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Comment by angrygoat | Hacker News Reader

The site seems to be struggling with load - here are the categories of works the author argues are incompatible with the ToS:

- Anything requiring attribution (e.g. CC-BY, but also BSD, …)

- Anything putting conditions on the right to “use, display and perform” the work and, worse, “reproduce” (all Copyleft [maybe minus GPL])

- Anything requiring integrity of the author’s source (e.g. LPPL)

There's a fair bit more detail on the post, but that's the gist of it.

The concerns relate to section D of the new ToS, which is here:

https://help.github.com/articles/github-terms-of-service/#d-...

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Much of this seems to be safeguarding Github from legal issues related to their internal handling of the data the repository: reproducing without attribution is necessary for internal search, integrity of source will be violated by search and backups (which might partition the source on the backend), and conditions of "use, display, perform, and reproduce" were already issues before -- essentially depending on users to obey the license rules -- all that changed is that Github is legally requiring your permission to do these things.

Honestly, to me, these signify more of a problem with either a) legal interpretation of these licenses or b) the licenses themselves. The things that Github wants to do with your code are perfectly reasonable, and I don't think would be interpreted as "breaking the license". All code is attributed to you when displayed to other users and isn't being broken up in its distribution (unless you believe that only viewing a single file is breaking up the source code... which is just silly) in practice.

I really don't view this as a problem. I think fighting any of these issues against Github (without this ToS) in court would likely be very difficult and unfruitful... but the risk makes it necessary for Github to protect themselves anyways.

> Much of this seems to be safeguarding Github from legal issues related to their internal handling of the data the repository: reproducing without attribution is necessary for internal search, integrity of source will be violated by search and backups (which might partition the source on the backend), and conditions of "use, display, perform, and reproduce" were already issues before -- essentially depending on users to obey the license rules -- all that changed is that Github is legally requiring your permission to do these things.

It's relatively normal for a site to claim a permissive license for the purpose of implementing site functionality, such as transmitting, displaying, rendering, or backing up the content. It's far rarer for a ToS to claim a permissive license for arbitrary other purposes, let alone grant that license to every other user of the site. The ToS changes here grant such a license to all GitHub users, and not just to use site functionality (e.g. hitting the "fork" button).

The few other times I've seen a site attempt to claim such rights over user-submitted content, it has resulted in a backlash just like this.

Sharing code is pretty central to Github's public repositories, so they're in a different position than, for example, flickr or facebook, where other users are primarily consumers of your creative works.

That being said, the license grant Github asks for ("use, display, perform, and reproduce") seems to be a minimal set that is part of any OSS license anyway. It doesn't elaborate on any terms of such a license, but from the context it's clear that GPL/BSD/CC/etc. are considered acceptable (see for example the mention of "granting additional rights via license" which links to an overview of these licenses).

Licenses don't just grant additional rights; they can also set conditions on the exercise of those rights, such as attribution or copyleft. This ToS doesn't acknowledge any of those conditions.

>Licenses don't just grant additional rights; they can also set conditions on the exercise of those rights, such as attribution or copyleft

Usually the right being exercised is that of copying, not merely using; for example, assuming that running a program is a form of use, the GPL does not set conditions on using (or displaying or performing)[1]; are there any copyright licenses that do restrict activities other than distribution?

[1]https://www.gnu.org/licenses/gpl-faq.en.html#NoDistributionR...

> are there any copyright licenses that do restrict activities other than distribution?

Quite a few.

The JSON license prevents usage in weapons, the old Java license prevents usage in nuclear submarines (until RedHat lobbied to remove that part), etc.

The JSON license does not prevent usage in weapons. Only use for evil. Weapons are not necessarily evil.

>The ToS changes here grant such a license to all GitHub users, and not just to use site functionality (e.g. hitting the "fork" button).

Sure. But if you have code that has a licence that doesn't allow that... you shouldn't be putting it on Github.

This is the clause you are referring to "If you set your pages and repositories to be viewed publicly, you grant each User of GitHub a nonexclusive, worldwide license to access your Content through the GitHub Service, and to use, display and perform your Content, and to reproduce your Content solely on GitHub as permitted through GitHub's functionality." The key words here are "solely on GitHub as permitted through GitHub's functionality." This doesn't appear to be giving users license to do anything with the code off GitHub's site.

That is, at best, ambiguous and in need of clearer drafting. The author of the article linked here, and others, are reading the "access" and "reproduce" as only for GitHub, but the "use, display, and perform" as granted to each User of GitHub and not just for use/display/performance through the site itself.

The ideal scenario is that the concerns are all drafting errors or otherwise missed details, and can be fixed via clearer drafting of a new version. I don't think there's a systematic intent here to undermine FOSS licensing, just a set of mistakes that didn't take such licensing into account very well.

I don't really see any serious issues with the new terms of service.

As they say, when you upload some code to Github (or any other service or website), they are making a copy, and then more copies for backups. If the code is visible to other users, then they are distributing it to other users. If the code is searchable, then they are taking out and distributing little bits of it.

Github needs a legal basis to do all these "obvious" things - and so would every hosting service.

If LPPL requires the integrity of the author's source code, then it's not just incompatible with Github's ToS, its incompatible with all search engines that show snippets of results.

Is there anything that they are asking for in the new ToS that they have not been already doing by running the website, and everyone being okay with when they upload code?

Forgive my ignorance here, but would this hypothetically include anything licensed under the GPL?

Yes.

No.

Maybe.

Sometimes.

Isn't CC-By (let alone other CC licenses) incompatible with most FOSS licenses anyway?

No, CC-by is a permissive license with attribution, compatible with the GPL (and likely other copyleft licenses).

CC-by-sa used to be incompatible with most copyleft licenses, but it now provides explicit compatibility with the GPL: https://creativecommons.org/2015/10/08/cc-by-sa-4-0-now-one-...

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