Yeah, and https://docs.github.com/en/github/site-policy/github-terms-o... has this language:

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.

This license does not grant GitHub the right to sell Your Content. [...]

So, it's not clear if they could charge for Copilot, given that last line, but indexing, analysis, and sharing with other users are all included.

Reproducing copylefted code is neither indexing nor analysis.

To be clear, a piece of code that creates a copy of some GPL code is not a problem by itself. However, it's misrepresented as something the tool "generated" rather than code belonging to an existing human actor, without appropriate attribution and licensing info.

I think we're assuming that they used GPT3 (or whatever) on code that was stored on github.com in accordance with their TOS, which means (if I understand correctly as a non-lawyer) that they didn't share it under the terms of the GPL, since they can't, but if whatever licenses the code already had attached were not sufficient, that code was also licensed to github for the purposes of indexing, analysis, and sharing with other github service users.

Does this mean that if you picked up GPL code from gnu.org and put it in your public repo, you're in violation of the GPL for illegitimately licensing that code to gihub under a non-GPL-compatible license? Maybe!

> that code was also licensed to github for the purposes of indexing, analysis, and sharing with other github service users

Even if said code was licensed to Github for sharing with other users (e.g. displaying it when another user browses the page), that doesn't mean that the same permission is given to all other users under the same conditions. Or allows them extra liberties, like using said code for purposes other than "sharing with other github service users".

No argument, there! I'm pretty concerned about the consequences of using Copilot, legally. It all seems to turn on whether a judge or judges believe that a long sequence can be produced by "learning" rather than "copying". ¯\_(ツ)_/¯

It's irrelevant. There is no guarantee that the people uploading code even have the ability to grant github such a licence if they aren't the copyright holders.

> If you upload code to GitHub, you grant them (and every GitHub user) a license to do exactly what Copilot does.

You can upload code to GitHub without the ability to grant such a license, or is github now only for primary copyright holders?

> or is github now only for primary copyright holders?

That is how I interpreted the 2017 ToS change: You can only upload code to GitHub if you’re the primary copyright holder, or the code was already on GitHub to begin with (which is only an issue if the primary repository of some project is another git host, e.g. gitlab).

Well a public repo can be cloned. And needs to be replicated in CDNs etc.

Is not that reproduction?