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OSS licences vs. ToS: grants of rights (#7) #52

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OSS licences vs. ToS: grants of rights (#7) #52

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7 changes: 5 additions & 2 deletions Policies/github-terms-of-service.md
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Expand Up @@ -46,6 +46,7 @@ Effective date:
4. “The User,” “You,” and “Your” refer to the individual person, company, or organization that has visited or is using the Website or Service; that accesses or uses any part of the account; or that directs the use of the account in the performance of its functions. A User must be at least 13 years of age. Special terms may apply for business or government accounts (See [Section B(4): Additional Terms](#4-additional-terms)).
5. “GitHub,” “We,” and “Us” refer to GitHub, Inc., as well as our affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees.
6. “Content” refers to content featured or displayed through the Website, including without limitation text, data, articles, images, photographs, graphics, software, applications, designs, features, and other materials that are available on the Website or otherwise available through the Service. "Content" also includes Services. “User-Generated Content” is Content, written or otherwise, created or uploaded by our Users. "Your Content" is Content that you create or own. “Paid Content” is Content only available to Users who are participating in a payment plan, including private repositories.
7. “Free Licence” refers to a Free / Open Source / Open Knowledge / Ⓕ Copyfree licence. For practicality reasons, the set of Free Licences is comprised of the licences listed at [ifrOSS](http://www.ifross.org/en/license-center), [Debian](https://wiki.debian.org/DFSGLicenses), [OKFN](http://opendefinition.org/licenses/), [OSI](https://opensource.org/licenses/alphabetical), [FSF](https://www.gnu.org/licenses/license-list.html), [the Copyfree Initiative](http://copyfree.org/standard/licenses), and/or the [list of licences approved for Free Cultural Works](http://freedomdefined.org/Licenses), explicitly excluding those listed on these sites as not Free (such as those under the headings “B. Other Software Licenses”, “D. Other Licenses for Fair Use of Immaterial Goods”, “DFSG-incompatible”, “Non-Conformant Licenses”, “Nonfree Software Licenses”, “Nonfree Documentation Licenses”, “Licenses for Works stating a Viewpoint”, “Invariant sections” in the linked lists).
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Is there an existing term for this, or is “Free License” something we're making up for this ToS? What happens to GitHub and its users if one of the organizations you cite changes its criteria? Also note that the pages you link for approved licenses may not be complete. For example, the OSI has approved the AFL-1.0 (since superseded by the AFL-3.0), but the AFL-1.0 currently shows up on neither of the OSI's license-list pages.

I don't see a way around that short of defining what GitHub needs and what other users need (e.g. “free redistribution” for forking public repositories and “derived works” for creating public branches to be used in pull requests) or explicitly whitelisting licenses which GitHub considers sufficient.

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The list of lists is not perfect. However, it is a start, it doesn’t contain any false positives, it doesn’t need GitHub to finally disclose what rights their lawyers think they precisely need, and it fixes the problem the new ToS introduced in February for most OSS projects.

Do this now, improve upon it in the background in parallel so a future ToS update will see your improvements. (I’m all for the idea of requirement-based, but you also have to state what those licences can not require from users or GitHub, and you will have to list approved licences somewhere because putting this down on every user will be ridiculously hard.) Also, note that forks do not get “free redistribution”, only inside GitHub, by the default licence.

For now, this change will make a couple of licences “first class citizens”, but for OSS stuff, that’s okay.

The organisations are known to either not change the criteria, or only in the same spirit. I think we can believe that anything that passes one set of those criteria and does not fail others’ sets in those list is “good enough” to be promoted to first-class citizen and thus explicitly excluded from the extra licence clause.

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The list of lists is not perfect. However, it is a start, it doesn’t contain any false positives, it doesn’t need GitHub to finally disclose what rights their lawyers think they precisely need, and it fixes the problem the new ToS introduced in February for most OSS projects.

Anything that gives us a list of already-sufficiently-free licenses would be very useful. But @nsqe doesn't want a local list of licenses, and delegation like you're proposing here seems dicey in the absence of a clear definition of the rights GitHub needs granted.

Also, note that forks do not get “free redistribution”, only inside GitHub, by the default licence.

Right. But are any of the license-classification groups you link making that distinction?

I think we can believe that anything that passes one set of those criteria and does not fail others’ sets in those list is “good enough” to be promoted to first-class citizen and thus explicitly excluded from the extra licence clause.

As far as users are concerned, I'd rather look at the project license directly instead of going through the ToS (assuming those are even binding). So it doesn't matter as much to me.

GitHub, on the other hand, is doing a lot of automatic stuff based on the ToS, and they might be more cautious about delegating authority to so many external organizations.


### B. Account Terms
**Short version:** *A human must create your account; you must be 13 or over; you must provide a valid email address; and you may not have more than one free account. You alone are responsible for your account and anything that happens while you are signed in to or using your account. You are responsible for keeping your account secure.*
Expand Down Expand Up @@ -139,14 +140,16 @@ You retain ownership of and responsibility for Content you create or own ("Your
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. Unless the entire content of a repository is available under at least one Free Licence, 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.

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.

#### 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.
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) unless the entire content of a repository is available under at least one Free Licence. By [adopting a Free Licence](/articles/adding-a-license-to-a-repository/#including-an-open-source-license-in-your-repository) you can grant Users further rights.

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.
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