That doesn't sound right. Licences can allow sublicensing, and I think all the popular open-source ones do.
There is also additional problems specific to sublicenses. In the United States, only exclusive licensees are assumed by statute to have a right to sublicense. The theory is that licensees of exclusive licensees are assumed to have the control/authority similar to that of the author. Nonexclusive licensees are not assumed to be granted such a monopoly by the licensor.
e.g. 4. [..] You grant us [..] the right to [..] parse, and display Your Content [..] as necessary to provide the Service, This license includes [...] show it to [...] other users; parse it into a search index or otherwise analyze it
As the Service now includes copilot, publishing anything on Github seems to give them the right to use it in copilot. Maybe even for private repos
Besides of the issue we're currently discussing, I wonder also about:
5. [..] you grant each User of GitHub a [..] 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).
So if you find GPLed content on github, you might be allowed to violate the GPL as long as it happens only on github. I don't know how bad this is in practice. Their CI presumably allows you to run code for other people without granting them the rights the GPL should give them, but that might be a violation of the Github TOS as this might be abuse of the CI servers.
This might also mean you violate the GPL when publishing someone else's GPLed code on github, as you now granted Microsoft and others rights not included in the GPL.
Clearly, IANAL, don't know how valid this reading is, but publishing anything you didn't wrote yourself might not be on a very stable legal basis.
https://docs.github.com/en/site-policy/github-terms/github-t...
Yes. This was one of the legal theories behind why Apple refuse to allow GPL in the Mac App Store. The TOS that apple required from developers givens Apple specific rights which the GPL do not grant, and thus any software that get uploaded must be assumed as providing the software under two separate licenses. Given that many free and open source projects has multiple authors, it is a rather large assumption that the person who uploads the software has the complete authority to provide the software under multiple conflicting licenses.
It is after all the distributor that has to do the due diligence to confirm that they are in the right to distribute.
In practice, I think the entire open source world knows that people post each other's open source code on GitHub. Even projects that have very purposefully chosen to primarily use other services or self-host their source code are well aware that their code gets mirrored on GitHub and/or included in other people's repos on GitHub. Up until now, I don't think this has been controversial and I don't think GitHub gets a lot of takedown requests for this practice. I think most developers see this as a feature, not a bug. Copilot might make people rethink whether or not they want to start sending take-down requests but that'll be a tough call for a lot of people because withholding code from GitHub to avoid its usage in Copilot also effectively means making their code less easily available to the rest of the world. It may be very disruptive to other projects that include the copyright owner's code in their own projects.
If my code was uploaded on GitHub, I would DMCA it because of Copilot, but it wouldn't matter because the information is already in the model. So the DMCA does not help here.
The only way it would help is if I could DMCA the entire model and force them to retrain without my code. As it stands, this lawsuit is the only way for GitHub to be reined in; I don't have the resources to do so on my own.
IANAL.
Also, about high impact, suppose Copilot has 1 million users that use it on average 10 times a day, 5 days a week. You claim that less than 1% of uses of Copilot would result in copyright violation. Let's assume 0.1%. How many times would copyright violation happen per day? It would happen 10,000 times per day. For five days a week.
It would take a mere twenty weeks (less than six months) to reach a million violations.
That seems impactful.
I wonder if a court would think that microsoft in this case has done their due diligent to verify that the license grant that they got from users are correct and in order.