Amaretto v. Ozimals: Non-opposition to the entry of a preliminary injunction

A TRO lasts for a very short amount of time, usually only ten days. So, it wasn’t surprising that after the Court granted its motion for a TRO Amaretto moved for a preliminary injunction, which can last indefinitely. However, what was unexpected is that Defendant Ozimals filed a Statement of Non-Opposition to Amaretto’s request for a preliminary injunction. Ozimals filed a complaint for copyright infringement against Amaretto in the United States District Court for the Northern District of Alabama. Thus, Ozimals believed that the parties were well beyond the DMCA notification activity and didn’t object to Amaretto’s service provider being enjoined from acting on Ozimal’s takedown notice. While it didn’t oppose the entry of a preliminary injunction, Ozimals requested that the Court vacate the injunction hearing. In its Statement of Non-Opposition, Amaretto expressed its concerns that conducing a hearing would be an inefficient use of judicial resources. Amaretto also feared that a hearing would cause the Court to rule on the likelihood of success on the merits “on an extremely abbreviated schedule and without the opportunity for full briefing or evidentiary submissions by the parties, or even any discovery at all by the parties.” (Defendant Ozimals, Inc.’s Response and Statement of Non-Opposition to Plaintiff Amaretto Ranch Breedables, LLC’s Motion for Preliminary Injunction; Request to Vacate Hearing, p. 2). The Court entered the preliminary injunction as unopposed and vacated the hearing. Ozimals’ decision not to oppose Amaretto’s motion for a preliminary injunction was tactical. If an evidentiary hearing was held on the injunction, there was a risk that the Court could make various findings against Ozimals, which could ultimately be detrimental in its copyright infringement action. Thus, Ozimals determined that would it be better to yield to the entry of a preliminary injunction, barring Amaretto’s service provider from taking down offending material on its website, in order to maximize its chances of ultimate success.

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