An interesting article here: http://hasbrouck.org/articles/Google...tersRights.pdf
Once the lawsuit was filed, Google adopted the same strategy that had worked so well for the defendants in Reed Elsevier v. Muchnick: use the lawsuit to negotiate a “settlement” that wouldn't just provide compensation for past infringement, but would give the defendants – the copyright thieves – a license by default, in perpetuity, to continue their previously infringing conduct, protected from further liability by the release of claims embodied in the settlement.
With Google's deep pockets, they were able to get an even better deal for themselves than the one the defendants had negotiated with Boni in Reed Elsevier v. Muchnick. Google had to pay a bit more – a total of $125 million including $30 million to Boni and his co-counsel – but for that they got a settlement that would, among other features, give Google an effectively exclusive license for the rest of the life of the copyright to market electronic copies of all out-of-print but in-copyright books for which the rightsholders don't come forward to claim a share of the revenues or object to Google’s “use’ of their work.
I don't pretend to perfectly understand what's going on (in my previous post "not legal" wasn't really appropriate), but Google defended themselves by saying costs to negociate with each copyright holder would be astronomical.
What I didn't know is the following, which backs up Google's apology:
There’s little reason for publishers to be involved at all in making decisions about electronic publication of most of these works. The vast majority of in-copyright books subject to the settlement (a) were published before e-books or the Internet were conceived of, and (b) are out of print. Authors never assigned publishers any electronic rights to most of these books. For the minority for which e-rights were assigned (as part of a “subsidiary rights” clause applicable to “all rights” or “rights in all media now known or hereafter invented”) those rights have under typical contracts long since reverted to the author as a result of the book going out of print. While some have tried to portray the settlement as being “primarily” about orphan works, by the numbers it is overwhelmingly about books for which the e-rights are 100% author-owned, and with respect to which the settlement would transfer a share of control and revenues to publishers.
The article also does not insist much on the fact that the grant is about out-of-print books, not in-print books or already available through digital distribution (although the latter is ambiguous as stated in the article, I doubt that Google is trying to steal). This might still be a bit disturbing, but since the ones who care about their out-of-print works get a reasonable compensation for works not in print anymore and that have been made profitable long ago..