He concedes that "the problem of orphan works is real," but thinks this is the wrong remedy:
"The proposed change is unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.
"The change is also unwise, because for all this unfairness, it simply wouldn’t do much good. The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a 'diligent effort' is not going to be cheap."
And he takes the opportunity to once again plug his own preferred solution:
"Congress could easily address the problem of orphan works in a manner that is efficient and not unfair to current or foreign copyright owners. Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection. For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1."
Public Knowledge's Gigi Sohn responds to the op-ed here: "What makes this legislation a no-brainer is that with the exception of a handful of small copyright holder groups (who, to my chagrin, have been very effective), there is near unanimous agreement that an orphan works solution is a good idea. There are still some kinks to be worked out in the legislation, but the framework underlying them is basically sound."And Ed Winkleman issues a call for more clarity.