I mean, even if the license was placed on the code, that doesn't mean, if it's not protected by copyright, then it's fair game for copilot to scrape, learn from, and emit variations of, the code.

I believe github's lawyers would have had hundreds of hours of dicussion about this and at this point, they believe they are in the right, and anybody who disagrees should use the legal system to resolve the matter.

In the meantime, what it is and isn't doing wrt licenses seems to be poorly understood externally.