GBS: Pam Samuelson: Google Books is Not a Library

A reply to last week’s Sergey Brin op-ed:

Brin and Google’s CEO Eric Schmidt have also been saying publicly that anyone can do what Google did—scanning millions of books to make a corpus of digitized books. They perceive Google to have just been bolder and more forward-looking than its rivals in this respect. But this claim is preposterous: By settling a lawsuit about whether scanning books to index them is copyright infringement or fair use, Google is putting at risk the next guy’s fair use defense for doing the same. And if one of Google’s rivals aims to develop a commercial database like GBS when it starts scanning, it won’t have a fair use leg to stand upon. Nor is there any reason to believe that any lawsuit against a rival could be settled on comparable terms to those Google has obtained in the current deal. The DOJ has urged the parties to find some creative ways to allow others to obtain a comparable license from the settling class of authors and publishers.

Question: how exactly is Google’s decision to settle rather than litigate to resolution “putting at risk the next guy’s fair use defense for doing the same”?