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== The GPL in court ==
 
== The GPL in court ==
A key dispute related to the GPL is whether or not non-GPL software can [[library linking|dynamically link]] to GPL libraries. The GPL is clear in requiring that all [[derivative work]]s of code under the GPL must themselves be under the GPL. However, it is not clear whether an executable that dynamically links to a GPL code should be considered a derivative work (see [[Copyleft#Strong and weak copyleft|Weak Copyleft]]). The free/open-source software community is split on this issue. The FSF asserts that such an executable is indeed a derivative work if the executable and GPL code "make function calls to each other and share data structures,"<ref>[http://www.gnu.org/licenses/gpl-faq.html#GPLPluginsInNF Can I apply the GPL when writing a plug-in for a non-free program?], GPL FAQ, Free Software Foundation.</ref> with others agreeing,<ref>Jerry Epplin, [http://archive.is/20120529011544/www.linuxdevices.com/articles/AT9161119242.html Using GPL software in embedded applications], ''LinuxDevices.com'' (March 4, 2001).</ref> while some (e.g. [[Linus Torvalds]]) agree that dynamic linking can create derived works but disagree over the circumstances.<ref>Linus Torvalds, [http://lkml.org/lkml/2006/12/17/79 GPL only modules], ''linux-kernel'' mailing list (December 17, 2006).</ref> On the other hand, some experts have argued that the question is still open: one [[Novell]] lawyer has written that dynamic linking not being derivative "makes sense" but is not "clear-cut,"<ref>Matt Asay, [http://www.novell.com/coolsolutions/feature/1532.html The GPL: Understanding the License that Governs Linux], ''Novell Cool Solutions Feature'' (Jan 16. 2004).</ref> and [[Lawrence Rosen]] has claimed that a court of law would "probably" exclude dynamic linking from derivative works although "there are also good arguments" on the other side and "the outcome is not clear"<ref>Lawrence Rosen, [http://www.linuxjournal.com/article/6366 Derivative Works], ''Linux Journal'' (Jan 1, 2003).</ref> (on a later occasion, he argued that "market-based" factors are more important than the linking technique<ref>Lawrence Rosen, [http://www.rosenlaw.com/lj19.htm Derivative Works], ''rosenlaw.com'' (May 25, 2004)</ref>). This is ultimately a question not of the GPL ''per se'', but of how copyright law defines derivative works. In ''[[Galoob v. Nintendo]]'' the [[Ninth Circuit Court of Appeals]] defined a derivative work as having "'form' or permanence" and noted that "the infringing work must incorporate a portion of the copyrighted work in some form," but there have been no clear court decisions to resolve this particular conflict.
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A key dispute related to the GPL is whether or not non-GPL software can [[library linking|dynamically link]] to GPL libraries. The GPL is clear in requiring that all [[derivative work]]s of code under the GPL must themselves be under the GPL. However, it is not clear whether an executable that dynamically links to a GPL code should be considered a derivative work (see [[Copyleft#Strong and weak copyleft|Weak Copyleft]]). The free/open-source software community is split on this issue. The FSF asserts that such an executable is indeed a derivative work if the executable and GPL code "make function calls to each other and share data structures,"<ref>[http://www.gnu.org/licenses/gpl-faq.html#GPLPluginsInNF Can I apply the GPL when writing a plug-in for a non-free program?], GPL FAQ, Free Software Foundation.</ref> with others agreeing,<ref>Jerry Epplin, [http://www.linuxdevices.com/articles/AT9161119242.html Using GPL software in embedded applications], ''LinuxDevices.com'' (March 4, 2001).</ref> while some (e.g. [[Linus Torvalds]]) agree that dynamic linking can create derived works but disagree over the circumstances.<ref>Linus Torvalds, [http://lkml.org/lkml/2006/12/17/79 GPL only modules], ''linux-kernel'' mailing list (December 17, 2006).</ref> On the other hand, some experts have argued that the question is still open: one [[Novell]] lawyer has written that dynamic linking not being derivative "makes sense" but is not "clear-cut,"<ref>Matt Asay, [http://www.novell.com/coolsolutions/feature/1532.html The GPL: Understanding the License that Governs Linux], ''Novell Cool Solutions Feature'' (Jan 16. 2004).</ref> and [[Lawrence Rosen]] has claimed that a court of law would "probably" exclude dynamic linking from derivative works although "there are also good arguments" on the other side and "the outcome is not clear"<ref>Lawrence Rosen, [http://www.linuxjournal.com/article/6366 Derivative Works], ''Linux Journal'' (Jan 1, 2003).</ref> (on a later occasion, he argued that "market-based" factors are more important than the linking technique<ref>Lawrence Rosen, [http://www.rosenlaw.com/lj19.htm Derivative Works], ''rosenlaw.com'' (May 25, 2004)</ref>). This is ultimately a question not of the GPL ''per se'', but of how copyright law defines derivative works. In ''[[Galoob v. Nintendo]]'' the [[Ninth Circuit Court of Appeals]] defined a derivative work as having "'form' or permanence" and noted that "the infringing work must incorporate a portion of the copyrighted work in some form," but there have been no clear court decisions to resolve this particular conflict.
   
 
Since there is no record of anyone circumventing the GPL by dynamic linking and contesting when threatened with lawsuits by the copyright holder, the restriction appears ''[[de facto]]'' enforceable even if not yet proven ''[[de jure]]''.{{Or|date=November 2008}}
 
Since there is no record of anyone circumventing the GPL by dynamic linking and contesting when threatened with lawsuits by the copyright holder, the restriction appears ''[[de facto]]'' enforceable even if not yet proven ''[[de jure]]''.{{Or|date=November 2008}}

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