In the 2600 case (link above), the judge explicitly ruled that it doesn't matter how easy it is to circumvent. The exact words were that a technological measure can be effective "whether or not it is a strong means of protection."
So you are correct... if the judge follows precedent, he'll rule against such an argument.
I think you're not seeing the root of the problem. The "non-commercial" nature of CC licenses is really nothing new - the GPL is often similarly confused by people who don't realize that it doesn't prevent commercial use. Although you have a point that the CC-NC licenses might be confusing the issue (guilt by association) enough other commerce-friendly licenses have had the same problem that I think the issue goes deeper than that.
I think you are fighting against a propaganda machine, in the form of media companies that purvey anything that's not "all right reserved" as "non-commercial". For decades, increasingly lop-sided copyright law and the propaganda surrounding it has persuaded people to believe that all free licenses are non-commercial.
I don't think that forking or creating your own license would do help - I think you'll end up fighting the exact same battle.
The purpose of copyright law is to promote progress, right? Without absolute control over every conceivable image, how will religious groups be encouraged to build more mysterious stone monuments?
Think about it - the sphynx is 5000 years old, stonehenge is 4500 years old, and the moai statues of Easter Island are only 500 years old. While these once were obviously commonly built, there haven't been any mysterious stone monuments built in centuries! It's quite obvious that the lack of copyright is what's preventing more of these sort of things from being created - just like it's the lack of pirates that's causing global warming!
We must encourage groups like to EHO to make these claims - it's the only way to get people to contribute to our culture!
It's not only incorrect to treat copyright as property, it's downright dangerous. The absurdities we see everyday from copyright maximalists are an example of what happens when you think of copyright as a property right.
Sheldon Richman wrote a very compelling article about why this is. I strongly urge everybody to read it, as it succinctly illustrates the point. It's telling that a year after he wrote it, the article comments contain no further refutation from those who disagree with him than "nuh-uh!"