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Comment by gpm | Hacker News Reader

I am not a lawyer... There may be an argument here that

1. GitHub has a valid license to distribute it (as a result of their TOS)

2. Running the downloaded code is not copyright infringement (or not obviously so, and hasn't been established as so in any court that I am aware of)

3. Using the APIs is not copyright infringement (see Oracle v Google, if that was fair use this almost certainly is)

Thus no copyright infringement has occurred.

Still, keeping this in the codebase is at best boobytrapping your code to create accidental future instances of copyright infringement, and it's an interesting case of people not checking licenses (since it's pretty clear they didn't realize this in advance).

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Github has a valid license to distribute it but you are not Github so that doesn't give you a right to anything. In particular it doesn't give you a right to download it.

> In particular it doesn't give you a right to download it

That sentence is wrong, GitHub’s terms of service explicitly give users a right to download, and also run, the code of any project that is publicly visible. Please read the terms, especially section D “5. License Grant to Other Users”. https://docs.github.com/en/github/site-policy/github-terms-o...

Those terms don't say anything about a right to "download and also run" code:

> you grant each User of GitHub a nonexclusive, worldwide license to use, display, and perform Your Content through the GitHub Service and to reproduce Your Content solely on GitHub as permitted through GitHub's functionality

(emphasis mine)

“Display”, “Use”, and “View” are all terms that are all talking about downloading. “Perform” means to run the code. You are still using the GitHub service when you clone a GitHub repo locally, that is part of GitHub’s functionality. What it’s not saying is that the only way to view a project is via an http connection through a browser to github.com.

"Perform" means to run the code THROUGH GitHub and its services (i.e. Actions). You are NOT allowed to run the code on any hardware YOU own. Downloading is an implementation detail of performing your right to "Display", "Use", and "View" the content ON GitHub and its services. You are forbidden from downloading the content for any other purpose.

> You are NOT allowed to run the code on any hardware YOU own.

Sure you are, that is just not true.

> You are forbidden from downloading the content for any other purpose

The rights GitHub grants allow a copy to be made. What you can’t do is redistribute the code, that part is clear. But what you do with it on your machine when not showing it to anyone else is not prohibited by GitHub’s terms, nor by copyright law. I’ve read both. If you have too, and believe otherwise, please cite the relevant sections.

> 1. GitHub has a valid license to distribute it (as a result of their TOS)

From the GitHub TOS someone posted:

"... license to use, display, and perform Your Content through the GitHub Service and to reproduce Your Content solely on GitHub as permitted through GitHub's functionality (for example, through forking)"

I'm not sure if cloning from GitHub to your local computer falls under "reproduce Your Content solely on GitHub as permitted through GitHub's functionality" (due to "solely on GitHub" part).

I'm not completely sure either, I don't think you would get a definitive answer short of litigating it (and let's be honest, no one is litigating over this).

(Again, not a lawyer, not super familiar with this part of copyright law, but...) I'd argue that the copy is made on githubs server and then sent to me, and I simply move the sole copy around (or to the extent that I make a new copy it is a lawful copy of the network traffic for archival purposes under 17 USC 117 (a) (2)). That "git clone" is clearly a integral part of githubs service so the license is clearly intended to cover it. That "git clone" is not meaningfully different from "wget" from "a web browser" - again the license is clearly intended to cover this. That any liability that does exist falls on GitHub as the party making the copy.

I'm not sure which if any of those arguments would convince a court though

Regards (3): have not they have a dependency on the implementation? Oracle/Google was about the interface and the design of the API interface not the implementation.

They do, it's not an entirely identical situation, I believe it is analogous though.

The question I'm addressing in 3 is whether or not the source code becomes a derivative work of the dependency (meaning writing it in the first place would be illegal). The only portion of the dependency that the source code copied was the names of a few functions/modules (part of the API). Copying that part of the API into the work seems very analagous to the Oracle/Google case, except even less was copied and it is even less of a market place competitor (but again, I'm not a lawyer).

The license forbids use. The project is (or was) clearly using it. GitHub is irrelevant.

The license has no legal authority to forbid that which is not forbidden by law and/or permitted by other licenses the author has granted. (See other discussions here for arguments as to whether or not it has that legal authority)

github TOS do not grant you use of others code. it grants distribution. those are two very different things.

See this sibling thread: https://news.ycombinator.com/item?id=28265245

I am contending (with citations to the law) that you simply don't need a license to execute other peoples code once you legally have a copy of it.

The core question is whether downloading code from GitHub legally gives you a copy of it.

The answer is likely no (within the U.S. at least), based on conversations I’ve had with lawyers who specialize in intellectual property law.

While arguing on HN is a fun intellectual exercise, I would encourage anyone to talk things over with a lawyer before putting financial resources at risk by intentionally violating the expressed license (or lack thereof) in published software code. Even if it is published on GitHub.

I wonder what happens when I upload to GitHub code that I have permission to distribute, but that I don't own, that GitHub doesn't have permission to distribute and I don't have permission to give others permission to distribute.

Then you cannot grant such right to GitHub, thus, you cannot post to GitHub.

I do wonder about things like the linux kernel being uploaded to github though... it doesn't seem like all the contributors consented to giving GitHub this license.

Those rights are a subset of those granted by the GPL2, aren't they ?

I don't believe so, since the GPL (like most licenses) conditions those rights on things like keeping the license intact. Also the GPL doesn't actually say anything about performance or display (which may or may not matter).

I think GitHub gives you the right to download or fork the repo, but the license explicitly states that you can't use the code. That might mean running it on its own is technically illegal.

The license literally says "you can't use this". How are so many people confused about the license in this thread?

> That might mean running it on its own is technically illegal.

Based on what law/authority?

Copyright law forbids making copies, derivative works, etc. Not using things. You're allowed to read a book without a license.

Moreover copyright law makes an explicit exception for the copies required to run a computer program on a machine that aren't used in other ways (i.e. copying it to ram/registers): https://www.law.cornell.edu/uscode/text/17/117

The author may say "you can't use this", but it is not clear to me that he has any legal authority to do so.

Quite so. As written, it's a null statement. To be enforceable, a license has to be written by one party such that another party may acquire rights in exchange for accepting the terms. This is how licenses become contracts.

Simply reading the words "Don't use it" does not bind you, because there is no grant of use; there is no offer or exchange of value, so no contract has been formed, and the statement is at best advisory. It is equal to writing "All rights reserved", which is to say, you retain whatever rights pre-existed under statutory and common law, such as right of fair use and so forth, and anything due to Github's ToS.

Engineers often fall into the trap of thinking the law is a programming language. It isn't, mercifully.

As pointed out in other comments, music and drama are exceptions to this where their ‘use’ is protected by copyright. You can read a play aloud if you like, but you can’t perform it publicly without permission (or royalties).

That's the typical outcome, but not by exception to this analysis; if a work of music or drama included an equally poorly worded "license", then the rights and obligations of all parties would similarly fall back to the terms of service of the platform through which the work was acquired, with a backstop of the Berne Convention, TRIPS agreement, TPPT, and various EU directives (or rather more specifically, the local implementation of those, assuming your jurisdiction is a signatory to any).

That is not a blanket exemption. It is for "the owner of a copy of a computer program".

If you stole a copy of Microsoft Office on CD from a shop (back when that was a thing) it seems clear that using the software would have been a copyright infringement because you wouldn't have been the owner.

In this case you have the right to download the software (via the github agreement) but how does that relate to ownership and the legal exemption? I've no idea.

I believe "owner" here is just referring to classical property rights, you literally own the magnetized platter which encodes the program, like you literally own the ink and paper that makes up a book. Once you've downloaded the software you have a version of it on your hard disk (or ssd) that you literally "own" (but you don't own the copyright to it).

It's due in part to the absurdity of of publicly sharing something and then declaring "neener neener you can't use this." It's seemingly contradictory to open-source something that you forbid the use of.

This would have been a mostly benign comment had you not thrown in the bad take about Oracle v. Google. There are enough of those on the Internet already.

Care to share your objection to it?

Not particularly. For further inquiries, refer to the about section of my HN profile.

You can also refer to this thread and pay particular attention to toyg's response.

<https://news.ycombinator.com/item?id=27687960>

> Unlikely to respond to replies. (A tip for the intellectually dishonest: you can seize this opportunity to get the last word in.)

Lol (quoting your profile here since I think it's fair to give other people the expectation that you won't engage)

> toyg's response.

I both agree with his reponse and would categorize my use of the case here as within that (the only code copied out of the dependency is API related).

I can't force you to debate this, but I also have to say I don't think casting vague aspirations without an explanation is a useful form of comment.

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