Quoting Ben Reser (b...@reser.org):

> > Anyway, that's an affirmative defence:  It doesn't prevent litigation.
> 
> I did say likely.

Specifically, you said no such licence was likely to 'be in front of a
judge', without saying exactly why you believed this.  

In my experience, copyright infringement litigation can arise (come in
front of a judge) in quite a number of ways and for a number of reasons, 
even where defendant thinks he/she might have a useful legal defence
such as estoppel -- completely aside from any doubts one might entertain
about licence stewards' opinions about copyrightability qualifying in
the latter category.

Your Mileage May Differ.[tm]

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