The big problem Bethesda is facing is that the product is "defective" - meaning, it does not perform as described. That's what the big deal is surrounding the "DLC option" in the main menu - that's the real issue here. If they cannot get that working, they are facing serious consequences from any number of parties. (As an aside, and in all honesty, I would not be shocked if this code was added to the beta simply to once again stall/distract from this issue)
By setting forth that "patches count as add on content" and "no one buys games for DLC", Pete/Bethesda are trying to carve a future defense strategy in the hopes of mitigating the consequences they will face if this ends poorly.
As some have pointed out - correctly - they could add a single weapon pack as DLC, allow it to be accessed through the DLC menu option, and be off the legal hook (apart from a far more difficult case of comparative industry standards or false advertising) - but to be frank, a move like this would also be accompanied by word of Bethesda's exit strategy from the Sony/PS3 market - either voluntarily, or at Sony's request.
This X 1000. You hit the nail right on the head with this post, dear sir. I think this is EXACTLY what is transpiring.
Look, Bethesda is not made up of morons, and I am sure they have legions of legal representatives preparing an adequate defense from this very strategy to alleviate the s*&tstorm that will certainly be unleashed when they publicly announce that they will no longer be supporting the PS3 with future DLC for Skyrim. I would love to eat crow on this, but right now I have to be practical: the subtle hints in code, the tweets from Hines regarding patches being legitimate DLC, and the public announcements admitting they are diligently working to correct the issue are all elements of an elaborate "smoke and mirror" legal campaign to foster a "hey, we tried, but could not make it happen" declaration that would safely exonerate them from any and all lawsuits that would (and should) establish their culpability.
I am not a lawyer, nor am I involved with business that deals with service; however, if I were, I would make damn sure that, no matter what I did, I would always cover my ass--legally speaking, of course--to convince a jury of my peers that I did everything in my power to follow through on advertised promises. It is just common sense.
None of this means that Dawnguard, Hearthfire, or Dragonborn (if this is the title of the next DLC) is not coming to the PS3; it still might. Nonetheless, before any of you wet your pants with excitement over this new bit of "good" news, understand--and be willing to accept--that it could be all part of an elaborate legal strategy to allow the suits at Bethesda a simple opportunity to slide their greasy behinds out of an extremely tight situation. In other words, it is the lube for the cornhole, and we all had better prepare for the eventual reaming.