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.