I woke this morning to Thorsten claiming the new GitHub Terms of Service could require the removal of Free software projects from it. This was followed by joeyh removing everything from github. I hadn’t actually been paying attention, so I went looking for some sort of summary of whether I should be worried and ended up reading the actual ToS instead. TL;DR version: No, I’m not worried and I don’t think you should be either.
First, a disclaimer. I’m not a lawyer. I have some legal training, but none of what I’m about to say is legal advice. If you’re really worried about the changes then you should engage the services of a professional.
The gist of the concerns around GitHub’s changes are that they potentially circumvent any license you have applied to your code, either converting GPL licensed software to BSD style (and thus permitting redistribution of binary forms without source) or making it illegal to host software under certain Free software licenses on GitHub due to being unable to meet the requirements of those licenses as a result of GitHub’s ToS.
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. There are sadly too many people who upload code there without a license, meaning that technically no one can do anything with it. Don’t do this people; make sure that any project you put on GitHub has some sort of license attached to it (don’t write your own - it’s highly likely one of Apache/BSD/GPL will suit your needs) so people know whether they can make use of it or not. “I don’t care” is not a valid reason not to do this.
Section D, relating to user generated content, is the one causing the problems. It’s possibly easiest to walk through each subsection in order.
D1 says GitHub don’t take any responsibility for your content; you make it, you’re responsible for it, they’re not accepting any blame for harm your content does nor for anything any member of the public might do with content you’ve put on GitHub. This seems uncontentious.
D2 reaffirms your ownership of any content you create, and requires you to only post 3rd party content to GitHub that you have appropriate rights to. So I can’t, for example, upload a copy of ‘Friday’ by Rebecca Black.
Thorsten has some problems with D3, where GitHub reserve the right to remove content that violates their terms or policies. He argues this could cause issues with licenses that require unmodified source code. This seems to be alarmist, and also applies to any random software mirror. The intent of such licenses is in general to ensure that the pristine source code is clearly separate from 3rd party modifications. Removal of content that infringes GitHub’s T&Cs is not going to cause an issue.
D4 is a license grant to GitHub, and I think forms part of joeyh’s problems with the changes. It affirms the content belongs to the user, but grants rights to GitHub to store and display the content, as well as make copies such as necessary to provide the GitHub service. They explicitly state that no right is granted to sell the content at all or to distribute the content outside of providing the GitHub service.
This term would seem to be the minimum necessary for GitHub to ensure they are allowed to provide code uploaded to them for download, and provide their web interface. If you’ve actually put a Free license on your code then this isn’t necessary, but from GitHub’s point of view I can understand wanting to make it explicit that they need these rights to be granted. I don’t believe it provides a method of subverting the licensing intent of Free software authors.
D5 provides more concern to Thorsten. It seems he believes that the ability to fork code on GitHub provides a mechanism to circumvent copyleft licenses. I don’t agree. The second paragraph of this subsection limits the license granted to the user to be the ability to reproduce the content on GitHub - it does not grant them additional rights to reproduce outside of GitHub. These rights, to my eye, enable the forking and viewing of content within GitHub but say nothing about my rights to check code out and ignore the author’s upstream license.
D6 clarifies that if you submit content to a GitHub repo that features a license you are licensing your contribution under these terms, assuming you have no other agreement in place. This looks to be something that benefits projects on GitHub receiving contributions from users there; it’s an explicit statement that such contributions are under the project license.
D7 confirms the retention of moral rights by the content owner, but states they are waived purely for the purposes of enabling GitHub to provide service, as stated under D4. In particular this right is revocable so in the event they do something you don’t like you can instantly remove all of their rights. Thorsten is more worried about the ability to remove attribution and thus breach CC-BY or some BSD licenses, but GitHub’s whole model is providing attribution for changesets and tracking such changes over time, so it’s hard to understand exactly where the service falls down on ensuring the provenance of content is clear.
There are reasons to be wary of GitHub (they’ve taken a decentralised revision control system and made a business model around being a centralised implementation of it, and they store additional metadata such as PRs that aren’t as easily extracted), but I don’t see any indication that the most recent changes to their Terms of Service are something to worry about. The intent is clearly to provide GitHub with the legal basis they need to provide their service, rather than to provide a means for them to subvert the license intent of any Free software uploaded.