"Let's pause for a moment to let this sink in." I just had a Holy Moment.

I'm not involved in this battle, so I really have no idea. However, it seems to me that the NY Times Magazine article and Washington Post articles were a shot across the bow of Fox. The PR campaing was not about daring Fox to launch a lawsuit, but emphasizing to Fox that it would cost much in publicity to fight this film. "By suing us, you'll only make us stronger." I think that the producer and lawyers involved would really prefer not to have to fight a lawsuit (which they might lose).

It's more than that. Look at Lessig's post, where he talks about

"... we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first ..."

That goes beyond publicity. Maybe to the realm of "Toss us into the briar patch, please, please, be crazy like you were with Al Franken, give me a slam-dunk case that'll be historic."

Of course, it could all be sophisticated posturing.