Google has somehow managed to avoid the obvious. The scanning/indexing projct creates a “derivative” work. ONLY the copyright holder has the right to CREATE a derivative work. Google has somehow asserted that transforming a work into another medium, NOT altering any of the text, preserving the transformed copy in a lasting manner, and doing so for a commercial purpose is fair use. What about it is fair?

Now if Google were to give up ALL commercial rights to the project, give it and the necessary funding to a consortia of university libraries (such as the ones they are “working with”) and then find a way to restrict the use of the index to educational ones (users must log in through a library, text is displayed for only limited times and is deliberately fuzzy except say for a floating box which allows you to read paragraphs, and the ability to print and read multiple pages is severely restricted, well that might be fair use …. but that is not the Google project.