After the Justice Department filed a brief contesting the revised version of the Google Book Settlement last Friday (see the earlier MobyLives report), the Authors Guild has elaborated on the somewhat defensive, somewhat confusing statement issued hastily last Friday — the one saying it disagrees with the DOJ except for the parts it doesn’t disagree with. Also, that it could have pressed its case harder against Google — even though it, uh, sided with Google — and that it might have won, although it might have lost. In the AG’s words:

We disagree with the Justice Department’s reading of the law. At the same time, it’s good to see the Department recognizes the settlement’s many benefits. In our view, it’s best for everyone that out-of-print library books be made available through reasonable, market-based means to readers, students and scholars. Without a settlement, that won’t happen. It’s also best that authors have direct control of the scans that Google has made, with the power to compel Google to hide, display or remove those scans. Without a settlement, authors have no such control. Google’s scanning and use of authors’ books would continue until the lawsuit was finally resolved.

Some authors and authors’ groups have asked why we didn’t press the litigation through to the end. The answer (besides the benefits we saw for authors in creating new markets for out-of-print works), in part, is that copyright litigation is uncertain. Fair use law is complex. One could fill a good-sized law-school classroom with copyright professors who believe that Google’s scanning of your books is a fair use. We don’t agree with that view, but our opinion may not have prevailed. If we’d lost, it would then be open season on scanning of your out-of-print and in-print books. All one would need is a scanner and a friend with a little bit of technical knowledge to start displaying “snippets” at your science fiction, humor, Civil War, or Harry Potter website. All perfectly legal; all without obligation to authors to properly secure those scans. Nothing gets illegal file-sharing going quite so much as millions of unsecured digital works floating around the Internet.

We also could’ve won. That would’ve been sweet. But here’s the thing: copyright victories tend to be Pyrrhic in the digital age. Our settlement negotiations went on with full knowledge of what happened to the music industry. The RIAA (the Recording Industry Association of America) won victory after victory, defeating Napster and Grokster with ground-breaking legal rulings. The RIAA also went after countless individuals, chasing down infringement wherever they could track it down.

It didn’t work. The infringement just moved elsewhere, in unpredictable ways. Nothing seems to drive innovation among copyright pirates as much as a defeat in the courts. That innovation didn’t truly abate until Apple came along with its iPod/iTunes model, making music easily and legally available at a reasonable price. By then, the music industry was devastated.