I can't imagine a scenario in which any lawyer would consider granting Github the right to "analyze" code anywhere close to granting Github the right to spit out that same code verbatim without your copyright notice (even if laundered by AI).
> According to Downing, the answer depends to a certain extent on where that code is hosted. If it’s on GitHub, there very clearly would not be copyright infringement.
> “If you look at the GitHub Terms of Service, no matter what license you use, you give GitHub the right to host your code and to use your code to improve their products and features,” Downing says. “So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward.”
Downing cautions that copilot output of large chunks of code complete with comments are more questionable to use, but that for the most part it looks above board.
https://fossa.com/blog/analyzing-legal-implications-github-c...
Here's an English lawyer on the same topic...
> The licence is broadly worded, and I'm confident that there is scope for argument, but if it turns out that Github does not require a licence for its activities then, in respect of the code hosted on Github, I suspect it could make a reasonable case that the mandatory licence grant in its terms covers this as against the uploader.
https://decoded.legal/blog/2021/06/github-copilot-initial-th...
I am very surprised there hasn’t been a legal challenge to it.
“I’m sorry your honor I didn’t understand what I was signing” I don’t think has ever been a valid reason in a courtroom, similar to “I’m sorry I didn’t know I was committing a crime” is not a valid defense.
When the terms were written, it's exceedingly unlikely that they intended it or anyone understood it to be blanket permission to allow a trained AI to copy code for others and no user would have interpreted it that way. Microsoft/Github can't necessarily unilaterally increase the intended range without making it clear in the terms.
If it got to a court case, and both sides could afford it, it could be a lengthy one.
(This comment is not legal advice. I am not a lawyer.)
By uploading your code, you give Github an exclusive license to use it to improve their services. Copilot is such a service. Just because it's an AI and it provides others code does not somehow invalidate the license you gave.
Many online services have very wide terms around what they can do with your data, which most people who bother to read them interpret as being what is required for them to handle the service for you without breaking copyright law. In that context, being able to use and analyse your data to improve their services could be another catch-all that lets them do specific performance optimisation on their backend.
One party instead deciding they've got blanket permission to do whatever they like with your work, including selling it to others, may well not hold up in court.
Contracts aren't programs and one party tricking the other rarely works out in court - courts world-wide tend to rule against trickery and deception.
That's assuming that all code on GitHub is uploaded in good faith by the copyright owner, which is not always going to be the case.
Linux, for example, does not require copyright assignment. The original contributor of a change owns the copyright for that code and may have never used Github.