Also, the wayback machine is not a non-contentious thing. They're making copies of everything on the internet and then distributing them to the public. It's all content that was freely available to begin with, but as far as I know that has never been tested in court.
You think them saying 'we understand that the web archive is a valuable resource of data which isn't under legal attack, and to best serve the needs of the public we'll ring-fence that resource by spinning it off as a separate legal entity that won't be affected by any legal action that may be taken against us while we fight a (more) contentious battle' would result in less sympathy for them?
How so?
Yes, but that entity is clearly violating the law and is archiving material that is already (by definition) archived by somebody, just not publicly accessible. This strategy is about preserving the more valuable non-alternatively-archived data.
> Even the act of doing it would imply that they expect to lose.
They're clearly violating the law, they've lost already on a similar case, if they don't expect to lose they should fire their counsel.
How useful to the public is it to have it archived but not publicly accessible?
> They're clearly violating the law, they've lost already on a similar case
They're not clearly violating the law, they're doing something where the law isn't established (which is the point), and the other case is subject to appeal.