Laches: Scholars’ Supreme Court Amicus Brief in Support of Neither Party: Petrella v. Metro-Goldwyn-Mayer by Douglas Laycock, Mark P. Gergen, Doug Rendleman :: SSRN

Four scholars of remedies and tort of unquestionable authority have stepped into a copyright case for two reasons: 1) to urge the Supreme Court to recognize the importance of the equitable concept of laches and its applicability to statutory claims; 2) to encourage the court to repair the error of its 2006 decision in eBay v. MercExhange which confused the four part test for issuance of a preliminary injunction ( probable success on the merits, irreparable injury, balance of hardships, and the public interest.)  There is no such test for a permanent injunction which issues only when and to the extent that a party has proven its case. The Supreme Court in eBay:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction

For starters factors 1 and 2 are not separate.  Factor 2) is the definition of 1).  The public interest is not a requirement - just a factor to be considered where appropriate.  And the embrace of a rigid "test" which is contrary to the historic thrust of equity jurisprudence: its flexibility.  - GWC

Scholars’ Supreme Court Amicus Brief in Support of Neither Party: Petrella v. Metro-Goldwyn-Mayer by Douglas Laycock, Mark P. Gergen, Doug Rendleman :: SSRN:

Abstract

The appeal to the Supreme Court in Petrella v. Metro-Goldwyn-Mayer deals with the equitable defense of plaintiff’s laches before suing for copyright infringement. Laches is unreasonable and prejudicial delay. MGM allegedly violated plaintiff’s copyright repeatedly over a period of many years; the statute of limitations has not run on the most recent violations. Plaintiff argues that laches should never apply to a cause of action with a statute of limitations. Defendant argues that laches should bar all relief if defendant relied on plaintiff’s failure to sue earlier, without having to match defendant’s reliance to the remedies plaintiff seeks. 
This scholars’ amicus brief, which supports neither party, argues against all-or-nothing solutions. In particular, the brief says that laches should be available as needed to protect defendant’s reliance, but that defendant should have to show how particular remedies would unfairly override particular reliance interests. Plaintiff also argues that laches should be unavailable because it would be a ground for refusing an injunction that was not mentioned in eBay v. MercExchange. The scholars’ brief takes this occasion to point out several unintended untoward consequences of the four-part test in eBay.

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