What Constitutes A “Digital Copyright” Solution?

Mary Hodder makes some interesting criticisms of Creative Commons licenses and ACSs.  I’ve heard variants on both accounts before, but I’m still not quite sure I get the concerns.  Mainly, the concern seems to be that these particular tools do not fit the need for “digital copyright.” A related concern is that these tools are “band-aids” – temporary solutions to complex problems – that will be counterproductive. 

I view CC and ACS as direct attempts to make copyright conform to the Internet.  ACS does not fight the Internet and the benefits of costless copying and distribution; instead, it tries to build around that while remunerating artists.   CC obviously takes a different tact, but the problems addressed are still roughly the same – it tries to shift the balance of rights such that people can have “true sharing” to a substantial extent.  Neither tool necessitates a specific way of dealing with derivative works, but both point the way towards more balanced directions (Fisher would allow derivatives but split compensation; for CC, no-derivs is only an option).

I suppose “band-aids” like CC could help entrench the current system by making people think that it solves all of copyright’s problems. But isn’t it more likely that CC’s “some rights reserved” approach will demonstrate to people the need for reform? Doesn’t it give people a temporary solution while pointing the way towards a new copyright? Criticisms that CC is “a second-best solution” seem to amount to complaining about it being a license and not a law.

That’s not really so with the ACS, which is often proposed as a new legal regime for copyright. Unlike with CC, the intent is for ASCs to actually be a “complete overhaul” of copyright – Fisher’s model is a significant restructuring of copyright, attempting to “reconcile how to give creators the right amount of … compensation … and the public (and other creators) the right amount of access to the public domain, sharing, fair use” et al. 

Calling ACS band-aid thus seems to mean something different here. I do recognize that the model, if mandated by the government, could prove inflexible and ineffective, and in that sense it might be a kluge.  So, to an extent, I agree that patience and more consideration is needed. But, at some point, we can’t keep waiting for the solution, and we must attempt to make that overhaul within current constraints. 

Bottom line: what, more specifically, makes these “analog solutions”?  What makes the CC type of “band aid” ultimately bad?  And when is it time to say that we need to attempt a complete overhaul like ACS even if it might end up being merely a temporary and inefficient fix?