The issue becomes when you then decide to build something commercial with photos/libraries/etc that have non-commercial/attribution features to them. If I wanted to use this theme to build a Startup, it could become very enticing to companies to target litigation against me. Above and beyond litigation, it could be a PR nightmare if press found out I had built something on top of code that I wasn't allowed to use. Think of all the questions it would raise -- well if he used non-commercial code commercially, what if he had stolen code from other places?
It also lends a sense of credibility to the project/photo/download in that the author thought about the way that his creation was to be used. We used a "free" open source iPhone mockup that seemed perfectly legitimate, and implemented it into one of our client's websites. A few months later, Getty Images had detected that a commercial copyrighted image had been used in the background of the iPhone mockup and sent a litigation letter to our client demanding payment. It was an expensive lesson for us to learn that just because something says it's one thing doesn't mean we can take them at their word.
The worst thing that can happen is going to jail or having to repair whatever damage they claim you have caused. Though it's very unlikely in your case and for this library.
One question though, did I understand it correctly or have a got it wrong:
I can make a free software (free as in speech), and charge you X amount of money for it, but it is within your right to sell it to the next person as long as you keep the freedom to modify etc?
"Free" as in GPL2.
Ripped that out pretty quickly.
If it were the latter, would your entire codebase be considered a derivative work (just as if I took some GPL2 code and refactored it until all the original code was gone)?