braries in case of the loss or destruction of an original. The Authors are not entitled to make this argument on behalf of others, because § 501 of “the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf.” ABKCO Music, 944 F.2d at 980; see also our discussion of standing, supra pp. 93–94.
Because the record before us does not reflect the existence of a non-speculative risk that the HDL might create replacement copies of the plaintiffs’ copyrighted work, we do not believe plaintiffs have standing to bring this claim, and this concern does not present a live controversy for adjudication. See Clapper, U.S. at , 133 S.Ct. at 1147; Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., 607 F.3d 951, 955 (2d Cir.2010) (noting that we have an “independent obligation” to evaluate subject matter jurisdiction, including whether there is “a live controversy”). Accordingly, we vacate the district court’s judgment insofar as it adjudicated this issue without first considering whether plaintiffs have standing to challenge the preservation use of the HDL, and we remand for the district court to so determine.
II. Ripeness of Claims Relating to the Orphan Works Project
The district court also held that the infringement claims asserted in connection with the OWP were not ripe for adjudication because the project has been abandoned and the record contained no information about whether the program will be revived and, if so, what it would look like or whom it would affect. HathiTrust, 902 F.Supp.2d at 455–56. We agree.
In considering whether a claim is ripe, we consider (1) “the fitness of the issues for judicial decision” and (2) “the hardship to the parties of withholding court consideration.” Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir.2005) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)).
The fitness analysis is concerned with whether the issues sought to be adjudicated are contingent on unknowable future events. N.Y. Civil Liberties Union v. Grandeau, 528 F.3d 122, 132 (2d Cir.2008). The Authors assert that their OWP claim is fit for judicial decision because it “will not change based upon the particular procedures that [the University of Michigan] ultimately employs to identify orphan works.” Appellants’ Br. 13. According to the Authors, the legality of the OWP does not depend upon the specific means the Libraries ultimately employ to identify orphan candidates or the time the Libraries wait before making works available. Rather, the Authors believe that any iteration of the OWP that results in the publication of complete copyrighted works is an infringement of copyright.
We are not persuaded that these concerns create a ripe dispute. Even assuming, arguendo, that “[a]ny iteration of the OWP under which copyrighted works are made available for public view and download” would infringe someone’s copyright, id., it does not follow that the OWP will inevitably infringe the copyrights held by the remaining plaintiffs in this case.[1] It is conceivable that, should the University of Michigan ever revive the OWP, the procedures it ultimately implements to identify orphan works would successfully identify
- ↑ We note that, in addition to our conclusion about ripeness, the same reasoning leads us to conclude that the remaining plaintiffs lack standing to bring this claim, see our discussion of standing, supra pp. 93–94.
