For any other seller to sell access to books in this market opened up by the settlement, they’d need to make individual agreements with individual rightsholders (after finding them), or risk being sued. Google, by virtue of the settlement, is the only entity that has a legal ability to sell these works, without being sued, and without tracking down and making bilateral agreements with every rightsholder.

Now, while I said ‘no more and no less’, it could be argued that without access to THAT market, pre-2009 books, especially non-commercially-available ones, without haivng to make individual agreements with every rightsholder–that without that, anyone else is going to have trouble competing with google, that this is the critical mass that will make google unbeatable in the e-book market in general. Perhaps so, so perhaps it is more than this, but it all starts from this. (And it is only about e-books, not print books).

The ability to legally sell that huge volume of books without individual agreements with every possible rightsholder is something that ONLY google will have (unless someone else can get sued and get a class action settlement–a class action settlement is pretty much the only way to get that right!), and is a pretty huge advantage.

Peter Brantley’s blog has some pretty good citations to arguments to this effect. For instance,
http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/06/class-action-monopoly

And here’s an essay by James Grimmelman that I was pointed to by Brantley’s blog that discusses this issue, among others, and is pretty essential reading:

http://laboratorium.net/archive/2008/11/08/principles_and_recommendations_for_the_google_book