Not a lawyer but there’s something incredibly subtle here. By only using content on GitHub, GitHub can ensure that every user has agreed to this term specifically:
> If you are uploading Content you did not create or own, you are responsible for ensuring that the Content you upload is licensed under terms that grant these permissions to other GitHub Users.
So code that has been uploaded to GitHub by non-GitHub employees does have a “color” to it (to quote a great blog post on IP law that I can’t find right now) that other instances of the repository under identical licenses on other hosting services do not - because in theory the uploader assumes some responsibility for any dispute!
Whether this “color” has significant legal merit is beyond my understanding, but I have no doubt it is a factor in their approach.
Not clear to me how it’s supposed to immunize Copilot from copyright claims, though I can see how it’ll justify its training process.
There is a vague supposition widely believed that NN weights do no longer contain training data, and thus the trainee holds full copyright, but that won’t stand when the NN returns excerpts from said training data. Then it just becomes an unattributed copy, and should be subject to takedowns.
But "these permissions" are listed there explicitly:
> you grant each User of GitHub a nonexclusive, worldwide license to use, display, and perform Your Content through the GitHub Service and to reproduce Your Content solely on GitHub as permitted through GitHub's functionality (for example, through forking)
There is no mention of making derivations or anything that looks like it could cover for CoPilot.
If M$ can parse and index code, they are able to do the same with sofware licenses and skip the projects that forbid this behaviour in robots.txt fashion.
> If you are uploading Content you did not create or own, you are responsible for ensuring that the Content you upload is licensed under terms that grant these permissions to other GitHub Users.
https://docs.github.com/en/site-policy/github-terms/github-t...
And those users indemnify GitHub, too.
So code that has been uploaded to GitHub by non-GitHub employees does have a “color” to it (to quote a great blog post on IP law that I can’t find right now) that other instances of the repository under identical licenses on other hosting services do not - because in theory the uploader assumes some responsibility for any dispute!
Whether this “color” has significant legal merit is beyond my understanding, but I have no doubt it is a factor in their approach.