Timing issues
Google Book Search (Sept.2005 blog post here) and the telco-as-speaker argument (this week's blog post here) have something in common — they're both being shaped by the passage of time.
Google's fair use claim is deeply contextual. If a marketplace for licensing books for online indexing emerges, then (arguably) Google's failure to use that market cuts against its fair use defense. (This is like the Texaco-copies-of-scientific-articles case.)
And the more time that the telcos have to act like speakers (remember AT&T Yahoo! High Speed Internet U-verse Enabled?) the harder the arguments against their First Amendment claims.
So, from the nethead perspective, it would be good to have these arguments now rather than later. The more time that goes by, the weaker these arguments will get.
There's a bigger point here — both the argument that what Google is doing is copyright infringement, and the argument that any net neutrality rule is unconstitutional, are made by incumbents who argue they've made great private investments that need to be rewarded. They're both about wanting to ensure that barriers to entry are erected to new business models that threaten the incumbents' revenue streams. Both sets of incumbents need only bide their time and drag their heels in order for their reliance interests (or investment interests) to become so large that they seem persuasive to courts.
It doesn't seem right — but incumbents have an advantage when it comes to just standing still and waiting for the world to come around to their point of view.