GBS: Peter Hirtle Thinks There’s No Room for a Legislative Solution

His point is that there is so much room separating the Marybeth Peterses and Brewster Kahles of the world that no “legislative solution” could actually satisfy all the people calling for one:

In summary, if we can read between the lines of her testimony, Peters’s preferred legislative solution, would bend over backwards to protect the interest of rights holders. It would do nothing to lower the transaction costs. Google could, if it wanted, try to convince Congress (and the Copyright Office) that “a solution that is more like a compulsory license may make sense for those engaged in mass scanning,” but the Office’s traditional opposition to compulsory licenses stands. I don’t see anything in Peters’s testimony that suggests a likely legislative solution that would solve the four problems facing mass digitization. …

Kahle’s vision is one where “out-of-print” equals “orphan,” and anyone is able to make non-commercial use of the work unless an owner comes forward. It is an inspiring vision, but to suggest that this is “roughly how Orphan Works legislation” works is disingenuousness worthy of Sergey Brin himself. Under the proposed legislation, orphan and out-of-print books could be used by anyone for any purpose - but only after a reasonable search for a copyright owner had been conducted. Out-of-print but non-orphan books could not be used, even if the purpose was non-commercial. No one other than Kahle has dreamed of a system where failure to maintain a work in print would limit one’s copyright monopoly.

He concludes by arguing that the settlement, while flawed, is good enough that we should embrace it, rather than waiting for Congress to square the circle of satisfying everyone calling for Congress to act.