> You can, and get laughed out of court, unfortunately.
You meant: unfortunately *for the GPL*?
You are quite convincing about the theory. But in practice Justice is not as deterministic as a computers:
- judges are unreliable human beings with limited technical knowledge
- not everyone is rich and patient enough to actually go all the way to court
- US laws do not apply to the whole world
For a (depressing) reality check look no further than software patents.
Even if you prove that the GPL has a poor legal basis, it is well-known that it is scaring many companies. So it would still serve its purpose anyway. Just like a number of other legal abuses (you do not fight guns with flowers)
> If you are making a binary distribution, it makes a _big_ difference whether protected elements of the include files are substantially included in the resulting binaries, or just referred to during the compilation process.
Whether this is the "right thing" or not, it sounds simple and consistent enough. Do you have examples of the former case?
> The Supreme Court set the basic precedent in this matter more than 110 years ago.
And whether 110-years old decisions all make sense for software is an interesting question.