need only show a reasonable likelihood of success on its
copyright infringement claim to support the district court's
grant of the preliminary injunction." Id.
 We rejected the defendant's argument that monetary
damages were adequate as a matter of law -- we did not
review the district court's factual findings for clear error. The
implication of this resolution is that the alleged availability of
money damages is not a reason to deny injunctive relief. See
also Johnson Controls, 886 F.2d at 1174 (holding that as a
result of the presumption of irreparable harm, the plaintiff
"need only show a reasonable likelihood of success on its
copyright infringement claim to support the district court's
grant of the preliminary injunction").
Commentator Nimmer supports this result. Nimmer writes
that if a plaintiff establishes a likelihood of success on the
merits of a copyright infringement claim, "it would seem erroneous to deny a preliminary injunction simply because actual
damages can be precisely calculated . . . ." 4 Melville B. Nimmer & David Nimmer, Nimmer on CopyrightS 14.06[A], at
14-105 (1997); see also American Direct Mktg., Inc. v. Azad
Int'l, Inc., 783 F. Supp. 84, 96 (E.D.N.Y. 1992) (noting that
in the Second and Ninth Circuits, "a finding of likelihood of
success on the merits automatically triggers a preliminary
injunction, and failure to issue one is reversible error if the
validity of the copyright and existence of copying are not at
issue"); Concrete Mach. Co., 843 F.2d at 612 (discussing the
presumption of irreparable harm and stating that"[t]here is
. . . no need actually to prove irreparable harm when seeking
an injunction against copyright infringement").
2. The district court erroneously permitted Avant! to
rebut the presumption of irreparable harm.
Here, Avant! argued in opposition to Cadence's preliminary injunction motion that Cadence could not establish irreparable harm because the harms alleged by Cadence (e.g., lost
sales and an inability to reposition itself as a service-oriented
company) either were not irreparable or were speculative.
From these facts, the district court concluded that Avant!
had rebutted the presumption of irreparable injury. The district court's sole statement of its findings was: "Cadence's
claim of lost sales of other products and services would seem
to be quantifiable. Other claims of loss of reputation or position would appear to be somewhat speculative, particularly
given Cadence's established position in the marketplace."
Cadence Design Sys., Inc. v. Avant!, Inc., No. C95-20828, at
10 (N.D. Cal. Mar. 19, 1997).
 The district court's conclusion was erroneous. Avant!
could not, and therefore did not, rebut the presumption of
irreparable harm by presenting evidence that Cadence's damages "seem[ed] to be quantifiable." 6 Avant!'s argument,
which the district court accepted, was no different than the
argument made by the defendant in Triad and the argument
that could be made in most cases of copyright infringement
that involve a copyrighted commercial work.7 If this argument
were to prevail, the presumption of irreparable harm would
have little meaning in commercial settings.8
 Avant! did cite decisions where a copyright defendant
rebutted the presumption of irreparable harm.9 These decisions, however, are readily distinguishable. For example,
some courts have found the presumption rebutted when the
plaintiff's copyrighted item is no longer on the market -- a
factor not present in the case on appeal. See , e.g., Marisa
Christina, Inc. v. Bernard Chaus, Inc., 808 F. Supp. 356, 360
(S.D.N.Y. 1992); LucasArts Entertainment Co. v. Humongous
Entertainment Co., 815 F. Supp. 332, 337 (N.D. Cal. 1993)
(finding no likelihood of success but noting that even if the
plaintiff had established a likelihood of success, the court
would have denied a preliminary injunction because the plaintiff's product and the defendant's product did not compete).
 Some courts have held that undue delay by the plaintiff
can rebut the presumption -- but this is another factor not at
issue in this appeal. See, e.g., Richard Feiner & Co. v. Turner
Entertainment Co., 98 F.3d 33, 35 (2d Cir. 1996).
 One could also argue that the presumption is rebutted
where the plaintiff has not been harmed, where any harm is
de minimis, or where the defendant acted with innocent intent,
relying on lack of copyright notice. See 4 Nimmer, supra,
S 13.03[F], at 13-145; cf. Belushi v. Woodward, 598 F.
Supp. 36, 37 (D.D.C. 1984) (denying injunction where one
photograph in the defendant's book infringed the plaintiff's
copyright). Here, however, the district court did not base its
decision on any of these possible findings.
Avant! engaged in an extensive discussion of our opinion
in Abend v. MCA, Inc., 863 F.2d 1465 (9th Cir. 1988), aff'd
sub nom., Stewart v. Abend,
495 U.S. 207
(1990), but that
decision is also easily distinguished. In Abend , the author of
several short stories owned the statutory copyrights for the
works. The author assigned his right to make motion picture
versions of one of the stories to a production company. The
author also agreed to renew the copyright for the story and to
assign the same motion picture rights to the company. The
author died without renewing the copyright, and the right to
renew passed to the author's trust, which renewed the copyright at the appropriate time. Because an assignee of renewal
rights takes only an expectancy, and because the author died
before the copyright was renewed, the defendants did not
receive the renewal motion picture rights. Accordingly, the
plaintiff (the author's trust's assignee) brought a copyright
infringement suit against the defendants for distributing the
motion picture during the renewal term.
We upheld the district court's decision to not preliminarily
enjoin the defendant. We quoted Nimmer on Copyright for the
proposition that " `where great public injury would be worked
by an injunction, the courts might . . . award damages or a
continuing royalty instead of an injunction in such special
circumstances.' " Abend, 863 F.2d at 1479 (alteration in original) (quoting 3 Melville B. Nimmer, Nimmer on Copyright
S 14.06[B], at 14-56.2 (1988)). We found that special circumstances existed in Abend because: the defendant had done
nothing improper but had simply lost the right to the short
story on a "technicality" existing under the Copyright Act of
1909; an injunction would have prohibited the defendant from
enjoying profits from its own creative efforts (i.e., creating the
motion picture from the short story); and the public would be
denied the opportunity to view a classic film. Id. at 1478-79.
 Abend is distinguishable from the case on appeal. Here,
Avant! deliberately copied Cadence's code. Avant! was not
an innocent infringer that believed that it had purchased the
right to use Cadence's copyrighted work. Moreover, the district court found that an injunction would not result in harm
to the public. Finally, the district court made no finding that
there were special circumstances militating against an injunction -- it merely held that monetary damages rebutted the presumption of irreparable harm.
Accordingly, we reverse the district court's order. On
remand, the district court shall issue an order enjoining sale
of the ArcCell products.
B. The District Court Erred by Giving Improper
Emphasis to the Harm that an Injunction Would
 The district court committed further error by finding
that the balance of hardships "tilt[ed] heavily in Avant!'s
favor." Specifically, the district court found that the infringing
software accounted for 60% of Avant!'s income and that a
preliminary injunction would "seriously jeopardize Avant!'s
ability to survive as a relatively new company which invested
significant time and resources in the development of its products prior to the time that Cadence initiated its lawsuit."
Cadence Design Sys., at 10.
 In this circuit, as well as in other circuits, a defendant
who knowingly infringes another's copyright "cannot complain of the harm that will befall it when properly forced to
desist from its infringing activities." Triad , 64 F.3d at 1338.
In Triad, we affirmed the district court's order enjoining the
defendant from servicing certain of the plaintiff's computers,
rejecting the defendant's argument that the inability to service
the plaintiff's computers would cause it to suffer extreme
harm. We quoted Concrete Mach. Co., 843 F.2d at 612, for
the proposition that "[w]here the only hardship that the defendant will suffer is lost profits from an activity which has been
shown likely to be infringing, such an argument in defense
`merits little equitable consideration [on an appeal from a preliminary injunction.]' " Triad, 64 F.3d at 1338 (alteration in
original); see also Universal City Studios, Inc. v. Sony Corp.
of Am., 659 F.2d 963, 976 (9th Cir. 1981) (noting that once
the court has determined that there is infringement,"the continued profitability of appellees' business is of secondary
concern"), rev'd on other grounds,
464 U.S. 417
Apple Computer, 714 F.2d at 1255 (reversing a district court
order that considered the harm to a knowing infringer); Atari,
672 F.2d at 620 (finding that the balance of hardships did not
weigh against entry of a preliminary injunction where the
only alleged hardship to the defendant was the loss of profits
from marketing the infringing work); Helene Curtis Indus. v.
Church & Dwight Co., 560 F.2d 1325, 1333 (7th Cir. 1977)
("Advantages built upon a deliberately plagiarized make-up
do not seem to us to give the borrower any standing to complain that his vested interests will be disturbed.") (internal
quotation marks omitted); 4 Nimmer, supra,S 14.06[A] at 14-
103 (noting that the balance of hardships factor is not usually
invoked in copyright cases).
 One might contend that the language used in the decisions cited above leaves room to argue that the balance of
hardships should be considered if the defendant's original
contribution is substantial, the infringing portion of the defendant's work is minimal, and any damages to the plaintiff are
minor. Here, Avant! asserts that at most its software used only
5% of Cadence's copyrighted code. However, even if this fact
could support the district court's decision to give greater
weight to the balance of harm analysis than would otherwise
be proper, the district court made no findings concerning the
proportion of infringing and non-infringing material in
Avant!'s software and did not draw any conclusions that
relied on this fact.
 Therefore, the balance of hardships issue cannot be
accorded significant -- if any -- weight in determining
whether a court should enter a preliminary injunction to prevent the use of infringing material in cases where, as here, the
plaintiff has made a strong showing of likely success on the
merits. The balance of hardships factor may assume significance in cases where the plaintiff has not established a strong
likelihood of success on the merits, but here Cadence established that it was likely to succeed on the merits of its copyright claim. The district court appears to have been strongly
influenced by the fact that an injunction would be devastating
to Avant!'s business, which we hold to be error warranting
reversal of the district court's decision.
III. The District Court Erred by Assuming that an Injunction
Would be Improper Even if the Aquarius Software
Infringed Cadence's Copyrighted Source Code.
 The district court concluded that Cadence was likely
to prevail on its claim that Avant!'s clean room procedures
were inadequate. Cadence Design Sys., at 11. The district
court did not state, however, whether its findings related to
Cadence's copyright infringement claim or to Cadence's misappropriation of trade secrets claim.
Specifically, the court found that Avant!'s use of an independent expert to examine portions of code identified by
Cadence as infringing and rewrite or delete any potentially
infringing code in the Aquarius software "d[id ] not appear to
have been sufficient" because Avant! was able to take advantage of its knowledge of the functions and the basic structure
of the Cadence code. Id. In addition, the district court noted
that the use of Cadence's code to create specifications for
Avant!'s engineers "rais[ed] serious questions." Id. The district court expressly made no finding as to whether the Aquarius software contained code copied from Cadence. The
district court did not state whether any conduct occurring
within the clean room process infringed Cadence's copyright
(e.g., intermediate copying of the Cadence code during the
process of creating the Aquarius code).
 Ultimately, the district court concluded that there was
insufficient evidence to enjoin the production or sale of the
Aquarius software "to the extent that they contain essentially
the same source codes as do Avant!'s prior products. " Id. at
 The district court's conclusion was erroneous. If the
Aquarius software infringes Cadence's copyright, the district
court should have entered an order preliminarily enjoining
Avant! from selling the software.
 Cadence asserts on appeal that the district court should
have preliminarily enjoined Avant!'s use of the replacement
code "because Avant! violated Cadence's copyrights and misappropriated Cadence's trade secrets to create the replacement
code." However, as stated above, there are no findings upon
which we could base a conclusion that Avant! violated
Cadence's copyright, and Cadence did not appeal the trade
secret aspects of the district court's order. On remand, the district court will have to determine whether the Aquarius software infringes Cadence's code. If so, the district court shall
enter an order enjoining the sale of the software.
Reversed and Remanded.
*The Honorable Dean D. Pregerson, United States District Judge for the
Central District of California, sitting by designation.
1 Place and route software is used to design integrated circuits, i.e., computer chips. The software is designed to place the thousands (sometimes,
millions) of tiny transistors that comprise the chip and "route" (or, connect) the transistors to other transistors. The parties' software automates
and optimizes the process of placing and routing the transistors.
2 Computer programs are written in specialized languages (e.g., PASCAL, COBOL) called source code. The source code, which humans can
read, is then translated into a form that computers can "read." The computer readable form, which operates on a binary system, is called object
3 This was not Cadence and Avant!'s first dispute. In early 1994,
Cadence drafted a complaint alleging, inter alia , trade secret misappropriation after its Vice President, Gerald Hsu, left Cadence to work for
Avant!. The parties settled this matter in a June 6, 1994 settlement agreement. The agreement prohibited Hsu from working for Avant! until July
1994 and provided for a mutual general release of any existing claims
related to Hsu's employment by Avant!. The district court found that the
release did not resolve the parties' 1995 federal court dispute.
4 In the Fifth Circuit there is no presumption of irreparable harm in
copyright infringement cases, and thus in the Fifth Circuit, a copyright
defendant can prevail by showing the adequacy of money damages. The
Fifth Circuit is the only court of appeals that does not apply the presumption of irreparable harm. See Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 612 n.12 (1st Cir. 1988) (noting that the Fifth
Circuit is the only circuit that does not apply the presumption).
5 There are ways to rebut the presumption of irreparable harm other than
by showing the adequacy of monetary relief. These means are discussed
6 In addition, although the ability to determine Cadence's damages is a
factual question not at issue on this appeal, one wonders how Cadence
could prove how many sales it lost because of the presence of Avant!'s
infringing software. See Budish v. Gordon, 784 F. Supp. 1320, 1337 (N.D.
Ohio 1992) (finding that if the defendant was not enjoined from selling
infringing books, there would be no reasonable manner for the plaintiff to
prove how many sales he lost due to the defendant's competing books).
7 For example, in Atari, the court applied the presumption of irreparable
harm even though the plaintiff and the defendant were both corporations
marketing video games and the loss was a loss of sales caused by competition from the defendant's infringing game. 672 F.2d at 620. The court
even discussed the specific amount of money the plaintiff had invested to
develop the game and specific sales figures, yet the court never suggested
that the circumstances permitted the defendant to rebut the presumption of
irreparable injury. Id.
8 We further note that if the defendant is using copyrighted material
owned by the plaintiff and a court awards damages instead of enjoining
such use, the court has, in essence, made the plaintiff an involuntary licensor of its copyrighted material. The defendant can then use the copyrighted
material to compete with the plaintiff.
9 In addition to arguing that monetary damages suffice to rebut the presumption of irreparable harm, Avant! asserts that we can uphold the dis-trict court's decision to deny Cadence's motion for preliminary injunction
because the district court never found that Cadence was likely to succeed
on the merits of its copyright infringement claim. Avant! asserts that the
district court found that Avant! copied some of Cadence's code, but that
the district court did not necessarily find that Avant! copied protected portions of Cadence's code. Avant!'s argument is belied by a reading of the
district court opinion, which found that Cadence had established a likelihood of success on its copyright infringement claim.