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From what I vaguely understand, part of the GitHub terms of service is granting GitHub / Microsoft various rights to store, index, etc. the contents of your rep

From what I vaguely understand, part of the GitHub terms of service is granting GitHub / Microsoft various rights to store, index, etc. the contents of your repositories. That is, in addition to whatever license you choose to use for your project, you are granting GH/MS additional rights on top of that (if they are not already granted by the project license). While I am not a lawyer / licensing expert, I would be very surprised if the terms of service did not include rights or some other loophole allowing it to be used for training machine learning systems[1]. So the actual license you'd use is probably irrelevant while it's hosted on GitHub. [1] A paragraph from section D4 here https://docs.github.com/en/site-policy/github-terms/github-terms-of-service#d-user-generated-content https://docs.github.com/en/site-policy/github-terms/github-t... states: "We need the legal right to do things like host Your Content, publish it, and share it. You grant us and our legal successors the right 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." I'd guess CoPilot would be covered by either the parsing or improving the service provisions.

bugfix-66 4y ago
Perhaps it could be argued that Copilot was an unexpected development, and the users of GitHub could not possibly have intended to donate all their work to be used anonymously and without attribution? It's a bit like how non-compete clauses are unenforceable in California. The Copilot theft of intellectual property might be viewed as being too far from anyone's reasonable expectations? We'll see how the legal battle turns out.
imtringued 4y ago
That doesn't absolve the users of the generated output(they have to clean room it to be safe), it just means Microsoft can't be sued for using the code you voluntarily uploaded.
kazinator 4y ago
> part of the GitHub terms of service There are tons of code in Github by authors who do not use Github, and are not bound by its terms of service. Microsoft and Github have no permission to that code beyond to what is granted in its licensing. > You grant us and our legal successors the right to store, archive, parse, and display Your Content Many Github uploaders do not have the right to be making any such grants to anyone, since they are uploading someone else's code. If you've had someone else upload your code to Github, even if the code is entirely open source, you have the right to demand, for instance, that Github not serve any portion of it without showing your copyright notice. For instance, some kind of search function which shows only several lines of your code that contain a match for some search terms, could be deemed infringing. A license like two-clause BSD doesn't allow an excerpt of your code to be transmitted over a network, stripped of the copyright notice, list of conditions and disclaimer.

bugfix-66 4y ago

Perhaps it could be argued that Copilot was an unexpected development, and the users of GitHub could not possibly have intended to donate all their work to be used anonymously and without attribution? It's a bit like how non-compete clauses are unenforceable in California. The Copilot theft of intellectual property might be viewed as being too far from anyone's reasonable expectations? We'll see how the legal battle turns out.

imtringued 4y ago

That doesn't absolve the users of the generated output(they have to clean room it to be safe), it just means Microsoft can't be sued for using the code you voluntarily uploaded.

kazinator 4y ago

> part of the GitHub terms of service There are tons of code in Github by authors who do not use Github, and are not bound by its terms of service. Microsoft and Github have no permission to that code beyond to what is granted in its licensing. > You grant us and our legal successors the right to store, archive, parse, and display Your Content Many Github uploaders do not have the right to be making any such grants to anyone, since they are uploading someone else's code. If you've had someone else upload your code to Github, even if the code is entirely open source, you have the right to demand, for instance, that Github not serve any portion of it without showing your copyright notice. For instance, some kind of search function which shows only several lines of your code that contain a match for some search terms, could be deemed infringing. A license like two-clause BSD doesn't allow an excerpt of your code to be transmitted over a network, stripped of the copyright notice, list of conditions and disclaimer.