Not only that - if this goes to court, there's a really good chance that the concept of Controlled Digital Lending (i.e., libraries lending out scans backed one-to-one by physical books, which many libraries including Internet Archive have been doing for a long time before this) ends up in court too, and a judge says, what the Internet Archive did is illegal because the whole idea of Controlled Digital Lending was never legal in the first place.
I think it's foolish to trust that the courts (especially the courts today) are going to be sympathetic to fair use and to narrowing copyright.