The issue will have to be litigated, but… A lawyer once told me that there aren’t really “lawsuits” so much as “factsuits.” The actual judgment in a trial comes more down to the facts at issue than the laws at issue. This sure looks an awful lot like IBM strong arming people into not exercising their rights under the license agreement that IBM chose to distribute under. If it is ever litigated, it isn’t hard to imagine the judgment going against IBM.
I think it’s better to think about what swap is, and the right answer might well be zero. If you try to allocate memory and there isn’t any available, then existing stuff in memory is transferred to the swap file/partition. This is incredibly slow. If there isn’t enough memory or swap available, then at least one process (one hopes the one that made the unfulfillable request for memory) is killed.
If you ever do start swapping memory to disk, your computer will grind to a halt.
Maybe someone will disagree with me, and if someone does I’m curious why, but unless you’re in some sort of very high memory utilization situation, processes being killed is probably easier to deal with than the huge delays caused by swapping.
Edit: Didn’t notice what community this was. Since it’s a webserver, the answer requires some understanding of utilization. You might want to look into swap files rather than swap partitions, since I’m pretty sure they’re easier to resize as conditions change.