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While that's true in a sense that's like saying "If I murder someone, I won't know if it's illegal under it's tried in a court of law." You don't, but if I walk up to someone on the street and shoot 'em I can be pretty sure it's illegal. Certain, no, as certainty is rarely theoretically possible but I can be darn close to certain. I'm not suggesting this license case is QUITE that clear-cut, but it's close.
The contract is pretty clear. It explicitly prohibits profit and says nothing about commercial activity. I understand that you're trying to protect what you believe were the intentions of the licensors at the time but while those may be relevant in certain forums they're not relevant in a legal forum provided the signing parties were in their right minds, not being deceived, not signing away inalienable rights, etc etc. I also have to say that given that you just said you don't think the issue is settled you're pretty strident that commercial activity in a DIKU is illegal.
And beyond all that, it's never going to get to court as the license holders suffer no damage from third parties generating revenue from DIKU. I mean, the DIKU guys clearly had no expectation of value from DIKU. As you say, they intended it to be used for free, etc etc.
--matt
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