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This will fail very quickly. The licence that project owners publish with their code on Github applies to third parties who wish to use the code, but does not a

This will fail very quickly. The licence that project owners publish with their code on Github applies to third parties who wish to use the code, but does not apply to Github. Authors who publish their code on Github grant Github a licence under the Github Terms: https://docs.github.com/en/site-policy/github-terms/github-terms-of-service https://docs.github.com/en/site-policy/github-terms/github-t... Specifically, sections D.4 to D.7 grant Github the right to "to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case Your Content is something like music or video."

acdha 4y ago
I don’t see that being “quickly” - they’d have to get a judge to agree that passing your code off without attribution for other people to use as their own work is a normal service improvement. Given that it’s a separate feature with different billing terms, I’m skeptical that it’s anywhere near the given that you’re portraying it as.
- deanjones 4y ago
  "Without attribution" is a condition of the licence that applies to third-parties. It is not a condition of the licence that applies to Github.
  - TAForObvReasons 4y ago
    It's worth reading the passage in its entirety and how a court would interpret it: > We need the legal right to do things like host Your Content, publish it, and share it > This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content outside of our provision of the Service, except that as part of the right to archive Your Content, GitHub may permit our partners to store and archive Your Content in public repositories in connection with the GitHub Arctic Code Vault and GitHub Archive Program. If Copilot is straight-up reproducing work, and it is a service that users have to pay to use, then it seems like Copilot is "sell[ing] your content" and thus the license does not apply. More generally, a court is likely to look at the plain English summary and judge. Copilot is not an integral part of "the service" as developers understood it before Copilot existed.
    - deanjones 4y ago
      "as necessary to provide the Service, including improving the Service over time."
      - lamontcg 4y ago
        You're trying to play desperate semantic games. "This license does not grant GitHub the right to sell Your Content" is unambiguously clear.
        deanjones 4y ago
        "desperate semantic games" is actually a reasonable description of the legal process :-) I'm not sure I agree that anything expressed in a legal contract using natural language is "unambiguously clear". MS / Github's expensively-attired lawyers will not doubt forcefully argue that they are not selling the YOUR content, but a service based on a model generated from a large collection of content, which they have been granted a licence to "parse it into a search index or otherwise analyze it on our servers". There may even be in-court discussion of generalization, which will be exciting.
sigzero 4y ago
If that is pretty much verbatim under their terms, then yes the lawsuit is going nowhere.
mldq 4y ago
This is the standard content display license that everyone uses. Even in your quoted text I don't see any hint that snippets can be shown without attribution or the code license. It also says they can't sell the code, which CoPilot is doing. Also, in a very high number of cases it isn't the author who uploads. Repeating your line of argumentation (which occurs in every CoPilot thread) does not make it true.
- deanjones 4y ago
  It's irrelevant whether it's standard or not. Again, the terms in the code licence (including attribution) do not apply to Github, because that is not the licence under which they are using the code. You grant them a separate licence when you start using their service. If someone who isn't the author has uploaded code which they do not have a right to copy, they are liable, not Github. This is also clear from the Github Terms: "If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post" It's almost as if these highly paid lawyers know what they're doing.
  - lpolk 4y ago
    You grant them a content display license, not a general code license. > It's almost as if these highly paid lawyers know what they're doing. Sure, they wrote the content display license long before CoPilot even existed. Any court will see the intent and not interpret these terms as a code re-licensing.
    - deanjones 4y ago
      There is no such thing as a "content display licence" or "general code licence". There is copyright (literally, the right to make copies) which broadly lies with the author, who can then grant other parties a licence to copy their content. I'm afraid I do not believe your legal expertise is so extensive that you are able to accurately predict the judgement of "any court".
  - xigoi 4y ago
    > You grant them a separate licence when you start using their service. And that license explicitly states that it doesn't give them the right to sell your code.
klabb3 4y ago
> Authors who publish their code on Github grant Github a licence under the Github Terms: https://docs.github.com/en/site-policy/github-terms/github-t https://docs.github.com/en/site-policy/github-terms/github-t... This sounds unenforceable in the general case. How could github know whether someone pushes their own code or not? Is it a license violation to push someone's FOSS code to github because the author didn't sign up with GH?
- deanjones 4y ago
  > Is it a license violation to push someone's FOSS code to github because the author didn't sign up with GH? It depends on the licence. It's very much enforceable that companies who provide content publishing platforms will indemnify themselves against people publishing content to which they do not have an appropriate licence.
saurik 4y ago
So, it isn't clear to me which of these clauses you are citing grants them the forced right to "Copilot" (which I'm using as a verb to avoid defining what stage of production we are talking about) that wasn't granted by the license of the code, but let's assume for a moment that you are correct: that just means that GitHub as a service makes no sense, right? Like, there are a ton of people using GitHub to develop using code I've published in the past... code which is under various of these example licenses, and which I've never myself (as the copyright holder) published to GitHub (and, in fact, would never as I despise GitHub). There are also a number of very popular projects--such as the Linux kernel--which people no only upload to GitHub but which have official mirrors of on GitHub where no party even owns the copyright in order to agree to these terms of service. Meaning, if you are correct, GitHub is often being used illegal and a ton of the source code they are training against wasn't legally provided to them in the first place.
- deanjones 4y ago
  Section D.3: "If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post". A lawsuit against Github has no standing for the scenario you suggest, because Github is not at fault.
  - saurik 4y ago
    Ok, so: "that just means that GitHub as a service makes no sense, right?" Like, I feel you simply ignored the core complaint of my comment so you could instead note something about GitHub's potential liability (a thought process I didn't even bring up, though I can see how many you decided to bend my final comment into somehow being relevant for that thought). Like, are you simply ceding then that a ridiculous amount of the content on GitHub -- including major projects such as Linux -- are not allowed to be posted to GitHub?
maxloh 4y ago
How about codebase that were uploaded to GitHub, by someone other than the original copyright owner? e.g. I can clone the GNU codebase and publish it to GitHub. Clearly I don't own the code and do not have any rights to grant GitHub a license.
- deanjones 4y ago
  Section D.3: "If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post". A lawsuit against Github has no standing for the scenario you suggest, because Github is not at fault.
  - maxloh 4y ago
    Does that mean if anyone posted my open source project to GitHub, I can fill a DCMA takedown request regardless of the license I chose?
    - deanjones 4y ago
      Well, I don't think it's a DCMA issue, but it does very much depend on the licence you have chosen. That's what the licence is for, to allow people to use the code that you have copyright of, and to define what they are / are not allowed to do with it.

acdha 4y ago

I don’t see that being “quickly” - they’d have to get a judge to agree that passing your code off without attribution for other people to use as their own work is a normal service improvement. Given that it’s a separate feature with different billing terms, I’m skeptical that it’s anywhere near the given that you’re portraying it as.

deanjones 4y ago
"Without attribution" is a condition of the licence that applies to third-parties. It is not a condition of the licence that applies to Github.
- TAForObvReasons 4y ago
  It's worth reading the passage in its entirety and how a court would interpret it: > We need the legal right to do things like host Your Content, publish it, and share it > This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content outside of our provision of the Service, except that as part of the right to archive Your Content, GitHub may permit our partners to store and archive Your Content in public repositories in connection with the GitHub Arctic Code Vault and GitHub Archive Program. If Copilot is straight-up reproducing work, and it is a service that users have to pay to use, then it seems like Copilot is "sell[ing] your content" and thus the license does not apply. More generally, a court is likely to look at the plain English summary and judge. Copilot is not an integral part of "the service" as developers understood it before Copilot existed.
  - deanjones 4y ago
    "as necessary to provide the Service, including improving the Service over time."
    - lamontcg 4y ago
      You're trying to play desperate semantic games. "This license does not grant GitHub the right to sell Your Content" is unambiguously clear.
      - deanjones 4y ago
        "desperate semantic games" is actually a reasonable description of the legal process :-) I'm not sure I agree that anything expressed in a legal contract using natural language is "unambiguously clear". MS / Github's expensively-attired lawyers will not doubt forcefully argue that they are not selling the YOUR content, but a service based on a model generated from a large collection of content, which they have been granted a licence to "parse it into a search index or otherwise analyze it on our servers". There may even be in-court discussion of generalization, which will be exciting.

sigzero 4y ago

If that is pretty much verbatim under their terms, then yes the lawsuit is going nowhere.

mldq 4y ago

This is the standard content display license that everyone uses. Even in your quoted text I don't see any hint that snippets can be shown without attribution or the code license. It also says they can't sell the code, which CoPilot is doing. Also, in a very high number of cases it isn't the author who uploads. Repeating your line of argumentation (which occurs in every CoPilot thread) does not make it true.

deanjones 4y ago
It's irrelevant whether it's standard or not. Again, the terms in the code licence (including attribution) do not apply to Github, because that is not the licence under which they are using the code. You grant them a separate licence when you start using their service. If someone who isn't the author has uploaded code which they do not have a right to copy, they are liable, not Github. This is also clear from the Github Terms: "If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post" It's almost as if these highly paid lawyers know what they're doing.
- lpolk 4y ago
  You grant them a content display license, not a general code license. > It's almost as if these highly paid lawyers know what they're doing. Sure, they wrote the content display license long before CoPilot even existed. Any court will see the intent and not interpret these terms as a code re-licensing.
  - deanjones 4y ago
    There is no such thing as a "content display licence" or "general code licence". There is copyright (literally, the right to make copies) which broadly lies with the author, who can then grant other parties a licence to copy their content. I'm afraid I do not believe your legal expertise is so extensive that you are able to accurately predict the judgement of "any court".
- xigoi 4y ago
  > You grant them a separate licence when you start using their service. And that license explicitly states that it doesn't give them the right to sell your code.

klabb3 4y ago

> Authors who publish their code on Github grant Github a licence under the Github Terms: https://docs.github.com/en/site-policy/github-terms/github-t https://docs.github.com/en/site-policy/github-terms/github-t... This sounds unenforceable in the general case. How could github know whether someone pushes their own code or not? Is it a license violation to push someone's FOSS code to github because the author didn't sign up with GH?

deanjones 4y ago
> Is it a license violation to push someone's FOSS code to github because the author didn't sign up with GH? It depends on the licence. It's very much enforceable that companies who provide content publishing platforms will indemnify themselves against people publishing content to which they do not have an appropriate licence.

saurik 4y ago

So, it isn't clear to me which of these clauses you are citing grants them the forced right to "Copilot" (which I'm using as a verb to avoid defining what stage of production we are talking about) that wasn't granted by the license of the code, but let's assume for a moment that you are correct: that just means that GitHub as a service makes no sense, right? Like, there are a ton of people using GitHub to develop using code I've published in the past... code which is under various of these example licenses, and which I've never myself (as the copyright holder) published to GitHub (and, in fact, would never as I despise GitHub). There are also a number of very popular projects--such as the Linux kernel--which people no only upload to GitHub but which have official mirrors of on GitHub where no party even owns the copyright in order to agree to these terms of service. Meaning, if you are correct, GitHub is often being used illegal and a ton of the source code they are training against wasn't legally provided to them in the first place.

deanjones 4y ago
Section D.3: "If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post". A lawsuit against Github has no standing for the scenario you suggest, because Github is not at fault.
- saurik 4y ago
  Ok, so: "that just means that GitHub as a service makes no sense, right?" Like, I feel you simply ignored the core complaint of my comment so you could instead note something about GitHub's potential liability (a thought process I didn't even bring up, though I can see how many you decided to bend my final comment into somehow being relevant for that thought). Like, are you simply ceding then that a ridiculous amount of the content on GitHub -- including major projects such as Linux -- are not allowed to be posted to GitHub?

maxloh 4y ago

How about codebase that were uploaded to GitHub, by someone other than the original copyright owner? e.g. I can clone the GNU codebase and publish it to GitHub. Clearly I don't own the code and do not have any rights to grant GitHub a license.

deanjones 4y ago
Section D.3: "If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post". A lawsuit against Github has no standing for the scenario you suggest, because Github is not at fault.
- maxloh 4y ago
  Does that mean if anyone posted my open source project to GitHub, I can fill a DCMA takedown request regardless of the license I chose?
  - deanjones 4y ago
    Well, I don't think it's a DCMA issue, but it does very much depend on the licence you have chosen. That's what the licence is for, to allow people to use the code that you have copyright of, and to define what they are / are not allowed to do with it.