Stan Shebs, you are using a straw man argument.
I did say "worst case", which indicates that I do believe that a floor exists. I also stress "safe", which indicates that I do believe that some things are actually safe. My argument is not, and has never been, that nothing can be considered to be Free. My argument is: in doubt, it is better to be safe than sorry.
I am not willing to crusade in court to triumph on evil "companies" (or alternatively become of martyr) because I have better things to do with my time. Commons is not about judicial battles either. Some individuals might want to play the copyright Russian roulette for the greater good of the Cause, fair enough; this is their business. Commons, on the other hand, is about collecting and making available Free material -- *demonstrably* Free material. -- Rama