So what would be necessary to create a marketplace with an opportunity for real competition? Obviously, entities other than Google will have to be able to get the same kind of blanket copyright license on comparable terms. Unfortunately, the proposed settlement makes Google the only company that can get a blanket license that covers orphan works — that issue has received considerable attention.
But those who are worried about market entry and long-term competition in this arena should also be thinking about another thing competitors need: access to the scans themselves.
The raw scans themselves should not be subject to copyright protection. But if Google hoards the scans, preventing bulk copying (with either legal or technical measures), then competitors will be forced to spend millions to re-scan the very same books in order to compete with Google. This not only is a barrier to entry, but also entails enormous long-term social waste — do we really want a world where every book needs to be re-scanned, over and over, by anyone who wants to enter this market?