Does Github's License Grant clause in the ToS make one legally liable?

Question

The popular Git Repository hosting service used by many open-source projects Github recently adopted a new Terms of Service.

I am puzzled by the implications of the License Grant Section. Which is reproduced below for reference:

4. License Grant to Us

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.

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).

This license does not grant GitHub the right to sell your Content or otherwise distribute it outside of our Service.

It also includes an additional License Grant to Github's Users.

Particularly content that is posted to Github does not always belong to one user - it may for example be a project where many contributions from different collaborators were made under one the GPL or BSD licenses. All of which include for example, required attribution.

While I or another user may personally may be in a position to give Github and Github User's a License Grant for my work; as far as I understand I can do no such thing on behalf of other users that made their contributions under the GPL or BSD family of licenses (unless a CLA specified that one may grant additional licenses beyond those under which they made their contributions). Since Github appears to indemnify themselves -

you are responsible for Content you post even if it does not belong to you.

Does that mean that Github users uploading GPL or BSD licensed projects whose contributors have not explicitly given Github or Github User's License Grants as per the ToS are doing something potentially illegal?

Answer 1

As far as I can tell, whenever GitHub redistributes code, it adheres to all of the requirements of the GPL/BSD etc. For example, it never gives away code without including the license text, and it doesn't claim to add unpermitted restrictions to the code.

The section you're concerned about is this:

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).

That section isn't worded very precisely, but I understand this to mean they want to reproduce your content in full, not just the code without the license text attached. They want to display your content in full, as you provided it. They want to modify it internally (i.e. they are not redistributing this modified form) in order to allow searching. To the extent that they display code-snippets as search results, that is likely defensible as fair use (search engines are frequently cited as examples of successful fair use defenses).

GitHub appears to be acting consistently with the GPL when it reproduces, displays, modifies, and distributes code that you upload. If I'm correct about these facts then nothing that GitHub does with the code goes beyond what the many contributors to a GPL project have explicitly permitted, or what is otherwise permitted by fair use law.

If you had some code with a more restrictive license, you might not be able to simultaneously comply with that restrictive license and GitHub's License Grant. Consider the scenario where you have some code that is licensed exclusively to you, and you are not given permission to reproduce or distribute it. In that scenario, the code's license prevents you from agreeing to GitHub's request for a license grant.

Answer 2

All users of Github are subject to the ToS so all users who upload are agreeing to this license with Github. This is independent and parallel to any license they give to the public at large.