> 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.