After a long day of testimony on Thursday in the Google Book Settlement case, Judge Denny Chin has gone off to the mountaintop to ponder his decision — which could come in mere days, or weeks, or months, or ….

But meanwhile analysts were working hard on Friday in the effort to guess at how he was leaning in the case. As usual, the smartest observation seems to have come from Michael Cader in his Publisher’s Lunch report. Here’s a significant excerpt:

Though Judge Chin said his questions did not indicate any position, one could certainly infer an inclination on his part that Google’s initial actions were indeed infringement rather than fair use, though that is not at issue in this case. Along with that inference you could detect a suspicion on the judge’s part that under the settlement Google has been rewarded for bad conduct and given what they wanted. When he asked Google’s attorney Daralyn Durie “is there competitive advantage” for Google in their exclusive use of the unclaimed works she wouldn’t answer directly. (She said the “question is has Google engaged in wrongful exclusionary practices.” But that wasn’t the judge’s question.) At another point, the judge said, “I’d surmise that Google wants the orphan books and that is what this is about.”

The afternoon session was like an abbreviated trial in and of itself, with William Cavanaugh from the Department of Justice as the closest thing this hearing had to a prosecutor, followed by answers from the Authors Guild, Google and the AAP.

Though Cavanaugh primarily gave new focus and rhetorical flourish to Justice’s earlier arguments, he did raise a new objection to the settlement’s Attachment A, which stipulates the division of proceeds between publishers and authors and procedures for resolving disputes. “This is essentially rewriting people’s contracts….when this isn’t even about the contractual rights between authors and publishers” Cavanaugh said, noting the substantial gray area over who owns electronic rights to older works. (He didn’t make it clear why this point would be one of concern for Justice in particular.)

One of his main lines of argument, echoing remarks from others earlier in the day, was to the paint the case as one that “involves snippets and nothing more.” By that reasoning, the settlement is an “overreaching commercial agreement” to sell and license books that goes far beyond the scope of the original complaint and “bears no nexus to Google’s fair use defense.” It also gives “benefits to Google that Google could not achieve in the marketplace because of the existence of unclaimed works.”

Cavanaugh practically sneered that authors “did not hire the class representatives to serve as their literary agents for broad opt-out rights” adding later that the agreement “turns copyright law on its head because it eviscerates prior approval of the copyright holder…. It is the right to control one’s work that creates the incentive to produce it.” In another flourish, to support Justice’s suggestion that the settlement should be opt-in rather than opt-out, he asked, “Why won’t people be flocking to this Registry if it truly has as much promise as we’ve heard today.”