A structured, comprehensive settlement of the Google Book Search case offers enormous potential benefits to society. To the best of my understanding, however, the initial proposed settlement could not be defended on the basis of current law. The class-action device being used to present the settlement has never been used in this dramatic a fashion before.
Laws can change, and in our common-law system, courts can extend the law in the course of deciding cases. But blessing the procedural mechanisms used by this settlement carries enormous danger of abuse, not only in this case but also in future cases that might cite it as precedent. Thus, if the legal system is to approve the revised settlement, it must do so on the basis of a principle that (a) justifies the proposed arrangement, (b) applies to others who are similarly situated, and (c) has recognizable, enforceable limits. That principle is what we should be evaluating, not just the settlement itself.
I hope that such a principle exists. I do not believe that the parties have yet provided one. But the rule of law demands no less.