Reading this excellent post by Nancy Sims, it seems as though Judge Baer, in ruling on motions for summary judgement in the case of Author's Guild v. Hathi Trust may have changed that dilemma. Nancy writes:
Although the judge did say that preservation copying, on its own, may not be transformative, he also said that preservation copying for noncommercial purposes is likely to be fair use.If this ruling holds up, it will have a huge effect on how we go about preserving stuff and how expensive it is. If preservation copying for noncommercial use is fair use, the need to get for libraries and archives to get specific permission to make copies for preservation goes away. There is a great deal of other good stuff in Nancy's post, go read it.