You relinquish all licensing rights when you upload your code to GitHub. Microsoft can do whatever they want with it. That's in their ToS, which you have to agree to when you make an account. Normally, only affirmatively accepted ToS are enforceable, so just putting a clause into your license doesn't work (unless it's a copyright, which doesn't require consent).

> You relinquish all licensing rights when you upload your code to GitHub

What now? Seriously?

I found this. Section D4.

"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."

"as necessary to provide the Service" seems critical.

Also, section D3 of the GitHub Terms of Service says:

> You retain ownership of and responsibility for Your Content.

and section D4 says:

> 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, except that as part of the right to archive Your Content, GitHub may permit our partners to store and archive Your Content in public repositories in connection with the GitHub Arctic Code Vault and GitHub Archive Program.

There is nothing in the terms that requires the GitHub user to relinquish all licensing rights.

https://docs.github.com/en/site-policy/github-terms/github-t...

The clauses always have a trap door: "[outside of] our provision of the Service" means they can do anything as long as it's a service they provide.

Under definitions: The “Service” refers to the applications, software, products, and services provided by GitHub, including any Beta Previews.

I think there's misunderstanding over what the word "relinquish" means.

The terms make clear that uploading code to GitHub gives GitHub 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" while the code is hosted on GitHub.

However, that's not the same thing as relinquishing (giving up) licensing rights to GitHub. The uploader still retains those rights, and there is nothing in the terms that says otherwise.

The question turns on whether you consider copilot part of the "GitHub service."

GitHub would argue that it is, and they'd likely argue that charging for access to copilot is akin to charging for access to private repositories.

Others would say that copilot is somehow separate from the services Github provides, so using their code for CoPilot wouldn't be covered by the ToS.

It is certainly a service that's being provided. If not by GitHub, then by whom?

I'll repeat the definition of service: The “Service” refers to the applications, software, products, and services provided by GitHub, including any Beta Previews.

So do you believe if you hosted a closed source project on GitHub, and GitHub decided they want to integrate this into their service they would simply be allowed to take the code?

Fortunately HN commenters are not judges. And I would wager any bet that MS lawyers would not try to argue based on their ToS either, that would be a recipe for loosing any court case.

I just mean that it doesn't really matter what your license says as long as GitHub can come up with a business justification for using it in some way. Certainly, other users still legally have to obey your copyright.

"Improving the service over time" can do a lot of heavy lifting, definitely including training Copilot.

So, to verify, are you claiming it would not be allowed for you to upload my otherwise-open-source code (code I do not myself host at GitHub, but which was reasonably popular / important code) to GitHub?

Yep. It's in their ToS:

If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post; that you will only submit Content that you have the right to post; and that you will fully comply with any third party licenses relating to Content you post.

I suppose this means if I upload your stuff to GitHub, and you sue GitHub, then GitHub would be able to somehow deflect liability onto me.

That doesn't make sense. For example, GPLv3 allows anyone to redistribute the software's source code if the license is intact:

> You may convey verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice; keep intact all notices stating that this License and any non-permissive terms added in accord with section 7 apply to the code; keep intact all notices of the absence of any warranty; and give all recipients a copy of this License along with the Program.

https://www.gnu.org/licenses/gpl-3.0.en.html

If GitHub uses the source code in a way that violates the license, there is no provision in the GitHub terms of service that would allow GitHub to deflect legal liability to the GitHub user who uploaded the program. The uploader satisifed the requirements of GPLv3, and GitHub would be the only party in violation.

Uploading is granting GitHub a license separate from the gpl license.

If you can't actually grant that separate license, you're misrepresenting your ownership and license to that code

I'd like to see that theory tested in court. Section D3 of the terms says:

> If you upload Content that already comes with a license granting GitHub the permissions we need to run our Service, no additional license is required.

https://docs.github.com/en/site-policy/github-terms/github-t...

and section D4 does not mention any permissions that GPLv3 does not already cover. GitHub automatically recognizes when a repo is GPLv3-licensed, so it cannot claim ignorance of what GPLv3 is.