Dragooning Google into the fight to defend fair-use may be a smart tactical move for the EFF, but that should not impinge on the objective question of whether the Google Books settlement was legal. The privacy and censorship concerns they raised seem orthogonal to the settlement itself, as the concerns would remain whether the settlement was accepted or (as was the case) rejected (e.g. Amazon removing Kindle books from users' libraries).

Why wouldn't the Authors' Guild be willing to offer others the same terms? How would it benefit them to depend on Google? The agreement would have granted a new sort of status to Google, but there is no reason that status would have to remain unique.

Regarding the anti-trust angle, the wiki article cites an MIT paper that concludes the settlement would not violate anti-trust and would in fact generate a consumer surplus. [1]

Forcing Google to fight for fair-use may have been a sound Machiavellian strategy for the EFF (as it resulted in today's ruling), but it's ironic then that the main reason why the settlement was rejected seems to be because it was not strong enough on copyright, as expressed by individual authors' concerns over loss of control, and freeing of orphan works.

[1]: http://www.criterioneconomics.com/Google%20and%20the%20Prope...