D. Nobody Here to Hear the Deadfall
The most-important aspect of the Second Circuit's opinion — and one for which there is no real counter — is its refusal to decide the fate of orphan works. On the way there, the Court takes a very short detour into the preservation argument and rightly notes that the entire argument is not amenable to decision; it is neither ripe (having come to pass) nor imbued with either immediacy or standing.
The record before the district court does not reflect whether the plaintiffs own copyrights in any works that would be effectively irreplaceable at a fair price by the Libraries and, thus, would be potentially subject to being copied by the Libraries 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.”
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. 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.74
That's just foreshadowing of the orphan-works abstention. The Court offers two independent reasons for refusing to decide anything relating to orphan works: The absence of standing, as already discussed, and a lack of ripeness. Here, though, the Court subtly undermines both this decision and most others related to ripeness with its analysis.
As indicated above, it is far from clear that the University of Michigan or HathiTrust will reinstitute the OWP in a manner that would infringe the copyrights of any proper plaintiffs. If that occurs, the Authors may always return to court. Suffice it to say that “[t]he mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.”75
With due respect, this is incorrect, because it leaves off a critical qualifier... and it's a critical qualifier that applies to this matter. The critical qualifier is whether the resumption might, or might not, result in either criminal prosecution or an infringement of civil rights that would independently justify injunctive relief (not mere damages). There are more voting-rights and freedom-to-assemble cases than one can shake a stick at illustrating this — some quite recently, and some arising in the same city as the Second Circuit sits.76 Whether assertion of copyrights, with its potential criminal penalties77 and inherent First Amendment implications, falls within this is a much closer question than it might seem. The Court would have done better never reaching ripeness and instead relying only upon standing. The Second Circuit did correctly evade the question, but this part of its rationale for doing so fails.
As a policy matter, though, these are the two areas at issue that most require a decision. As Judge Chin (now on the Second Circuit) remarked in the corresponding case against the publishers, that's a matter for Congress.78 And pardon my cynicism, but that's not going to result in a quick, a workable, or a fair resolution. As I have remarked before in other contexts, actual creators' interests — presuming that they are at all uniform — will be drowned out by lobbyists and other corporate interests. Don't kid yourselves: The 'netizen movement is much better organized (and much better funded) than even discrete subsets of creators that actually have uniform interests. Combine this with the agency capture of the Copyright Office and I find little reason for optimism that there will be a nuanced solution... or possibly even one that passes constitutional muster.
In the end, the deadfall and pulped trees may or may not have generated a sound, because there was no court with jurisdiction to hear it. Any sound generated is far from final and is being caused by lumber poachers and parties with only a dubious and partial title to the forest in the first place.
- Slip op. at 31–32 (citations omitted).
- Slip op. at 34 (citation omitted).
- See, e.g., Irish & Lesbian Gay Org. v. Giuliani, 143 F.3d 638 (2d Cir. 1998); see also, e.g., Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557 (1995); Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992); United for Peace & Justice v. City of New York 243 F. Supp. 2d 19 (SDNY 2003).
- 17 U.S.C. § 506(a)(1)(B), (C).
- Author[']s Guild, Inc. v. Google, Inc., 770 F. Supp. 2d 666, 675 (SDNY 2001) ("The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties.")