What About the Implied, Oral Consent?

A technology trade group has sued MLB and the NFL, claiming that their famous copyright disclaimers go too far and serve to intimidate would-be users of accounts and descriptions of this game:

The Computer and Communications Industry Association (CCIA) complained that the copyright warnings from the National Football League, Major League Baseball, NBC Universal Inc. and other companies trample on fair-use rights that allow consumers to copy portions of copyright works for criticism, commentary, educational and other reasons. CCIA called for an FTC investigation into the
copyright warnings.

The companies use copyright warnings on broadcasts, books and DVDs "not to educate consumers, but to intimidate them," said Ed Black, CCIA's president. "Certain warnings mislead consumers."

I know a bit about copyright law -- and believe me, it is just a bit -- and have thus often assumed that one could easily get past these hyperbolic warnings based on the fair use doctrine. That said, I'm pretty damn dubious about the viability of a cause of action over nothing more than hyperbolic warnings that are more or less akin to those bumper stickers that read "this car protected by Smith & Wesson."