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Comment by pledess | Hacker News Reader

I thought "the Copilot coding assistant was trained on open source software hosted on GitHub and as such would suggest snippets from those public projects to other programmers without care for licenses" was explicitly allowed by the GitHub Terms of Service: https://docs.github.com/en/site-policy/github-terms/github-t... "If you set your pages and repositories to be viewed publicly, you grant each User of GitHub a nonexclusive, worldwide license to use, display, and perform Your Content through the GitHub Service." In other words, in addition to what's allowed by the LICENSE file in your repo, you are also separately licensing your code "to use ... through the GitHub Service" and this would (in my interpretation) include use by Copilot for training, and use by Copilot to deliver snippets to any other GitHub user.

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That just means github can display the code, and you can see the code, but that does not mean you can then profit from or redistribute (profit or no) the code without attribution.

Amazon has the rights to publish a book, and you have the right to receive a copy of the book, but neither of those gives you the right to re-publish the book under your own name.

"use, display, and perform Your Content through the GitHub Service" might allow a wide range of uses on GitHub Pages websites, even if https://example.github.io is monetized (monetization is permitted by https://docs.github.com/en/site-policy/github-terms/github-t... in a few cases)

That will work if I upload only my code, but there are many open source projects where there are more then one author and GithHub did not acquired the rights from all the authors, the uploader to GitHub might not even be the author too.

Lots of my code is on github (eg https://github.com/syuu1228/uARM), uploaded by others. I gave no license for its use in training. What now?

If the person didn't have your permission or permission from the license to agree to github's terms, then you sue the person who uploaded it to GitHub.

You don't get to go after GitHub because you have no contractual relationship with them. At best, you can get an injunction forcing them to take it down, though getting them to un-train copilot may not be feasible. At best you'd get a small cash offer, since you're unlikely to be able to justify any damages in a suit.

17 USC §504 says otherwise:

... the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements ... in a sum of not less than $750 or more than $30,000. ... in a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.

<https://www.law.cornell.edu/uscode/text/17/504>

The issue isn't contract. It's copyright infringement.

So hypothetically, if a developer publishes GPL software on Codeberg, and someone uploads it to GitHub, could the original developer file takedowns against the Github copy?

I'm curious if Github's ToS make uploading GPL software you don't own a copyright violation.

No, because the GPL is already more permissive than the GitHub TOS.

> then you sue the person who uploaded it to GitHub.

> You don't get to go after GitHub because you have no contractual relationship with them

What makes you say that? If someone eg uploads my copyrighted work to YouTube, I file a DMCA notice with YouTube to stop distributing my work. If YT ignores the notice then I can pursue them with a lawsuit.

How is this situation different?

DMCA explicitly gives you a cause of action against the party who does not properly comply with your request. GP asserts that you lack a cause of action against GitHub before they fail to comply with DMCA but I’m not certain I agree.

DMCA is a narrow protection for operators of public websites like GitHub. I don't see what it has to do with GitHub taking the data submitted to it with dubious sourcing and developing their CoPilot whatever based on it. That has nothing to do with the privileges in DMCA.

That’s right. You have lost the thread of what we are talking about: causes of action based on privity vs those created by statute.

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