Actually I question the veracity of the argument. How can it be a DMCA violation when you take your property and place it on someone else's property and digitally sign where it says - I am giving you this property. That sounds to me like it is binding (although I am not a lawyer.) I have a feeling if Facebook wanted to make coffee mugs with this image (for profit) it would be well within their rights.. We will eventually see legal challenges to this online model and licensing, but to date there have not been any significant judgments to speak of (because it would be very expensive and you would probably lose.)

You have argued many DMCA cases successfully, but I doubt you have argued any where the copyright holder has passed on the rights. Even if it is not binding, Facebook would not want to lose such a case (as it would put their entire business model and website and jeopardy) and I am sure that you would be greeted by the calvary of lawyers that they have available. So I guess you have to decide if it is worth it.

It is not like this image was taken from a personal website. It was willfully given to Facebook and displayed publicly.

That being said, I am using it under the Fair Use Doctrine in supplement to a news story on a public figure, just as CNN (and a hundreds of other news organizations) put up pictures of Ashley Alexandra Dupre from her myspace page (which has almost identical content copyright policies to Facebook) when the story on Elliot Spitzer broke a few months ago.