Jonathan Hillel via San Jose Mercury News; Opinion: Justice Department's fear of Google book publishing is misplaced:
"Many of the public comments decrying the settlement come from Google's largest competitors. The Internet Archive, which has scanned 1.5 million books to date, claims that Google will monopolize the market for orphaned texts. But the comments by the Archive and others ignore a crucial fact.
The fact that orphan works are out of print implies that these books have little if any market value, and publishers do not consider them profitable to sell. Therefore, they are only available at the few libraries that stock them. In this state, orphan works are unlikely to ever be rediscovered by the market or gain popularity.
Digitizing orphan works will make them available, but there is no guarantee they would acquire market value or earn a profit. Google is paying a high upfront cost for this gambit in both infrastructure investment and settlement payments.
Given all that investment, antitrust penalties on Google would allow its competitors to free-ride on its investment. Internet Archive President Peter Brantley has advocated requiring open access to the orphan works. In practice, that would mean that after Google pays to scan all orphan works, its competitors will be able to pick and choose which ones to offer...
Google is creating a market for orphan works and is making them available for widespread access. Antitrust interference will only distort market incentives and hinder the growth of this nascent sector."
http://www.mercurynews.com/opinion/ci_12893298
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