On February 28th, GitHub published a brand new version of its Terms of Service (ToS). While the first draft announced earlier in February didn't generate much reaction, the new ToS raised concerns that they may break at least the spirit, if not the letter, of certain free-software licenses. Digging in further reveals that the situation is probably not as dire as some had feared.
The first person to raise the alarm was probably Thorsten Glaser, a Debian developer, who stated that the "new GitHub Terms of Service require removing many Open Source works from it". His concerns are mainly about section D of the document, in particular section D.4 which states:
You grant us and our legal successors the right to store and display your Content and make incidental copies as necessary to render the Website and provide the Service.
Section D.5 then goes on to say:
[...] You grant each User of GitHub a nonexclusive, worldwide license to access your Content through the GitHub Service, and to use, display and perform your Content, and to reproduce your Content solely on GitHub as permitted through GitHub's functionality
The concern here is that the ToS bypass the normal provisions of licenses like the GPL. Indeed, copyleft licenses are based on copyright law which forbid users from doing anything with the content unless they comply with the license, which forces, among other things, "share alike" properties. By granting GitHub and its users rights to reproduce content without explicitly respecting the original license, the ToS may allow users to bypass the copyleft nature of the license. Indeed, as Joey Hess, author of git-annex, explained :
The new TOS is potentially very bad for copylefted Free Software. It potentially neuters it entirely, so GPL licensed software hosted on Github has an implicit BSD-like license
Hess has since removed all his content (mostly mirrors) from GitHub.
Others disagree. In a well-reasoned blog post, Debian developer Jonathan McDowell explained the rationale behind the changes:
My reading of the GitHub changes is that they are driven by a desire to ensure that GitHub are legally covered for the things they need to do with your code in order to run their service.
This seems like a fair point to make: GitHub needs to protect its own rights to operate the service. McDowell then goes on to do a detailed rebuttal of the arguments made by Glaser, arguing specifically that section D.5 "does not grant [...] additional rights to reproduce outside of GitHub".
However, specific problems arise when we consider that GitHub is a private corporation that users have no control over. The "Services" defined in the ToS explicitly "refers to the applications, software, products, and services provided by GitHub". The term "Services" is therefore not limited to the current set of services. This loophole may actually give GitHub the right to bypass certain provisions of licenses used on GitHub. As Hess detailed in a later blog post:
If Github tomorrow starts providing say, an App Store service, that necessarily involves distribution of software to others, and they put my software in it, would that be allowed by this or not?
If that hypothetical Github App Store doesn't sell apps, but licenses access to them for money, would that be allowed under this license that they want to my software?
However, when asked on IRC, Bradley M. Kuhn of the Software Freedom Conservancy explained that "ultimately, failure to comply with a copyleft license is a copyright infringement" and that the ToS do outline a process to deal with such infringement. Some lawyers have also publicly expressed their disagreement with Glaser's assessment, with Richard Fontana from Red Hat saying that the analysis is "basically wrong". It all comes down to the intent of the ToS, as Kuhn (who is not a lawyer) explained:
any license can be abused or misused for an intent other than its original intent. It's why it matters to get every little detail right, and I hope Github will do that.
He went even further and said that "we should assume the ambiguity in their ToS as it stands is favorable to Free Software".
The ToS are in effect since February 28th; users "can accept them by clicking the broadcast announcement on your dashboard or by continuing to use GitHub". The immediacy of the change is one of the reasons why certain people are rushing to remove content from GitHub: there are concerns that continuing to use the service may be interpreted as consent to bypass those licenses. Hess even hosted a separate copy of the ToS [PDF] for people to be able to read the document without implicitly consenting. It is, however, unclear how a user should remove their content from the GitHub servers without actually agreeing to the new ToS.
When I read the first draft, I initially thought there would be concerns about the mandatory Contributor License Agreement (CLA) in section D.5 of the draft:
[...] unless there is a Contributor License Agreement to the contrary, whenever you make a contribution to a repository containing notice of a license, you license your contribution under the same terms, and agree that you have the right to license your contribution under those terms.
I was concerned this would establish the controversial practice of forcing CLAs on every GitHub user. I managed to find a post from a lawyer, Kyle E. Mitchell, who commented on the draft and, specifically, on the CLA. He outlined issues with wording and definition problems in that section of the draft. In particular, he noted that "contributor license agreement is not a legal term of art, but an industry term" and "is a bit fuzzy". This was clarified in the final draft, in section D.6, by removing the use of the CLA term and by explicitly mentioning the widely accepted norm for licenses: "inbound=outbound". So it seems that section D.6 is not really a problem: contributors do not need to necessarily delegate copyright ownership (as some CLAs require) when they make a contribution, unless otherwise noted by a repository-specific CLA.
An interesting concern he raised, however, was with how GitHub conducted the drafting process. A blog post announced the change on February 7th with a link to a form to provide feedback until the 21st, with a publishing deadline of February 28th. This gave little time for lawyers and developers to review the document and comment on it. Users then had to basically accept whatever came out of the process as-is.
Unlike every software project hosted on GitHub, the ToS document is not part of a Git repository people can propose changes to or even collaboratively discuss. While Mitchell acknowledges that "GitHub are within their rights to update their terms, within very broad limits, more or less however they like, whenever they like", he sets higher standards for GitHub than for other corporations, considering the community it serves and the spirit it represents. He described the process as:
[...] consistent with the value of CYA, which is real, but not with the output-improving virtues of open process, which is also real, and a great deal more pleasant.
Mitchell also explained that, because of its position, GitHub can have a major impact on the free-software world.
And as the current forum of preference for a great many developers, the knock-on effects of their decisions throw big weight. While GitHub have the wheel—and they’ve certainly earned it for now—they can do real damage.
In particular, there have been some concerns that the ToS change may be an attempt to further the already diminishing adoption of the GPL for free-software projects; on GitHub, the GPL has been surpassed by the MIT license. But Kuhn believes that attitudes at GitHub have begun changing:
GitHub historically had an anti-copyleft culture, which was created in large part by their former and now ousted CEO, Preston-Warner. However, recently, I've seen people at GitHub truly reach out to me and others in the copyleft community to learn more and open their minds. I thus have a hard time believing that there was some anti-copyleft conspiracy in this ToS change.
However, it seems that GitHub has actually been proactive in reaching out to the free software community. Kuhn noted that GitHub contacted the Conservancy to get its advice on the ToS changes. While he still thinks GitHub should fix the ambiguities quickly, he also noted that those issues "impact pretty much any non-trivial Open Source and Free Software license", not just copylefted material. When reached for comments, a GitHub spokesperson said:
While we are confident that these Terms serve the best needs of the community, we take our users' feedback very seriously and we are looking closely at ways to address their concerns.
There are now free-software alternatives to GitHub. GitLab.com, for example, does not seem to have similar licensing issues in its ToS and GitLab itself is free software, although based on the controversial open core business model. The GitLab hosting service still needs to get better than its grade of "C" in the GNU Ethical Repository Criteria Evaluations (and it is being worked on); other services like GitHub and SourceForge score an "F".
In the end, all this controversy might have been avoided if GitHub was generally more open about the ToS development process and gave more time for feedback and reviews by the community. Terms of service are notorious for being confusing and something of a legal gray area, especially for end users who generally click through without reading them. We should probably applaud the efforts made by GitHub to make its own ToS document more readable and hope that, with time, it will address the community's concerns.