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Doesn't everyone who uploads code to a public repo give Microsoft/GitHub a license to (strike ~redistribute~) reproduce that code? If they didn't, GitHub itsel

Doesn't everyone who uploads code to a public repo give Microsoft/GitHub a license to (strike ~redistribute~) reproduce that code? If they didn't, GitHub itself would be violating copyright every time someone browsed the repo. And copilot appears to be a part of GitHub. https://copilot.github.com/ https://copilot.github.com/ So why wouldn't copilot itself be covered by that license? (Certainly people using copilot would not. Let the user beware.) Edit: downvoted to death but the top reply shows that it's true. An inconvenient truth, I suppose.

emrah 5y ago
I'm thinking it's not so much what is legal for Copilot to do with code chunks from GPL'ed code, but what it means for end users (i.e. developers at for-profit companies) to incorporate those chunks into commercial products
moralestapia 5y ago
No. Edit: Sorry downvoters, whether you like it or not, you don't understand the terminology. You're confusing reproduction with redistribution.
- leereeves 5y ago
  I'm not a lawyer so it's entirely possible I used the wrong term. Thank you for clarifying below. Using the terms as you explained them below, I meant that Microsoft/GitHub has permission to reproduce the code so why wouldn't that extend to copilot?
  - moralestapia 5y ago
    Reproduction is enough to cover the first part of your use case. This is mentioned on Github's TOS. For the latter you would need redistribution as it is going into a different product, for which you claim ownership, and with possible modifications/adaptations (this would depend on the rights granted by the license). Nowhere on Github's TOS is the word or concept of redistribution referenced. So, the answer to your original question is "no". Edit: leereeves modified its comment after I wrote this, so it may not make much sense but you can figure out the point. Best!
    - dahart 5y ago
      I’m not sure this is a completely fair take, I think the original question is legitimate and relevant. Github’s TOS does in fact ask the contributor to grant a license for GH to host and serve their code from GH servers. That is both reproduction and distribution as defined by copyright law, and copyright covers both of those at the same time https://www.copyright.gov/what-is-copyright/ https://www.copyright.gov/what-is-copyright/ (Edit and BTW GH calls out their ‘distribution’ in section D.4 of their TOS explicitly, but without using the word “distribute”. They say you grant them the right to “publish” and “share” code you upload, which means “distribute” under copyright law. They also imply that by spelling out the terms under which they do not “distribute”, which is anytime the content is used outside of GitHub’s services.) I don’t think you’re correct that the term “redistribution” means either going into another product, nor that it implies a claim of ownership. Putting works into another product is sometimes known as making a derivative work, while “redistributing” is quite commonly used to mean copy-and-distribute as-is. Redistribution can happen via license as well, it requires permission by the copyright owner, but does not imply the redistributor is (or is claiming to be) the copyright owner.
      - moralestapia 5y ago
        >I think the original question is legitimate and relevant You didn't see the original question, it was edited, so we cannot discuss that further. "[...] which means “distribute” under copyright law" <-- Citation needed please, because I don't think that's correct. From the site you linked: "Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending." What I seem to grasp about the difference between reproducing and redistributing is that it has to do with the concept of "transfer of ownership". Also derivate work and redistribution are not mutually exclusive. The moment you create a new thing and start distributing it (even if you do not modify it), you become the de facto owner of that new product, and copyright law is trying to limit the extent of the rights that apply there. So, in the case of music, it's different thing to play (reproduce) a song than to create a new album with your favorite artists that happens to include that particular song (redistribution).
  - blooalien 5y ago
    Are they displaying the license under which said code is licensed when they display a chunk of licensed code? If not, then they're violating the terms of most licenses (except pure public domain, or other similar licenses which don't have any such requirements attached). The use of licensed code in other projects must be done under the terms of that license or you aren't legally (under copyright law) allowed to use the code.
    - leereeves 5y ago
      As I said, I'm not a lawyer, but I believe they're displaying it under the terms of the GitHub ToS, using rights granted to them when the project is uploaded to GitHub, not under the terms of the license the project uses for everyone else.
    - dahart 5y ago
      > Are they displaying the license under which said code is licensed when they display a chunk of licensed code? If not, then they’re violating the terms The GitHub TOS is a license that is separate from the license in the code. It is legal and common for an author to license the same code multiple ways (and the licenses do not have to agree with each other). By agreeing to GitHub’s TOS and uploading code to GH servers, people are licensing GH to display the code, because the license agreement says so explicitly. This could be problematic if someone uploads code they don’t have the rights to upload, but then the violation is the uploader’s, and not GitHub’s. Additionally, GH has a provision for already licensed code in section D.6: “6. Contributions Under Repository License “Whenever you add Content to a repository containing notice of a license, you license that Content under the same terms, and you agree that you have the right to license that Content under those terms. If you have a separate agreement to license that Content under different terms, such as a contributor license agreement, that agreement will supersede. “Isn't this just how it works already? Yep. This is widely accepted as the norm in the open-source community; it's commonly referred to by the shorthand "inbound=outbound". We're just making it explicit.” https://docs.github.com/en/github/site-policy/github-terms-of-service#6-contributions-under-repository-license https://docs.github.com/en/github/site-policy/github-terms-o...
- dahart 5y ago
  > You're confusing reproduction with redistribution. It seems like you're confused; GitHub's terms require users to grant both of those. Copyright law also covers both.
  - moralestapia 5y ago
    >GitHub's terms require users to grant both of those Last time I checked (about an hour ago), that wasn't true. Feel free to provide evidence to support your argument.
    - dahart 5y ago
      > Last time I checked (about an hour ago), that wasn't true. Feel free to provide evidence to support your argument. https://docs.github.com/en/github/site-policy/github-terms-of-service#a-definitions https://docs.github.com/en/github/site-policy/github-terms-o... "publish" and "share" mean redistribution. "Store" and "copy" mean reproduce.
      - moralestapia 5y ago
        >"publish" and "share" mean redistribution No. That's something you believe, but it's not necessarily true. Check here, https://copyrightalliance.org/faqs/what-rights-copyright-owners-have/ https://copyrightalliance.org/faqs/what-rights-copyright-own... Again, distribution has to do with a transfer of ownership. In layman terms, Github can show your code to others but it cannot give (as in ownership) your code to them. It's a bit tricky here since on the web showing something literally means making a copy at some point, but try to view things under the light of "who owns what" and it's a bit easier to grasp. If you browse through someone's repository, it's pretty clear who the owner of that code is, if a program gives you a chunk of code that it "got from somewhere" there's definitely some sort of change of ownership operation going on; which in this case is interesting, as it went from attributed to someone to missing/unknown.
        dahart 5y ago
        > Again, distribution has to do with a transfer of ownership You're mixing sub-threads here, but you're still confused. Distribution is a transfer of ownership of a copy, it does not grant copyrights or ownership of the work. You can buy a book that was distributed, and that does not give you the right to make copies of the book. > Github can show your code to others but it cannot give (as in ownership) your code to them. In the digital world, showing is "distributing", and copyright law is clear about this. You should perhaps read the definitions that are in the copyright law itself, and try to understand them: "“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. To perform or display a work “publicly” means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. https://www.copyright.gov/title17/title17.pdf https://www.copyright.gov/title17/title17.pdf
glitchc 5y ago
There's more than redistribution happening here. Co-pilot is providing a value-add service where the open-source code is an input and the output is a service. As it happens, the service is actually regurgitating the code at this point, but it's important to consider that even if it didn't regurgitate the code verbatim, the fact that the service is making use of that code to provide a value-add means the code is a crucial input to the value proposition. Would Co-pilot be able to provide the value-add without the source? Likely not. Couple that with the fact, that presumably at some point in the future, Co-pilot will come attached with a subscription model (otherwise why do it in the first place?), and we have the makings of a product that is commercially infringing on copyright left, right and center.
krono 5y ago
From the GH TOS: > 4. License Grant to Us > 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 https://docs.github.com/en/github/site-policy/github-terms-of-service#4-license-grant-to-us https://docs.github.com/en/github/site-policy/github-terms-o... . > 5. License Grant to Other Users > If you set your pages and repositories to be viewed publicly, you grant each User of GitHub a nonexclusive, worldwide license to use, display, and perform Your Content through the GitHub Service and to reproduce Your Content solely on GitHub as permitted through GitHub's functionality (for example, through forking). > You may grant further rights if you adopt a license. https://docs.github.com/en/github/site-policy/github-terms-of-service#5-license-grant-to-other-users https://docs.github.com/en/github/site-policy/github-terms-o... . So yes, but only within GitHub. . Edit: > A. Definitions > The “Service” refers to the applications, software, products, and services provided by GitHub, including any Beta Previews. https://docs.github.com/en/github/site-policy/github-terms-of-service#a-definitions https://docs.github.com/en/github/site-policy/github-terms-o... Sneaky bastards. . Edit: Formatting
ben0x539 5y ago
Not everything on Github was uploaded by the copyright holders. Often enough, it's uploaded by people who only have access to it under an open source license, so Github cannot in general squeeze additional license terms out of the uploader at that point.
- leereeves 5y ago
  That's a good point; what is their obligation/liability in that case?
- LdSGSgvupDV 5y ago
  Yap. Some of them are mirrors uploaded by unknown/non-official uploaders. I guest next step github would require cell phone to sign up to make sure who you are and get the rights to profit.
dahart 5y ago
Yes (as you now know), GitHub’s terms require users uploading code to agree to GitHub being able to both redistribute (“publish”) and reproduce (“copy” / “store”) their code. The “Terms” link on the copilot page goes directly to GitHub’s TOS, so yes the terms are one and the same. This question is interesting and I’ll try to help turn the downvotes around, but it might be too late. Anyway, when users agree to allow their code to be “published” by GitHub, they are allowing it to be both copied and distributed. The TOS also says (note the indexing/analysis comment) “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.” The part where GitHub might have trouble (I speculate) is that their TOS doesn’t discuss derivative works, and the input code to copilot could have licensing terms on derivative works that get scrubbed out by copilot. OTOH, if copilot were to guarantee that a chunk of code never resembled one of the original inputs it may be legal to create derivative works from samples under fair use.

emrah 5y ago

I'm thinking it's not so much what is legal for Copilot to do with code chunks from GPL'ed code, but what it means for end users (i.e. developers at for-profit companies) to incorporate those chunks into commercial products

moralestapia 5y ago

No. Edit: Sorry downvoters, whether you like it or not, you don't understand the terminology. You're confusing reproduction with redistribution.

leereeves 5y ago
I'm not a lawyer so it's entirely possible I used the wrong term. Thank you for clarifying below. Using the terms as you explained them below, I meant that Microsoft/GitHub has permission to reproduce the code so why wouldn't that extend to copilot?
- moralestapia 5y ago
  Reproduction is enough to cover the first part of your use case. This is mentioned on Github's TOS. For the latter you would need redistribution as it is going into a different product, for which you claim ownership, and with possible modifications/adaptations (this would depend on the rights granted by the license). Nowhere on Github's TOS is the word or concept of redistribution referenced. So, the answer to your original question is "no". Edit: leereeves modified its comment after I wrote this, so it may not make much sense but you can figure out the point. Best!
  - dahart 5y ago
    I’m not sure this is a completely fair take, I think the original question is legitimate and relevant. Github’s TOS does in fact ask the contributor to grant a license for GH to host and serve their code from GH servers. That is both reproduction and distribution as defined by copyright law, and copyright covers both of those at the same time https://www.copyright.gov/what-is-copyright/ https://www.copyright.gov/what-is-copyright/ (Edit and BTW GH calls out their ‘distribution’ in section D.4 of their TOS explicitly, but without using the word “distribute”. They say you grant them the right to “publish” and “share” code you upload, which means “distribute” under copyright law. They also imply that by spelling out the terms under which they do not “distribute”, which is anytime the content is used outside of GitHub’s services.) I don’t think you’re correct that the term “redistribution” means either going into another product, nor that it implies a claim of ownership. Putting works into another product is sometimes known as making a derivative work, while “redistributing” is quite commonly used to mean copy-and-distribute as-is. Redistribution can happen via license as well, it requires permission by the copyright owner, but does not imply the redistributor is (or is claiming to be) the copyright owner.
    - moralestapia 5y ago
      >I think the original question is legitimate and relevant You didn't see the original question, it was edited, so we cannot discuss that further. "[...] which means “distribute” under copyright law" <-- Citation needed please, because I don't think that's correct. From the site you linked: "Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending." What I seem to grasp about the difference between reproducing and redistributing is that it has to do with the concept of "transfer of ownership". Also derivate work and redistribution are not mutually exclusive. The moment you create a new thing and start distributing it (even if you do not modify it), you become the de facto owner of that new product, and copyright law is trying to limit the extent of the rights that apply there. So, in the case of music, it's different thing to play (reproduce) a song than to create a new album with your favorite artists that happens to include that particular song (redistribution).
- blooalien 5y ago
  Are they displaying the license under which said code is licensed when they display a chunk of licensed code? If not, then they're violating the terms of most licenses (except pure public domain, or other similar licenses which don't have any such requirements attached). The use of licensed code in other projects must be done under the terms of that license or you aren't legally (under copyright law) allowed to use the code.
  - leereeves 5y ago
    As I said, I'm not a lawyer, but I believe they're displaying it under the terms of the GitHub ToS, using rights granted to them when the project is uploaded to GitHub, not under the terms of the license the project uses for everyone else.
  - dahart 5y ago
    > Are they displaying the license under which said code is licensed when they display a chunk of licensed code? If not, then they’re violating the terms The GitHub TOS is a license that is separate from the license in the code. It is legal and common for an author to license the same code multiple ways (and the licenses do not have to agree with each other). By agreeing to GitHub’s TOS and uploading code to GH servers, people are licensing GH to display the code, because the license agreement says so explicitly. This could be problematic if someone uploads code they don’t have the rights to upload, but then the violation is the uploader’s, and not GitHub’s. Additionally, GH has a provision for already licensed code in section D.6: “6. Contributions Under Repository License “Whenever you add Content to a repository containing notice of a license, you license that Content under the same terms, and you agree that you have the right to license that Content under those terms. If you have a separate agreement to license that Content under different terms, such as a contributor license agreement, that agreement will supersede. “Isn't this just how it works already? Yep. This is widely accepted as the norm in the open-source community; it's commonly referred to by the shorthand "inbound=outbound". We're just making it explicit.” https://docs.github.com/en/github/site-policy/github-terms-of-service#6-contributions-under-repository-license https://docs.github.com/en/github/site-policy/github-terms-o...
dahart 5y ago
> You're confusing reproduction with redistribution. It seems like you're confused; GitHub's terms require users to grant both of those. Copyright law also covers both.
- moralestapia 5y ago
  >GitHub's terms require users to grant both of those Last time I checked (about an hour ago), that wasn't true. Feel free to provide evidence to support your argument.
  - dahart 5y ago
    > Last time I checked (about an hour ago), that wasn't true. Feel free to provide evidence to support your argument. https://docs.github.com/en/github/site-policy/github-terms-of-service#a-definitions https://docs.github.com/en/github/site-policy/github-terms-o... "publish" and "share" mean redistribution. "Store" and "copy" mean reproduce.
    - moralestapia 5y ago
      >"publish" and "share" mean redistribution No. That's something you believe, but it's not necessarily true. Check here, https://copyrightalliance.org/faqs/what-rights-copyright-owners-have/ https://copyrightalliance.org/faqs/what-rights-copyright-own... Again, distribution has to do with a transfer of ownership. In layman terms, Github can show your code to others but it cannot give (as in ownership) your code to them. It's a bit tricky here since on the web showing something literally means making a copy at some point, but try to view things under the light of "who owns what" and it's a bit easier to grasp. If you browse through someone's repository, it's pretty clear who the owner of that code is, if a program gives you a chunk of code that it "got from somewhere" there's definitely some sort of change of ownership operation going on; which in this case is interesting, as it went from attributed to someone to missing/unknown.
      - dahart 5y ago
        > Again, distribution has to do with a transfer of ownership You're mixing sub-threads here, but you're still confused. Distribution is a transfer of ownership of a copy, it does not grant copyrights or ownership of the work. You can buy a book that was distributed, and that does not give you the right to make copies of the book. > Github can show your code to others but it cannot give (as in ownership) your code to them. In the digital world, showing is "distributing", and copyright law is clear about this. You should perhaps read the definitions that are in the copyright law itself, and try to understand them: "“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. To perform or display a work “publicly” means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. https://www.copyright.gov/title17/title17.pdf https://www.copyright.gov/title17/title17.pdf

glitchc 5y ago

There's more than redistribution happening here. Co-pilot is providing a value-add service where the open-source code is an input and the output is a service. As it happens, the service is actually regurgitating the code at this point, but it's important to consider that even if it didn't regurgitate the code verbatim, the fact that the service is making use of that code to provide a value-add means the code is a crucial input to the value proposition. Would Co-pilot be able to provide the value-add without the source? Likely not. Couple that with the fact, that presumably at some point in the future, Co-pilot will come attached with a subscription model (otherwise why do it in the first place?), and we have the makings of a product that is commercially infringing on copyright left, right and center.

krono 5y ago

From the GH TOS: > 4. License Grant to Us > 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 https://docs.github.com/en/github/site-policy/github-terms-of-service#4-license-grant-to-us https://docs.github.com/en/github/site-policy/github-terms-o... . > 5. License Grant to Other Users > If you set your pages and repositories to be viewed publicly, you grant each User of GitHub a nonexclusive, worldwide license to use, display, and perform Your Content through the GitHub Service and to reproduce Your Content solely on GitHub as permitted through GitHub's functionality (for example, through forking). > You may grant further rights if you adopt a license. https://docs.github.com/en/github/site-policy/github-terms-of-service#5-license-grant-to-other-users https://docs.github.com/en/github/site-policy/github-terms-o... . So yes, but only within GitHub. . Edit: > A. Definitions > The “Service” refers to the applications, software, products, and services provided by GitHub, including any Beta Previews. https://docs.github.com/en/github/site-policy/github-terms-of-service#a-definitions https://docs.github.com/en/github/site-policy/github-terms-o... Sneaky bastards. . Edit: Formatting

ben0x539 5y ago

Not everything on Github was uploaded by the copyright holders. Often enough, it's uploaded by people who only have access to it under an open source license, so Github cannot in general squeeze additional license terms out of the uploader at that point.

leereeves 5y ago
That's a good point; what is their obligation/liability in that case?
LdSGSgvupDV 5y ago
Yap. Some of them are mirrors uploaded by unknown/non-official uploaders. I guest next step github would require cell phone to sign up to make sure who you are and get the rights to profit.

dahart 5y ago

Yes (as you now know), GitHub’s terms require users uploading code to agree to GitHub being able to both redistribute (“publish”) and reproduce (“copy” / “store”) their code. The “Terms” link on the copilot page goes directly to GitHub’s TOS, so yes the terms are one and the same. This question is interesting and I’ll try to help turn the downvotes around, but it might be too late. Anyway, when users agree to allow their code to be “published” by GitHub, they are allowing it to be both copied and distributed. The TOS also says (note the indexing/analysis comment) “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.” The part where GitHub might have trouble (I speculate) is that their TOS doesn’t discuss derivative works, and the input code to copilot could have licensing terms on derivative works that get scrubbed out by copilot. OTOH, if copilot were to guarantee that a chunk of code never resembled one of the original inputs it may be legal to create derivative works from samples under fair use.