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I'm not sure I understand your point. The only legal way you can use copyrighted code is due to the license attached to it by the copyright holder. If a licen

I'm not sure I understand your point. The only legal way you can use copyrighted code is due to the license attached to it by the copyright holder. If a license specifically prohibits copying the code for a purpose, then it is a violation of the copyright to copy the code for that purpose. You have no other legal way to do it. These aren't magic words, they are legal obligations. Ok, well maybe legal obligations are magic words. But it is magic that works :). Otherwise things like GPL could not function.

ISL 4y ago
The (insightful) point is that if the copyright holder is the one who uploads something to GitHub, that person has also agreed to the ToS. That was something I hadn't considered before reading the article. That line of argument might defang any claims I might have against Copilot, as I have personally uploaded much of my public open-source code to GitHub.
- MattPalmer1086 4y ago
  It's a good point. Having just read the terms of service, it is completely unclear that GitHub could monetise your code by training ML models on it. They can analyse it. They say they can't sell it or distribute it outside the service. Even though this can apparently happen with copilot sometimes! https://docs.github.com/en/site-policy/github-terms/github-terms-of-service https://docs.github.com/en/site-policy/github-terms/github-t...
puffoflogic 4y ago
> The only legal way you can use copyrighted code is due to the license attached to it by the copyright holder. This is wrong on so many levels. 1. Copyright grants a limited set of rights to the copyright holder. "Use" typically doesn't fall into that set. Everyone has the right to "use" copyrighted material for any purpose that isn't some kind of copy or distribution. 2. Even when we consider uses which are actually covered by copyright, a license is not the only way to legally copy the material. Fair use exists. 3. There is no such thing as "the license attached to it". Licenses do not "attach" to copyrighted works. A license is an individual agreement between the copyright holder and each and every person who wants to use the material (within the scope of copyright rights and outside of fair use). Those agreements can be different in every instance, if the licensor and licensee have so agreed. The only thing a LICENSE file or other similar way of indicating a license on code does is make a (binding) offer to license the work under the specified terms to all comers. Once anyone actually has a license by any means, including a separately negotiated license, then the LICENSE file no longer has anything to do with them or their use of the material. In the case of github, they have separately negotiated (by making a binding offer of their own in their ToS) a license to use the material for the provision of their service; therefore the LICENSE file has nothing to do with them (unless they want to use the offered license instead of the one they negotiated, and they haven't negotiated away the right to use the license offered in the LICENSE file).
- MattPalmer1086 4y ago
  You make some fair points, although I wasn't trying to be legally accurate. I agree that use isn't governed by copyright, copying is. However, to "use" code is to make a copy of it (multiple times usually). As far as attachment goes, I think the common sense meaning was clear. On GitHub, you can attach a license. I wasn't claiming that "attachment" was some feature of copyright law! On fair use, I agree with your point entirely.
frumper 4y ago
You give GitHub the right to use anything you upload to improve their service. What you're trying to say is after you create your GitHub account and agree to that, you're posting magic words(OSS License) that somehow binds GitHub which already has a more permissive license that you granted to them. It's articulated in the blog post.
- MattPalmer1086 4y ago
  Oh you certainly grant github some rights necessary to operate the service. Here is a relevant part: "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" Now, I read that to mean they can't sell my content. But apparently they can if they store it in a machine learning model to a greater or lesser accuracy!

ISL 4y ago

The (insightful) point is that if the copyright holder is the one who uploads something to GitHub, that person has also agreed to the ToS. That was something I hadn't considered before reading the article. That line of argument might defang any claims I might have against Copilot, as I have personally uploaded much of my public open-source code to GitHub.

MattPalmer1086 4y ago
It's a good point. Having just read the terms of service, it is completely unclear that GitHub could monetise your code by training ML models on it. They can analyse it. They say they can't sell it or distribute it outside the service. Even though this can apparently happen with copilot sometimes! https://docs.github.com/en/site-policy/github-terms/github-terms-of-service https://docs.github.com/en/site-policy/github-terms/github-t...

puffoflogic 4y ago

> The only legal way you can use copyrighted code is due to the license attached to it by the copyright holder. This is wrong on so many levels. 1. Copyright grants a limited set of rights to the copyright holder. "Use" typically doesn't fall into that set. Everyone has the right to "use" copyrighted material for any purpose that isn't some kind of copy or distribution. 2. Even when we consider uses which are actually covered by copyright, a license is not the only way to legally copy the material. Fair use exists. 3. There is no such thing as "the license attached to it". Licenses do not "attach" to copyrighted works. A license is an individual agreement between the copyright holder and each and every person who wants to use the material (within the scope of copyright rights and outside of fair use). Those agreements can be different in every instance, if the licensor and licensee have so agreed. The only thing a LICENSE file or other similar way of indicating a license on code does is make a (binding) offer to license the work under the specified terms to all comers. Once anyone actually has a license by any means, including a separately negotiated license, then the LICENSE file no longer has anything to do with them or their use of the material. In the case of github, they have separately negotiated (by making a binding offer of their own in their ToS) a license to use the material for the provision of their service; therefore the LICENSE file has nothing to do with them (unless they want to use the offered license instead of the one they negotiated, and they haven't negotiated away the right to use the license offered in the LICENSE file).

MattPalmer1086 4y ago
You make some fair points, although I wasn't trying to be legally accurate. I agree that use isn't governed by copyright, copying is. However, to "use" code is to make a copy of it (multiple times usually). As far as attachment goes, I think the common sense meaning was clear. On GitHub, you can attach a license. I wasn't claiming that "attachment" was some feature of copyright law! On fair use, I agree with your point entirely.

frumper 4y ago

You give GitHub the right to use anything you upload to improve their service. What you're trying to say is after you create your GitHub account and agree to that, you're posting magic words(OSS License) that somehow binds GitHub which already has a more permissive license that you granted to them. It's articulated in the blog post.

MattPalmer1086 4y ago
Oh you certainly grant github some rights necessary to operate the service. Here is a relevant part: "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" Now, I read that to mean they can't sell my content. But apparently they can if they store it in a machine learning model to a greater or lesser accuracy!