Page:Authors Guild v. HathiTrust (2014).pdf/19

 and exclude works to which a plaintiff in this suit holds a copyright. Consequently, we cannot say that any of the plaintiffs face a “certainly impending” harm under our ripeness analysis, Clapper, U.S. at, 133 S.Ct. at 1147; see also Grandeau, 528 F.3d at 130 n. 8.

Nor do we perceive any hardship if decision is withheld. See Grandeau, 528 F.3d at 134. The Authors argue that they would suffer hardship because “there is nothing to stop the Libraries from reinstituting the OWP and then, if owners of the listed works come forward, suspending it again.” Appellants’ Br. 16.

We disagree. 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.” Grandeau, 528 F.3d at 134 (internal quotation marks omitted). For these reasons, we conclude that the OWP claims are not ripe for adjudication.

The judgment of the district court is AFFIRMED, in part, insofar as the district court concluded that certain plaintiffs-appellants lack associational standing; that the doctrine of “fair use” allows defendants-appellees to create a full-text searchable database of copyrighted works and to provide those works in formats accessible to those with disabilities; and that claims predicated upon the Orphan Works Project are not ripe for adjudication. We VACATE the judgment, in part, insofar as it rests on the district court’s holding related to the claim of infringement predicated upon defendants-appellees’ preservation of copyrighted works, and we REMAND for further proceedings consistent with this opinion.