Computer programs are protected under the U.S. Copyright Act. The owner of the copyright holds the right to exclude others from copying their software, making works derivative of it, and from distributing or using it.

To prove a claim of copyright infringement a plaintiff must demonstrate:

• - Ownership of a valid copyright;
• - Copying the elements of the work that are original; OR
• - Intentionally inducing or encouraging direct infringement of the copyright.

In a copyright infringement lawsuit, a preliminary injunction can be a useful tool to use early in the litigation. To obtain a preliminary injunction a party must show:

• - Likelihood of success on the merits of the case;
• - That he or she is likely to suffer irreparable harm in the absence of preliminary relief;
• - That the balance of equities tips in his favor;
• - That the injunction is in the public interest.

While each factor is considered by the court, the likelihood of success is often the most important factor. For instance, the 1^st Circuit recently allowed a preliminary injunction which forced a defendant to stop selling certain software as well as recall all existing licensees of the product. See Accusoft Corporation v. Quest Diagnostics, Inc., 2012 U.S. Dist. LEXIS 54216 (D. Mass. Apr. 18, 2012).

In Accusoft, the 1^st Circuit held that in a software infringement case, irreparable harm is essentially proven once success on the merits of the case is shown. The Court reasoned that "[i]n an industry where exclusive control of intellectual property is crucial to profitability, it is understandable that plaintiff fears that unchecked distribution of its code will lead to market disadvantages that cannot be corrected."

The Court has therefore sidestepped the issue presented in ebay Inc. V. MercExchange, L.L.C., 547 U.S. 388, 393 (2006) in which the Supreme Court held that categorical rules regarding the presumption of irreparable harm should not be used in a patent infringement action. While the 1^st Circuit has not decided whether ebay "precludes application of the traditional presumption of harm in other fields of intellectual property law," the recent decision in Accusoft provides insight that, at least in cases alleging software infringement, irreparable harm will be presumed once a plaintiff shows likelihood of success on the merits.

The use of the preliminary injunction therefore allows the party to obtain significant relief at an early stage of the litigation. An experienced attorney can assist you or your company in evaluating disputes surrounding infringement of software code and copyrights.