If the publishers could push the button and kill digitally lending at their whim then there isn't a reason to pretend it was actually alive and well, in any real sense. I believe Machiavelli observed, "War is never avoided, only delayed for the benefit of one participant or another." Librarians have always had a zealous faction that has even frustrated United States Federal Agents, often at the least convenient time for the librarians who did so. Given the money and influence wielded by the publishers, how would the digital librarians fair better in the future? They're better off winning or losing here and letting the natural consequences of the publisher's decisions come to bite them in the ass than building further efforts on a rug the publishers can yank from beneath them at any time.

Precedent for federal cases is typically first set at the appellate level. If you're working your activism through the courts, you usually have to lose before you can win.