Congress is the best actor for copyright law. The Courts fail.

By contrast, opt-out systems reverse the general principle of copyright law that copyrighted works should be reproduced or disseminated only with the prior approval of the copyright owner. It has become clear, however, that opt-out systems might serve the objectives of copyright law in some compelling circumstances if appropriately tailored and fairly administered, and if created with oversight from Congress. One potential optout system is a form of licensing known as extended collective licensing. Extended collective licensing allows representatives of copyright owners and users to mutually agree to negotiate on a collective basis and then to negotiate terms that are binding on all members of the group by operation of law. It has the potential to provide certainty for users and remuneration for copyright owners (for example in mass digitization activities) but would provide some control to copyright owners wanting to opt out of the arrangement.

Courts have affirmed the fact that fundamental changes like this are the domain of Congress because Congress is designed to weigh the equities of the public interest and to craft broadly applicable policies. A court, by contrast, must apply the facts and law as it finds them. This is why the Supreme Court noted in Eldred v. Ashcroft that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives,”108 and why Judge Chin, in rejecting the proposed settlement between Google and a class of authors and publishers, said that “the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress” than the courts.109 Among the questions Congress could consider are what kinds of uses might benefit from opt-out regimes (e.g., certain kinds of uses in higher education, certain kinds of library access), and what the actual terms and opt-out mechanisms should entail.