GitHub ToS is written by GitHub, it's not a contract in the sense that no consideration has been given to the other party and as such it isn't legally binding on that other party, but regular law, such as copyright law, still applies to GitHub.
Even GPL doesn't (yet) include a clause saying the code can't be used to train AI unless the AI itself is open source
That's not what they allow for, and copyright being a 'right' it allows you to pass those rights on to others and to retain some for yourself. If not explicitly passed on the right still rests with the original author, plenty of precedent for that.
Therefore isn't following the terms of the copyright grant, ergo doesn't have a license for use, ergo is violating copyright.
Now what does that look like when I take 100 different open source licenses, including MIT, put them in a GPT blender, and then productize my output without following any of the licenses?
... makes you think there might be a legal component to why OpenAI switched to a SaaS model. Although believe they'd still be in hot water over any AGPL et al. code.
A: Common ToS to say that a product's owner obtains a license to user content for purposes of providing that user the product service.
B: Somewhat common ToS to extend that to providing the product service to third party users (i.e. use your content for other users of the service), but depends on business model (e.g. most social* businesses).
C: A lot less common ToS to obtain a right to distribute user content in derived products.
A number of sites have gotten into hot water with their userbase over trying to update their ToS from B to C. From memory... Adobe Cloud, DeviantArt, maybe some others?
Typically this gets flak in creative communities, given that it is many people's business, and they're more concerned about distribution rights than your average coder.
At its base, OpenAI/Microsoft/etc. will eventually run into the exact same issues that bedeviled the Linux kernel in the 1990s, except with a much thornier IP ownership question (given the greater number of parties).
The relevant section is this:
GitHub Terms of Service: Section D, Sub-Section 3 - https://docs.github.com/en/site-policy/github-terms/github-t...
The phrase relevant to your point is "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."
It's fair to interpret that as GitHub are not going to be copyright police. The bit at the end where I suggest a "code Id" is more of a thought experiment as to how they could continue to offer the service while complying with a potential adverse ruling that doesn't ascribe blame on them or the service since theres another section of the ToS that I, with my "knows slightly more about law than average but absolutely not a lawyer" hat firmly on, feel will be how GitHub's legal team at least try to make short work of the lawsuit, their success with this tactic is a matter for the Courts, and I'd love better legal scholars to weigh in.
GitHub Terms of Service: Section D, Sub-Section 4 - https://docs.github.com/en/site-policy/github-terms/github-t...
Which reads thus:
"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.
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."
For me the key quote being "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;". Now theres some legal arguing to be done about if charging for the AI constitutes an infringement on the second paragraph which opens with "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" but thats a very different argument to what I see a lot of people making. People are arguing (generally speaking) from the standpoint of "its not right, this violates my rights as the author having selected this license for my code/commits and published it under that licensed for others to share" ... not "i didn't agree to GitHub selling my content and this constitutes violation of GitHub Terms of Service: Section D, Sub-Section 4 where they told me that they would not sell my content".
But broadly speaking, unless the argument shifts to GitHub Terms of Service: Section D, Sub-Section 4 and classifying this as an unapproved sale of the users content, then I don't see how GitHub are not well within their rights to have trained the AI model and offered it as a service. We by agreeing to the ToS agreed to GitHub Terms of Service: Section D, Sub-Section 3 where we promise to only post code we have the rights to post and that we the user will comply with the legal complexities of third party licenses and basically are responsible for not posting stuff to GitHub for which we cant grant GitHub the requested legal rights, which when combined together means that we gave them permission to use our code and commits, regardless of any license files we may have put in the repos, to train the AI model. We can definitely argue derivation and what justifies a sale, and I'd be inclined to say they may actually have breached that term, but no one I've read is talking about that, its all about copyright infringement for AI generated code and moral rights with respect to using the code to train the model, not a clear cut contractual breach of the Terms of Service that GitHub may or may not have perpetrated on us as the other party agreeing to be bound by the contract.