Lawrence Lessig on Google Book Search

Lawrence Lessig has produced a typically impressive audiovisual presentation on Google Book Search as fair use He updates Wilde to point out that, in America, all men sue the thing they don't like.

Though I understand exactly why he does it, I began to get uncomfortable with his repeated references to Google's willingness to let copyright owners opt out of Book Search. (I understand why Google does it, too.) If Google's project is fair use, consent or objection should be irrelevant, right?

In a case in which a person selected a particular work to criticize or even just quote, the fact that the person refused an "opt-out" request from the copyright owner shouldn't affect the fair use analysis one jot. Is Lessig prepared to endorse the idea that large-scale digitization, where the transformation (if any) comes from turning individual objects into data for a search engine, should allow opt-out in order to be fair use? That's not a crazy principle by any means, but it is a different principle than that applicable to individual, non-aggregating fair uses.