The Internet saw Github's new TOS yesterday and collectively shrugged.
I don't have any lawyers, but the way Github's new TOS is written, I feel I'd need to consult with lawyers to understand how it might affect the license of my software if I hosted it on Github.
And the license of my software is important to me, because it is the legal framework within which my software lives or dies. If I didn't care about my software, I'd be able to shrug this off, but since I do it seems very important indeed, and not worth taking risks with.
If I were looking over the TOS with my lawyers, I'd ask these questions...
4 License Grant to Us
This seems to be saying that I'm granting an additional license to my software to Github. Is that right or does "license grant" have some other legal meaning?
If the Free Software license I've already licensed my software under allows for everything in this "License Grant to Us", would that be sufficient, or would my software still be licenced under two different licences?
There are violations of the GPL that can revoke someone's access to software under that license. Suppose that Github took such an action with my software, and their GPL license was revoked. Would they still have a license to my software under this "License Grant to Us" or not?
"Us" is actually defined earlier as "GitHub, Inc., as well as our affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees". Does this mean that if someone say, does some brief contracting with Github, that they get my software under this license? Would they still have access to it under that license when the contract work was over? What does "affiliates" mean? Might it include other companies?
Is it even legal for a TOS to require a license grant? Don't license grants normally involve an intentional action on the licensor's part, like signing a contract or writing a license down? All I did was loaded a webpage in a browser and saw on the page that by loading it, they say I've accepted the TOS. (I then set about removing everything from Github.)
Github's old TOS was not structured as a license grant. What reasons might they have for structuring this TOS in such a way?
Am I asking too many questions only 4 words into this thing? Or not enough?
Your Content belongs to you, and you are responsible for Content you post even if it does not belong to you. However, we need the legal right to do things like host it, publish it, and share it. 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.
If this is a software license, the wording seems rather vague compared with other software licenses I've read. How much wiggle room is built into that wording?
What are the chances that, if we had a dispute and this came before a judge, that Github's laywers would be able to find a creative reading of this that makes "do things like" include whatever they want?
That means you're giving us the right to do things like reproduce your content (so we can do things like copy it to our database and make backups); display it (so we can do things like show it to you and other users); modify it (so our server can do things like parse it into a search index); distribute it (so we can do things like share it with other users); and perform it (in case your content is something like music or video).
Suppose that Github modified my software, does not distribute the modified version, but converts it to javascipt code and distributes that to their users to run as part of the process of rendering their website. If my software is AGPL licensed, they would be in violation of that license, but doesn't this additional license allow them to modify and distribute my software in such a way?
This license does not grant GitHub the right to sell your Content or otherwise distribute it outside of our Service.
I see that "Service" is defined as "the applications, software, products, and services provided by GitHub". Does that mean at the time I accept the TOS, or at any point in the future?
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?
5 License Grant to Other Users
Any Content you post publicly, including issues, comments, and contributions to other Users' repositories, may be viewed by others. By setting your repositories to be viewed publicly, you agree to allow others to view and "fork" your repositories (this means that others may make their own copies of your Content in repositories they control).
Let's say that company Foo does something with my software that violates its GPL license and the license is revoked. So they no longer are allowed to copy my software under the GPL, but it's there on Github. Does this "License Grant to Other Users" give them a different license under which they can still copy my software?
The word "fork" has a particular meaning on Github, which often includes modification of the software in a repository. Does this mean that other users could modify my software, even if its regular license didn't allow them to modify it or had been revoked?
How would this use of a platform-specific term "fork" be interpreted in this license if it was being analized in a courtroom?
If you set your pages and repositories to be viewed publicly, 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. You may grant further rights if you adopt a license.
This paragraph seems entirely innocious. So, what does your keen lawyer mind see in it that I don't?
How sure are you about your answers to all this? We're fairly sure we know how well the GPL holds up in court; how well would your interpretation of all this hold up?
What questions have I forgotten to ask?
And finally, the last question I'd be asking my lawyers:
What's your bill come to? That much? Is using Github worth that much to me?