It’s not “oops we didn’t know” it’s, “someone published a project under a permissive license which included this code.”
If your standard is “Github should have an oracle to the US court system and predict what the outcome of a lawsuit alleging copyright infringement for a given snippet of code would be” then it is literally impossible for anyone to use any open source code ever because it might contain infringing code.
There is no chain of custody for this kind of thing which is what it would require.
GitHub used code that wasn't under any license at all, just publicly visible. Their claim is not that the license allows what they're doing, but that they do not need a license.
So, I can't see how they can argue that the code generated is not a derrivative of at least some of the code that it was trained on, and therefore encumbered by a complicated, and for anyone other than GitHub, impossible to disentangle, copyright claims. If they haven't even been careful to only use software under one license that does not require the original author to be attributed, then I don't see how it can even be legal for them to be running the service.
All that said, I'm not confident that anyone will stop them in court anyway. This hasn't tenmded to be very easy when companies infringe other open source code copyright terms.
Until it is cleared up though, it would seem extremely unwise for anyone to use any code from it.
There's a general false assumption at the very beginning of this article that users own the code they upload to Github (I can freely & legally upload some code I forked from a FOSS project elsewhere).
Pretty concerning that this fairly obvious oversight was missed by an IP lawyer consulted by a platform apparently dedicated to managing open-source code.
Github's own ToS makes explicit & careful distinction between code you upload and code you own.
It will not be GitHub that will get sued. It'll be the developers that use the code without attribution.
The copyright infringement might not matter if code from individual developers is being used - they usually don't sue. But once this happens to say Oracle's copyrighted code... Well, that is going to be interesting.
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).
This seems to ignore the widely repeated claim that GitHub's terms of service explicitly grant them a license beyond the actual open source license attached to the code and thus transfer the burden of liability to the uploader when it comes to code they can not control the licensing of.
So either this is about code authored by people who did not use GitHub (in which case GitHub would be immediately liable, though they could try to sue whoever uploaded that code to GitHub for damages) or it's going to have to argue that the terms of service can't smuggle in a provision that effectively sidesteps even the most permissive open source licenses.
They don't have standing to auto file a counter notice. And then if someone accidentally publishes something copyrighted to github, they probably don't want to go through a lawsuit.
I looked at the code some, there are some app secrets stored and used, so they probably have at least a thin claim.
It's irrelevant. There is no guarantee that the people uploading code even have the ability to grant github such a licence if they aren't the copyright holders.
It's not at all obvious they'd lose. Github is not violating anybody's copyright. They're only distributing source code, presumably with the full consent of the authors.
Sorry, to be clear, I meant even if a Github user asserts their code is public-domain/no-attribution/unlicensed, they could have lifted it off a codebase that doesn't allow it. It would be tricky for Github to establish the code was indeed original and hence their agreement with the user allows them to train their models on it.
>“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.”
Not as straightforward as they think thou.
If a code project used (a)gpl code found elsewhere on the internet in their repo, and another user took the project and hosted it on github, the tos can not give github a license to use the code outside of the license given by (a)gpl, even if github thinks they have one, that won't shield them from legal liability, nor will it shield co-pilot users from being legally compelled to (a)gpl their code if a court case was won on those grounds.
The github tos is basically a non-factor in this case.
The comment I was responding to was about the case where person X uploads code to GitHub, and that code contains code from person Y whose license to X does not give X permission to grant GitHub the rights that GitHub requires from the uploader, and so GitHub's use of Y's code is without copyright permission.
I believe GitHub would likely be seen as an innocent infringer in that case.
In my opinion using all of the code on GitHub without respecting the licenses was a capital mistake. It should have been opt-in, maybe with some incentive but to just take it all without so much as a by-your-leave is not going to play well in court.
Yeah, I edited my comment as I think I miss-spoke actually. Technically, GitHub as a platform will allow us to fork or clone this code. But with no license file, from a legal point of view, we cannot use it, or whatever else an open source license would allow.
I find it weird that both you and TechnologyClassroom in that GitHub issue thread brought up copyright. Even if the developer had used an open source license, they would still have retained copyright. You can complain about the license just fine, but copyright is not relevant to that discussion.
> “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,” [Kate] Downing, [an IP lawyer specializing in FOSS compliance] says. “So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward.”
This has some interesting implications – for example, it means I can't mirror somebody else's (open source) code on GitHub without their explicit agreement.
If your standard is “Github should have an oracle to the US court system and predict what the outcome of a lawsuit alleging copyright infringement for a given snippet of code would be” then it is literally impossible for anyone to use any open source code ever because it might contain infringing code.
There is no chain of custody for this kind of thing which is what it would require.
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