Copyleft at risk: does Github lose GPL compatibility?

On March 1, a very important event occurred that went almost unnoticed, despite its significance. Github has updated terms-of-service , in which several items have appeared that threaten all repositories under the GPL, CC - * - SA and other licenses.

Subtle nuances of section D

The most annoying items are in section D on user-generated content.

You can’t see what you’re posting. You are limited to If we need to.

In particular, D.7 “Moral Rights” contains lines incompatible with licenses requiring attribution - CC-BY mainly:

This is a non-exclusive, revocable, worldwide, royalty-free, (1) admission law; and (2) make it possible.

Exceptions in the CC-BY licenses of the optional attribution to render the site is not provided, as far as I know.

Clause D.5 of the “License Grant to Other Users” contains even more unpleasant moments, since, according to some sources, it is incompatible with the GPL and most copyleft licenses:

You can post by others. You can see your repositories and they will not be able to see their repositories.
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GitHub is a non-exclusive, you’re online, you’re online, as permitted through GitHub's functionality. You may grant further license if you adopt a license.

After analyzing the problem in the comments and other resources, the main problem becomes clear. ChALkeR on Linux.org.ru formulated it very well:

Giving the githab these rights does not contradict the fact that you gave someone access, say, by CC-BY-NC-ND.

But if you yourself have received it, you cannot give it a gitkhub ", you can give it to the gitkhab" provide the Service "and" and (2) provide for this section.

That is, the problem is that you do not have the right to give such rights to Github if you have at least one line borrowed. Need permission of each author. You can license your work as you like, under several licenses at once, even though you’ll like it. True in this case, these are your problems, not Github.

Hysterical proteins.jpg

I do not exclude that I am a completely wild person in the legal aspects of software licensing, but still the new changes are somewhat alarming. Moreover, I also laid out some small projects under an open license, like many other projects. It would be wonderful to hear the comments of professional lawyers.

UPD: Fair use

Thanks to SBKarr for clarifying use under the Fair use terms. According to him, all the controversial nuances fall under the rules of fair use, as they do not violate the spirit of the license:

Paragraph D.7 Formally contradicts the requirement of attribution, but in US law it falls into fair use exclusion. Similarly, a search engine can show your content by accidentally cutting off the attribution on it. Otherwise, the search engine will not work. That is, by publishing the code on a github you use the same exception, as if you yourself created a search engine using (someone else's) code that could accidentally cut off the attribution in the search results. This exception is used everywhere. Even search engines on the FSF and GNU sites can do this.

The problem with D.5 is, rather, insufficient experience in understanding the laws. If you translate into Russian, something is written there: “By opening public access to your pages, you give each GitHub user a non-exclusive license with the right to at least view, use, and copy only using the built-in GitHub functions.”

If you grant the user the requested rights under the terms of the GPL, none of the rights granted by the license conflict with the rights that the GitHub requires. It is not exclusive, it is universal (although our right in this matter does not require separate instructions), it gives the right to view and use without restrictions. Copying the built-in GitHub executes all restrictions imposed by the license, including attribution. The key requirement for “copyleft” in these legal relationships is not affected in any way.

But what is really worth thinking about is the fact that AGPL-3.0 is compatible with github in some way. For, in this case, the githab does not guarantee that the content will not be executed on the server (more precisely, it directly states that the opposite is possible), and the provisions of this license directly overlap the mentioned fair use (which only works if the text of the license does not stated otherwise, and the application of the exception does not contradict the general spirit of the license).

As for the exclusion of use to display the site, there is a certain legal conflict. Displaying content on a site and displaying a site are two different legal entities. Displaying the content may require modifying this content, including cutting the attribution, but this process aims to show only this content. Displaying a site also implies that some copyright object is used to display other content that is not related to such copyright object.

Github requires an exception to the first entity, because then he can get it as a fair use. AGPL violation is the second entity, and it cannot fall under fair use without AGPL.

Fair use is obtained on the basis that GitHub contributes to the original author in distributing the work with the consent of the author. Displays the author's material in a convenient form for searching and perception, and for this purpose asks the author for some exceptions. If the content is not posted by the author, but by another person who does not have the right to give exceptions, such an exception can be obtained automatically according to the principle of fair use by the person publishing the work. For this person during the publication is intended to simplify access to the author's work for the society. And in the case of a free license, it does so in accordance with the spirit of the license.

Letter to the Free Software Foundation

User NickKolok offers to join him in sending letters to the FSF. Worse will not, in my opinion. Let their lawyers take notice too. Sources of the letter posted here .