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.