DMCA: the light dawns on me

This morning I realized that when Steve Metalitz said that his clients would never sue someone for violating 1201 if they didn't also think there was no fair use, what he meant was, and that would be true because we don't make mistakes, so it's ok that there'd be no defense to 1201 in that case.  The thing is, even if he were right, there are light years of difference between advising a layperson "since your use is obviously fair (and I hope a studio would see things the same way), there's only a small chance of being sued, but if you are sued you will definitely lose because of this other law you violated," and "since your use is obviously fair (and I hope etc.), there's only a small chance of being sued, and a big chance of winning even if that happens."  That's the difference between counternotifying to a takedown and not.