I don't think you are wrong about the risks to them in fighting the case with what looks to be such abundently clear IPR over the mechanical recording. But, I do think the wider fight about what "should" be the IPR here, is worth fighting.
That advocacy lies in the part of your comment which heads off the "RIAA is bad" fu.
I misplaced the 78 belt for my Pro-ject turntable during a move a few years ago and in the mean time found a copy of New World Symphony that I’ve been wanting to listen to.
Just learned shellac is resin produced by south asian bugs - used to do not only record but food glaze and varnishes.
I have also thought about looking for an old Victrola at an antique market and keeping them to play as a novelty, but it would really be just that.
A cursory glance suggests that BYU asserts the opposite (see Myth #11) https://copyright.byu.edu/copyright-myths.
I’m not saying those defences would actually work. Indeed, my non-lawyer gut-feel is they probably wouldn’t. But now I’m wondering if anyone has ever tried those arguments? And if nobody has ever tried them, I think there remains a chance they might succeed, even if that chance is small. And if they ever did succeed, that would effectively amount to “defend it or lose it”, although the owner technically would not have lost the copyright, just (some of) their ability to sue infringers.
The page you've linked says: "Copyright protection is effectively never lost, unless explicitly given away or the copyright has expired. However, if you do not actively defend your copyright, there may be broader unauthorized uses than you would like."
How on earth did you read that and come to the conclusion that BYU 'asserts (sic) the opposite' ?
There is the doctrine of laches which might be applied in general to an excessive delay in asserting an equitable right, but there is no failure-of-defence loss of copyright under US or generally Berne Convention statutes globally. I've most frequently seen laches raised in the context of patent enforcement. <https://www.law.cornell.edu/wex/laches>
This is rampantly false and misleading information.
If people want to watch a video (assuming they don't pirate) they use the video service that provides them that video.
If people want to use a clip from that video in some other production (fair use scenario applies here) they can't copy it from the video service because of DRM.
From the article
I believe they are arguing that the intent behind the digitization is fair use, as you say, but what I find interesting is they seem to argue that there is no loss of profit from their work, which is a valid point to raise - if this is all hypothetical exceptions can and should be made to the law.
Even if they don't have a case, say the copyright law is very tight and clear and there's no way this can skirt around it - they still can bring it to court, fight it, and lose until they get it overturned by the Supreme Court and they get a special status or the copyright law is amended. This is standard - it's how the 19th amendement was passed I believe, I'll look for a link.
Edit: to clarify, there is no damage to the copyright holders because the medium holding their work is impossible to be used to listen to their work by anyone but experts, like the IA
Edit 1: Here's what I was remembering - it's not an amendment, but it's neat!
https://lithub.com/how-ruth-bader-ginsburg-and-gloria-steine...