Edward,

Thanks for your comments. As to fair use, I don't believe it was an oversight, no. That's just the DMCA for you.

As for the bad faith element, I don't recall off-hand any cases discussing the interplay of facts like those you proposed. YouTube wouldn't traditionally make a determination whether something was fair use but if YouTube had for some reason done so and communicated it to the rightholder (before the takedown notice was filed) I would think that fact would be relevant to the user's allegation of bad faith.

-- BrianS - 20 May 2010