Again, the Music Modernization Act (2018), which the Archive itself celebrated, was meant to put a dent in this problem. You prepare a list of works, then send a spreadsheet to the copyright office. Copyright holders then have 90 days to state that they're using the material commercially. If not, the library or archive (or individual) is free to make these works downloadable.

Orphaned works are a problem, but here was a way to move things a tiny bit forward. Unfortunately, just like Controlled Digital Lending it was left in the hands of some particularly careless people. I'd imagine the settlement also prohibits them from submitting the list (and thus causing the parties to do an enormous amount of research work).

I'm always up for a good ethics debate and likely wholeheartedly agree with your position. But this is a very different issue that resulted in clear damage to the culture we share and the future we all want.

"Legal" vs "ethical" summarizes everything that is wrong about the current state of copyright.