Matthew Sag, Associate Professor at the DePaul University College of Law, has self-archived "The Google Book Settlement and the Fair Use Counterfactual" in SSRN.
Here's an excerpt:
In the wake of the proposed Settlement, the Google Book debate has shifted away from the merits of book digitization, and refocused on questions of commoditization and control. This Article highlights four critical areas in which the Settlement differs sharply from the predicted fair use ruling. First, the Settlement permits Google to engage in a significant range of uses including the complete electronic distribution of books that go well beyond fair use. Second, the Settlement provides for initial cash payments by Google to the copyright owners and a fairly generous revenue sharing agreement, neither of which would have been required under a fair use ruling. Third, the agreement creates a new set of institutional arrangements that will govern the relationship between Google and the copyright owners covered by the Settlement. The foundations of this new institutional framework are the Settlement agreement itself, the creation of a collective rights management organization called the "Book Rights Registry" and the "Author Publisher Procedures." The fourth area in which the Settlement differs from the likely fair use outcome relates to the accessibility, commoditization and control of orphan works.