You're also required to have a good faith belief that the content is actually infringing. Not easy to prove you're not, but it's something.
The EFF's "dancing baby" lawsuit is still going; if they win that will set a stronger precedent for forcing copyright owners to first consider fair use.
These kind of cases make me wonder, what ever happened to the common sense.. The (classical) Roman law was probably the best system the 'makers of law' ever came up to. After that, it only went downhill.
