Twelve business days after counternotice, why hasn't YouTube re-posted Founding Bloggers' CNN critique?

It's been 12 business days since Founding Bloggers submitted a DMCA counternotice disputing a copyright infringement claim by CNN, and yet the video in question -- which incorporates 1 minute 20 seconds of CNN footage to criticize reporter Susan Roesgen in what is almost certainly a fair use -- remains inaccessible:


Under Section 512(g) of the DMCA, a host maintains its safe harbor from copyright liability if it keeps the allegedly infringing material down for at least 10 business days following receipt of a counternotice. As YouTube describes the process:

After we send out the counter-notification [to the sender of the takedown notice], the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on YouTube. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.

Since CNN has not (as far as I'm aware) sued Founding Bloggers over the video -- which I consider a fairly solid case of fair use -- YouTube faces virtually no risk of liability from re-posting it. And YouTube has recently demonstrated that it is even willing to re-post videos that make fair use of third-party material even before the 10-business-day window has closed.

Why hasn't YouTube re-posted the video? I'm not sure; in my experience they do re-post videos after the 10 days expire, though sometimes it's necessary to prod them with a polite reminder. Until I'm provided evidence to the contrary, I'll consider this a case of simple inadvertance.

And if YouTube does re-post, is that the end of the story? Not necessarily. Even after the re-posting, the target of a DMCA notice can sue the sender of a bogus takedown notice under 17 U.S.C. § 512(f), which provides a cause of action for "knowingly materially misrepresent[ing] under this section...that material or activity is infringing." (This is what happened in Lenz v. Universal.) In theory, CNN could also still sue Founding Bloggers for copyright infringement. But I consider that highly unlikely, for at least three reasons: 1) CNN would almost certainly lose, given the strength of Founding Bloggers' fair use defense; 2) even if CNN won, such a "victory" would actually harm its interests as a news organization that makes fair use of others' video countless times every day; and 3) by failing to go after the numerous others who have re-posted the same video, CNN has signaled that it wants this all to just go away -- quietly. The question remains: will Founding Bloggers let them?