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Update github-terms-of-service.md #311

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Nov 17, 2020
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27 changes: 13 additions & 14 deletions Policies/github-terms-of-service.md
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Expand Up @@ -32,11 +32,11 @@ Thank you for using GitHub! We're happy you're here. Please read this Terms of S
| [N. Disclaimer of Warranties](#n-disclaimer-of-warranties) | We provide our service as is, and we make no promises or guarantees about this service. **Please read this section carefully; you should understand what to expect.** |
| [O. Limitation of Liability](#o-limitation-of-liability) | We will not be liable for damages or losses arising from your use or inability to use the service or otherwise arising under this agreement. **Please read this section carefully; it limits our obligations to you.** |
| [P. Release and Indemnification](#p-release-and-indemnification) | You are fully responsible for your use of the service. |
| [Q. Changes to these Terms of Service](#q-changes-to-these-terms) | We may modify this agreement, but we will give you 30 days' notice of changes that affect your rights. |
| [Q. Changes to these Terms of Service](#q-changes-to-these-terms) | We may modify this agreement, but we will give you 30 days' notice of material changes. |
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Would a lawyer be willing to weigh in on the difference here?

For example:

  • Which of these phrases is more clearly defined in the law?
  • Which has broader scope?
  • Why might Github have changed such a subtle wording?

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We are making this change so that we are consistent in describing this concept, rather than using two different terms that could suggest we mean something different. We did not use one term or the other with an intention that one is broader than the other.

| [R. Miscellaneous](#r-miscellaneous) | Please see this section for legal details including our choice of law. |

### The GitHub Terms of Service
Effective date: April 2, 2020
Effective date: November 16, 2020


### A. Definitions
Expand Down Expand Up @@ -98,25 +98,25 @@ You agree that you will not under any circumstances violate our [Acceptable Use
You may create or upload User-Generated Content while using the Service. You are solely responsible for the content of, and for any harm resulting from, any User-Generated Content that you post, upload, link to or otherwise make available via the Service, regardless of the form of that Content. We are not responsible for any public display or misuse of your User-Generated Content.

#### 2. GitHub May Remove Content
We do not pre-screen User-Generated Content, but we have the right (though not the obligation) to refuse or remove any User-Generated Content that, in our sole discretion, violates any [GitHub terms or policies](/github/site-policy).
We have the right to refuse or remove any User-Generated Content that, in our sole discretion, violates any laws or [GitHub terms or policies](/github/site-policy). User-Generated Content displayed on GitHub for mobile may be subject to mobile app stores' additional terms.

#### 3. Ownership of Content, Right to Post, and License Grants
You retain ownership of and responsibility for Your Content. If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post; that you will only submit Content that you have the right to post; and that you will fully comply with any third party licenses relating to Content you post.

Because you retain ownership of and responsibility for Your Content, we need you to grant us — and other GitHub Users — certain legal permissions, listed in Sections D.4 — D.7. These license grants apply to Your Content. If you upload Content that already comes with a license granting GitHub the permissions we need to run our Service, no additional license is required. You understand that you will not receive any payment for any of the rights granted in Sections D.4 — D.7. The licenses you grant to us will end when you remove Your Content from our servers, unless other Users have forked it.

#### 4. License Grant to Us
We need the legal right to do things like host Your Content, publish it, and share it. You grant us and our legal successors the right to store, parse, and display Your Content, and make incidental copies as necessary to render the Website and provide the Service. This includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case Your Content is something like music or video.
We need the legal right to do things like host Your Content, publish it, and share it. You grant us and our legal successors the right to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case Your Content is something like music or video.
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One word archive makes a big difference here!

... improving our service also seems really broad


This license does not grant GitHub the right to sell Your Content or otherwise distribute or use it outside of our provision of the Service.
This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content outside of our provision of the Service, except that as part of the right to archive Your Content, GitHub may permit our partners to store and archive Your Content in public repositories in connection with the [GitHub Arctic Code Vault and GitHub Archive Program](https://archiveprogram.github.com/).
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In what sense is the Arctic Code Vault public? I know it's intended for public benefit, but it's also deep storage. Are there public mirrors online?

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It is public in the sense that other sentinent species of the Earth will make content of the Vault public in their societies after humans have destroyed each other and themselves, if the vault is not destroyed too ;)


#### 5. License Grant to Other Users
Any User-Generated 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 Content from your repositories in repositories they control).

If you set your pages and repositories to be viewed publicly, 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). You may grant further rights if you [adopt a license](/articles/adding-a-license-to-a-repository/#including-an-open-source-license-in-your-repository). 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.

#### 6. Contributions Under Repository License
Whenever you make a contribution to a repository containing notice of a license, you license your contribution under the same terms, and you agree that you have the right to license your contribution under those terms. If you have a separate agreement to license your contributions under different terms, such as a contributor license agreement, that agreement will supersede.
Whenever you add Content to a repository containing notice of a license, you license that Content under the same terms, and you agree that you have the right to license that Content under those terms. If you have a separate agreement to license that Content under different terms, such as a contributor license agreement, that agreement will supersede.
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What contributions have been ruled out by the change from "make a contribution" to "add content"? Would it cover IP (e.g. patentable algorithms) included in issue text?

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How about adding "Content" like comments/issues that are not explicitly mentioned in the license?

For example, the MIT License refers to software and associated documentation, which presumably does not include comments/issues/etc.

A legal opinion is probably needed here.

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Please see from https://github.blog/2020-10-15-updates-to-our-terms-of-service-and-our-privacy-statement/

Clarification, for greater license certainty, that the inbound=outbound license model applies to issues and comments submitted to a repository when changes are made in response to or including those issues and comments

The goal of this is for clarity that feedback, discussion, and code review can be used under the project license. Just like a pull request against the repository, this may or may not cover patents or other rights, depending on the license.


Isn't this just how it works already? Yep. This is widely accepted as the norm in the open-source community; it's commonly referred to by the shorthand "inbound=outbound". We're just making it explicit.

Expand All @@ -126,7 +126,7 @@ You retain all moral rights to Your Content that you upload, publish, or submit
To the extent this agreement is not enforceable by applicable law, you grant GitHub the rights we need to use Your Content without attribution and to make reasonable adaptations of Your Content as necessary to render the Website and provide the Service.

### E. Private Repositories
**Short version:** *You may have access to private repositories. We treat the content of private repositories as confidential, and we only access it for support reasons, with your consent, or if required to for security reasons.*
**Short version:** *We treat the content of private repositories as confidential, and we only access it as described in our Privacy Statement—for security purposes, to assist the repository owner with a support matter, to maintain the integrity of the Service, to comply with our legal obligations, if we have reason to believe the contents are in violation of the law, or with your consent.*

#### 1. Control of Private Repositories
Some Accounts may have private repositories, which allow the User to control access to Content.
Expand All @@ -135,15 +135,14 @@ Some Accounts may have private repositories, which allow the User to control acc
GitHub considers the contents of private repositories to be confidential to you. GitHub will protect the contents of private repositories from unauthorized use, access, or disclosure in the same manner that we would use to protect our own confidential information of a similar nature and in no event with less than a reasonable degree of care.

#### 3. Access
GitHub personnel may only access the content of your private repositories in the following situations:
- With your consent and knowledge, for support reasons. If GitHub accesses a private repository for support reasons, we will only do so with the owner’s consent and knowledge.
- When access is required for security reasons, including when access is required to maintain ongoing confidentiality, integrity, availability and resilience of GitHub's systems and Service.
GitHub personnel may only access the content of your private repositories in the situations described in our [Privacy Statement](/github/site-policy/github-privacy-statement#repository-contents).

You may choose to enable additional access to your private repositories. For example:
- You may enable various GitHub services or features that require additional rights to Your Content in private repositories. These rights may vary depending on the service or feature, but GitHub will continue to treat your private repository Content as confidential. If those services or features require rights in addition to those we need to provide the GitHub Service, we will provide an explanation of those rights.

#### 4. Exclusions
If we have reason to believe the contents of a private repository are in violation of the law or of these Terms, we have the right to access, review, and remove them. Additionally, we may be [compelled by law](/github/site-policy/github-privacy-statement#for-legal-disclosure) to disclose the contents of your private repositories.
Additionally, we may be [compelled by law](/github/site-policy/github-privacy-statement#for-legal-disclosure) to disclose the contents of your private repositories.

GitHub will provide notice regarding our access to private repository content, unless [for legal disclosure](/github/site-policy/github-privacy-statement#for-legal-disclosure), to comply with our legal obligations, or where otherwise bound by requirements under law, for automated scanning, or if in response to a security threat or other risk to security.

### F. Copyright Infringement and DMCA Policy
If you believe that content on our website violates your copyright, please contact us in accordance with our [Digital Millennium Copyright Act Policy](/articles/dmca-takedown-policy/). If you are a copyright owner and you believe that content on GitHub violates your rights, please contact us via [our convenient DMCA form](https://github.com/contact/dmca) or by emailing copyright@github.com. There may be legal consequences for sending a false or frivolous takedown notice. Before sending a takedown request, you must consider legal uses such as fair use and licensed uses.
Expand Down Expand Up @@ -286,9 +285,9 @@ If you have a dispute with one or more Users, you agree to release GitHub from a
You agree to indemnify us, defend us, and hold us harmless from and against any and all claims, liabilities, and expenses, including attorneys’ fees, arising out of your use of the Website and the Service, including but not limited to your violation of this Agreement, provided that GitHub (1) promptly gives you written notice of the claim, demand, suit or proceeding; (2) gives you sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that you may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases GitHub of all liability); and (3) provides to you all reasonable assistance, at your expense.

### Q. Changes to These Terms
**Short version:** *We want our users to be informed of important changes to our terms, but some changes aren't that important — we don't want to bother you every time we fix a typo. So while we may modify this agreement at any time, we will notify users of any changes that affect your rights and give you time to adjust to them.*
**Short version:** *We want our users to be informed of important changes to our terms, but some changes aren't that important — we don't want to bother you every time we fix a typo. So while we may modify this agreement at any time, we will notify users of any material changes and give you time to adjust to them.*

We reserve the right, at our sole discretion, to amend these Terms of Service at any time and will update these Terms of Service in the event of any such amendments. We will notify our Users of material changes to this Agreement, such as price changes, at least 30 days prior to the change taking effect by posting a notice on our Website. For non-material modifications, your continued use of the Website constitutes agreement to our revisions of these Terms of Service. You can view all changes to these Terms in our [Site Policy](https://github.com/github/site-policy) repository.
We reserve the right, at our sole discretion, to amend these Terms of Service at any time and will update these Terms of Service in the event of any such amendments. We will notify our Users of material changes to this Agreement, such as price increases, at least 30 days prior to the change taking effect by posting a notice on our Website or sending email to the primary email address specified in your GitHub account. Customer's continued use of the Service after those 30 days constitutes agreement to those revisions of this Agreement. For any other modifications, your continued use of the Website constitutes agreement to our revisions of these Terms of Service. You can view all changes to these Terms in our [Site Policy](https://github.com/github/site-policy) repository.
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The changing to increases is one clear change that I don't think requires a lot of legal knowledge to know it benefits the user!

Thank you (for the clarify and favorability)! :)


We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website (or any part of it) with or without notice.

Expand Down