People are taking issue with the specific legal test you're proposing, but the fact that you are proposing a legal test as a way of resolving the issue is very

People are taking issue with the specific legal test you're proposing, but the fact that you are proposing a legal test as a way of resolving the issue is very sensible. This is a legal issue, and it should be tested using the law. Unfortunately, or fortunately, this doesn't seem to be the way suspected GPL violations are resolved. More frequently there is a community consensus and a public shaming of the responsible company (e.g. http://news.ycombinator.com/item?id=790316 http://news.ycombinator.com/item?id=790316). The issue then becomes one of how much negative publicity the company is willing to take. IOW although "GPL violations" are described in legal terms, could be legally tested, and refer to legal documents, the issue of illegality takes second place to a fuzzier issue of "fairness", which changes from community to community and project to project.