If code with a license, say GPL, goes out somewhere else, by someone else (and therefore I don't have the right to change the license) and then I fork it, as per the license I keep the license and put it on github, and Github violates that license, aren't they violating the law? Don't they then have to remove that code?

> If code with a license, say GPL, goes out somewhere else, by someone else

If the code is GPL licensed, you can't relicense it under a non-FOSS license like you're talking about

> Don't they then have to remove that code?

Yes, if code gets uploaded whose license is incompatible with Microsoft's terms, they probably do have to remove it.

> Now imagine this: I write some code, license it, but don't publish it yet. It's licensed. Then I upload it to github. Does the license supersede the ToS? Doesn't github have to remove the code as a ToS violation

Again, yes, they probably do, and they also probably have an obligation to clean their training data of it. However, if you're the copyright holder of the code and you agree to their ToS before uploading, they might make the case that you agreeing to their ToS does grant them the license to use it in training data.

Not re-license. I upload with the same license I got it with, as per the license.

So then Github is breaking the law a significant portion of the time then at the very least?

Microsoft/Github makes a reasonable attempt to remove infringing code. If you obtain a copy of proprietary source code owned by Apple on the dark net, and upload to github, they'll definitely remove that. If companies were responsible for user-uploaded content that the company takes reasonable steps to remove, no one would be able to accept user-uploaded content in the first place.

Facebook wouldn't be able to allow users to upload photos.

Hacker news wouldn't allow me to post this comment (someone else could own the copyright, right?)

If Github's ToS says that they have carte blanc to do whatever they want with FLOSS licensed code, including to relicense it, then either every single codebase on github violates their ToS or their ToS violates every single license and therefore the law. A reasonable attempt under these circumstances would be to remove every single FLOSS licensed repository on github, so I'd argue no, they do not make a reasonable attempt to remove infringing code.

You are conflating many different things.

> If code with a license, say GPL, goes out somewhere else, by someone else (and therefore I don't have the right to change the license) and then I fork it, as per the license I keep the license and put it on github, and Github violates that license, aren't they violating the law? Don't they then have to remove that code?

You are violating the law, probably. The ToS would say something like "I hereby declare that I hve the right to agree over the software to submit it under the ToS".

I'm not violating the law, I'm violating the ToS. They should them remove the my account and the offending code, lest they then go on to violate the law, no?

Yes but I guess it won't happen until someone complains. Similar to other content, e.g. YouTube, but in reality nobody requests takedowns of forks/copies.

Alright, now suppose someone does. Doesn't that mean Microsoft has to rework all work they made with these codebases using this legal argument and not a fair use one? Doesn't even doing this set them up for a potentially very expensive compliance action?

I think what you say is true: either they train on any open sourced code with fair use, no matter if it was published on github or anywhere, and ignoring the license, OR they trained on data that is potentially not complying with their ToS (e.g. uploaded by someone that is not the author, regardless of license, they couldn't legally agree to a ToS that gives away additional rights of the work).

However, the reality is that this is all extremely muddy, far from proving that software A has copied some code from software B where you can just compare the source code. There are too many muddy steps, and you can bet that Microsoft will just get away with it.

The vast majority of the code I've written that is on GitHub isn't on GitHub because I would ever have stooped to putting it there, but because it is open source under a license that lets other people redistribute and edit the code (most often GPL or AGPL; maybe some older code under BSD) and they have chosen to use GitHub (which makes me sad, but as far as I'd have been concerned is totally within their rights). Are you claiming that people should not be allowed to clone other peoples' open source projects and put copies up on GitHub?

Well upthread the discussion changed to using a non-open license that prevents people from training AI on it. If you released software under such a license, someone re-uploading to Github would probably be violating their terms or yours. Regardless, Microsoft would probably remove the repo if you contacted them to let them know you're the copyright holder, and the software license is incompatible with their terms.

It remains to be seen if they have a way to then clean their training data of the influence.

It would be the same situation if someone uploaded any other proprietary code.

You shouldn't have to though, they have a responsibility all their own to check that they have the rights regarding someone else's copyright before they do what they want to do, rather than to do it anyway and then to wait for the rights holder to come to them.

Copyright isn't 'opt in'.

I mean, if someone uploads a repo that contains proprietary code that also contains CI actions from the proprietary codebase, formatted the same as github actions, they're going to run those actions under the assumption that they are allowed to (even though they aren't, because it means they're running proprietary code). It's all automated. The person uploading the proprietary code would be the one infringing in that case.

Yes, but that's a different discussion. In this case the person does have the rights under the GPL to do what they do, but GitHub does not have an automatic right to assume that that gives them the right to enforce their ToS on the original copyright holder, which they effectively do.

> Copyright isn't 'opt in'.

Before 1989, copyright protection was opt-in in the US.

https://en.wikipedia.org/wiki/Copyright_notice

It's 2023.

> Are you claiming that people should not be allowed to clone other peoples' open source projects and put copies up on GitHub?

If the github ToS supercedes the author's own licence, then I guess the uploader is effectively relicensing the code without the author's permission. That would mean the author has cause for action against the uploader, but not against github.

I personally dislike git; I find it too complicated, because of features I don't need. Microsoft has always disliked FOSS anf GPL, and I suspect that Copilot is a deliberate effort to undermine it.

This is true, but a ToS should not be able to override an important law such as copyright, which provides you with several inalienable rights that you can only contract out of with your explicit consent. Doubly so if the ToS are changed after you post your code there without your explicit approval. I could put text in the ToS of my website that you owe me your firstborn, but that wouldn't make it legal or enforceable.

Microsoft cannot opt out of common law either