This court denied similar relief to GMAC in 1992 based upon the court's finding that GMAC had failed to show either irreparable injury or a likelihood of success on the merits of its copyright infringement claim. College Entrance Examination Board v. Cuomo, 788 F. Supp. 134 (N.D.N.Y. 1992). In that decision, the court also noted that GMAC's delay in seeking such relief further mitigated against the court's granting its request at that time.
Even though a work is read by a large group of people, it is still unpublished where it is held confidential and the authors do not relinquish control over their copies of the work. See College Entrance Examination Board v. Cuomo, 788 F. Supp. 134, 139-41 (N.D.N.Y. 1992) (finding that administered secure tests were necessarily unpublished because author did not relinquish control and finding for author on second fair use factor). Plaintiffs have adequately demonstrated that the Exhibit B Advanced Technology works are kept confidential using tight security measures.
Rather, Ms. Kekis must make a clear showing of likelihood of success on the merits. College Entrance Examination Bd. v. Cuomo, 788 F. Supp. 134, 138 (N.D.N.Y. 1992). This burden is not overly intrusive under the circumstances because of the extraordinary, drastic nature of the preliminary relief she seeks.