That's only true if your only options are a lawsuit or sitting on your hands. Linus and Greg explain how they do a bunch of other stuff that ends up actually working. So that's a false dichotomy.
And it's not even true that there's no downside to losing. You may get a precedent settled that actually invalidates enforcing the license. Then you've screwed up your own enforcement and everyone else's.
> You may get a precedent settled that actually invalidates enforcing the license.
Which means the license is unenforcible and a new legally enforceable license is needed.
> Then you've screwed up your own enforcement and everyone else's
Nope, they would have been screwed already, they just didn’t know it yet. And fewer future people would end up screwed as new licenses would be created in the aftermath.
Untested enforceability is not better than tested and confirmed un-enforceability.
Or to use an absurd example in an even more absurd context, it’s better to open the box and know your cat is dead than to leave the box closed and believe it might still be alive.
>Untested enforceability is not better than tested and confirmed un-enforceability.
This is addressed by Linus directly and it's simply not true. That the license can be enforced without testing in court is evidenced by the fact that they are being able to enforce it without lawsuits. If you get a legal precedent that somehow says the opposite you are now deeply screwed. Courts are fickle beasts. You now get to spend a bunch of time/money trying to reverse that, or even worse, launch the worlds largest open-source relicensing effort. For the kernel that's basically impossible. You'd basically destroy copyleft completely.
You're right, I hadn't considered the potential ramifications for the Linux kernel specifically, and how variably educated court judges can actually be.
And it's not even true that there's no downside to losing. You may get a precedent settled that actually invalidates enforcing the license. Then you've screwed up your own enforcement and everyone else's.