This is from last April, when the picture people were excluded from the google books settlement but the judge said they were welcome to start their own lawsuit. They did. I always figured the scanning without permission and the whole legal business was just a way to create mechanical licensing, when there really wasn't any other conceivable way to get mechanical licensing for books.
"The case is certainly less interesting as a fair use exercise, than as more confirmation of a major policy shift for the digital age. "What we are seeing is the commencement of the age of filing copyright class actions as a way of creating universal licenses," Grimmelmann told PW. For the parties involved, that makes sense, he acknowledges. "But as somebody concerned with the rule of law and the judicial system, this is an awful way to create copyright policy.""
What, he thinks there's a better way? Nope, he didn't say that. He just said it was awful. It is. But probably the only option.