For example, my informal and cursory analysis of the article:
> Section D.7 requires the person uploading content to waive any and all attribution rights.
It does not. The Github license requires a waiver of the requirement of attribution insofar as such waiver is needed for Github to do what it already does e.g. as the license indicates, provide search results without attribution.
Further, only Github has been given this waiver. Anyone else is still held to any requirement of attribution.
> section D.5 requires ... the right to “reproduce your Content solely on GitHub as permitted through GitHub's functionality”, with no further restructions attached; this is a killer for, I believe, any and all licences falling into the “copyleft” category
While D.5 does permit performing, using, and displaying of a work, it permits reproducing on GitHub only. Any copying from GitHub not granted by way of another license would be a violation of the author's copyright.
Use, performance, or displaying in the absence of a right to reproduce strikes me as a rather narrow set of rights.
I stand to be corrected, but I see nothing sinister, nefarious, or unwarranted by GitHub.
YMMV. If you need legal advice, retain a lawyer.
I think you've convinced me. I was concerned that the use, performance or display may be a problem... but thinking it through, I do not really see this as an issue with most copyleft licenses. They are usually tied to distribution of code - which is reproduction.
I echo your disclaimer. If you need a lawyer, get one.
If someone asks me my opinion about an engineering or management issue they're facing, I'll give it to them knowing that I don't know the complete set of facts and they should take my opinion with a grain of salt. I might be missing important context and I might just be wrong. If I ask someone else advice on any topic, I assume that there is an implicit disclaimer. Is there something fundamentally different about the law? Is it because lawyers are in the business of giving advice?
Anyway, appreciate you guys weighing in and hope you do it more frequently :).
Because an attorney-client relationship is created when the client reasonably believes it to have been created. As a result, you have to be really fucking clear that people are not your clients because, when making the determination of whether someone has reasonably determined that someone is their lawyer, courts look to what the average bloke would think - i.e., a total dumdum. So you really have to hit people over the head with the fact that no, you are not their lawyer.
So, the second part of this is that when an attorney-client relationship is created, the attorney has a tremendous amount of duty to the client, and, if the client acts on the advice of the attorney and gets results they do not like, they can sue the attorney for malpractice.
> If someone asks me my opinion about an engineering or management issue they're facing, I'll give it to them knowing that I don't know the complete set of facts and they should take my opinion with a grain of salt.
Are you a licensed Professional Engineer? If so, for the love of Odin's beard, stop giving informal advice, as you are exposing yourself to professional liability.
Licensed professions - accounting, medicine, law, professional engineering - have extremely high duties of care to their clients. They are exposed to malpractice liability when things go wrong. They have ethical obligations. It can be extremely hard to fire delinquent or terrible clients.
To put it a completely different way: lawyers give advice as their job. There is no such thing as "informal advice" from a lawyer, the same where there is no such thing as a "pick up game" with an NBA player. It is their primary occupation. I don't do it for free - I charge a pretty stiff hourly rate. And every time I take on a client, it has impacts on my firm's malpractice insurance. In fact, I cannot take on clients without the explicit approval of the managing partner at my law firm - I get his written approval for every single one. To make it clear, the managing partner is the guy who, if there was a war between all the lawyers, gets to wear the biggest, fanciest hat. So, no, I am not just going to do the thing I do for my day job as a favor to someone else, any more than your computer programmer friend wants to fix your iphone.
Does that go some distance to answering your question?
The rest of your post is fascinating, and it made me understand this disclaimer much better; but surely this analogy is misleading.
If I've understood you correctly, there is, legally (or perhaps even by definition?), no such thing as informal advice from a lawyer; but surely it is only conventional that you will probably be in a pick-up game with an NBA player, as no regulation or law prohibits it. (Indeed, by analogy with any field whose practitioners tend to be passionate about it, I would assume that it is quite common for NBA players to play pick-up games with one another.)
Or perhaps, as someone ignorant of all things sports, I have missed the point of the analogy.
> Indeed, by analogy with any field whose practitioners tend to be passionate about it, I would assume that it is quite common for NBA players to play pick-up games with one another.
I would be surprised, specifically for the 'injury' reason above. They don't play pick up games - they go to practice - which is supervised and has medical personnel right there. But who knows. That is speculation.
But from a lawyer or an engineer that's not really okay, because even if you say I'm not giving your question my full attention and yeah, I think you'll be okay with just a simple rebar frame and no concrete for your bridge, but don't quote me on that and get a professional's advice ... the asker will be more confident, because he/she just did that, asked a professional, even if not in its proper capacity - and when bridges go down people get angry.
Though thinking about it, people usually get very angry at street ball too!
At this point they can take it easy and recommend literally anything since the most painful ramifications have been lifted. If you happen to score against an NBA player in pick-up you might be proud but you'd be dishonest to suggest that this means you have professional skill.
Related question, "... if the client acts on the advice of the attorney and gets results they do not like, they can sue the attorney for malpractice..."
Does that really happen a lot, or is it just something that they drill into you in law school? I never hear about attorney malpractice suits.
And, importantly, if you are a litigator - as in, someone who sues people for a living - your clients are already demonstrably the sorts of people who are willing to sue when they are pissed off. It is not unreasonable to assume that if things go wrong in these circumstances, people turn on their lawyers.
_I am not your laywer_
Consider your IP stolen.
Compare with the following: I am a software engineer, here's my take on this or that technical matter, but don't apply this sample snippet as is in production, also I'm waiving all responsibility, like MIT-license style.
It's not that you shouldn't listen to random professional folks on the internet, it's that when they informally give some opinion on a matter, they may very well be missing some key part of your very specific context, and while common sense just would tell you not to take it as is and that you could hold them liable for anything, J. Random Bloke statistically lacks common sense so one has to spit proactive waiver statements telling people to act on their own responsibility or take advice in a proper, formal client-to-professional context.
What is the threshold for a reasonable impression of the relationship? Could random advice on an internet forum really trigger it?
"Reasonable belief" is the threshold. There's a whole bunch of case law, of course, on how that applies to specific circumstances, but you aren't going to get a short answer other than the actual standard.
> Could random advice on an internet forum really trigger it?
Maybe; lawyers tend to be fairly conservative about the risk, because the consequences of professional misconduct are potentially quite serious career impacts.
Anyone else desperately want to see this happen?
Is this because HN is located in the US? Would two American citizens have this relationship via a French site?
Or how about "I'm not formally signing off on this statement as a product of my legal-professional persona, but you're free to take what I just wrote to another lawyer and get them to vouch for its veracity, which they probably will"?
I hear that in military and political contexts all the time—"I can tell you this as a friend, but not in my role as X, so go find some other X who's allowed to speak on it if you need formalization"—but I never hear it from lawyers. It always seems to be phrased more as "what I'm about to write is probably wrong and you should go to get your own lawyer who will tell you something entirely different."
I say that all the time. I am sure it is in my comment history. E.g:
Please do note that D.5 also covers “reproduce”, which _is_ “distribution of code”, _and_ that I address this point in my article.
So, in short: If you need to give lots of money away, get a lawyer, but even then you’re not getting what you’re paying for. They also only cook with water, they also are just erring human meatbags.
The language is as follows:
>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).
>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.
"Reproduce" is limited by "solely on github." I simply disagree with your analysis. I've read many hundreds and written dozens of software licenses - this is what I do for a living. Your argument, up to this point, is unpersuasive. I am always willing to change my opinion based on a persuasive argument or evidence, but you are not providing that - you are simply saying I am commenting on it "demeaningly." That is not a "responsive," argument, and, in this case, it is also false.
Have you asked any lawyers about this? Or are you just relying on your interpretation?
If the license under which I got the code from someone else specifies that I can only distribute the code or snippets if I am including the license header, then that causes an issue.
(I asked a family member who is a lawyer about that, and they agreed that this seems to be a problem. I’ve tried to get approval from all authors of the code I used to be on the safe side).
Specifically, the terms under which I licensed the code I put on GitHub from a third party include
> provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice; keep intact all notices stating that this License and any non-permissive terms added in accord with section 7 apply to the code; keep intact all notices of the absence of any warranty; and give all recipients a copy of this License along with the Program.
[EDIT] Due to "you are submitting too fast, please slow down", I will only answer questions on this comment via email.
The whole problem is that I, as an uploader of code that I did not write, do not have the authority to make that waiver.
If GitHub then does things with that code that the license doesn't allow, it was GitHub that is doing something it's not allowed to - unless, as uploader, you've agreed to indemnify GitHub for this sort of thing.
In particular, "store and display your Content [..] as necessary to render the Website and provide the Service" is rather broad given that the functionality included in the "Service" (defined as "the applications, software, products, and services provided by GitHub") can change at any time, without notice.
If I go and fork some random open source project off Sourceforge or whatever, I cannot publish it on GitHub as I do not have the original author's permission to grant GitHub these rights.
Overall I feel this was a pretty poor move by GitHub.
The OP doesn't mention D.4 much. The first paragraph of D.4 seems fine to me. But I worry the "clarification" (2nd paragraph) in D.4 could potentially cause problems:
> 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).
Is "modify it" the same as "create derivative works"? If so, seems you've granted Github the right to "modify it" and "distribute it" potentially without any restrictions.
Assuming github does have feature(s) that require additional privileges to the source beyond what the open source license provides, doesn't that preclude hosting any project where any single one of the contributors don't contribute via github? (ignoring CLAs and work for hire.) The uploader is unauthorized to grant a wider license to github than they received the code under, right?
I wouldn't say they're being sinister, but I don't think that was the point. The point was that their cover-your-ass move is preventing a large number of open source projects from being hosted on the service in compliance with the ToS.
Yes it does. If there's a license that says "you must not make backups of the code on Thursdays", then hosting it on github would be incompatible with the license. So is hosting other people's non-open-source code in a public repo. Github's ToS put the responsibility of checking that the compatibility of the license and github features on whoever uploads the code.
> The point was that their cover-your-ass move is preventing a large number of open source projects from being hosted on the service in compliance with the ToS.
Well, there are features that Github wants to have on public repos, for example public code search with short snippets, and the "fork" button. Their ToS has to "cover their ass" for these features, their lawyers would throw a fit if they kept the features without asking for permission in the ToS.
If there are OSS licenses that are not compatible with these features, then either the uploader or github was breaking copyright laws already.
But I'm not convinced that its anywhere as big deal as the author of the article makes it seem.
So github has public code search, which shows 5 line snippets of code with a link back to the repo. Does this satisfy LPPL's "code must be distributed unmodified" rule? Is this enough attribution to satisfy CC-BY? A reasonable person would say yes, because you can just click on the link to get to the whole repo with the full codebase and authors.txt file.
But github isn't going to take the legal responsibility of checking each license for these questions, people uploading the code will have to do it themselves. (Also, github has no way of checking that the person uploading the code actually has the right to put the license.txt file on the code).
This convinced me.
I can release my code under GPL, and then sell it to someone else under different terms. It's my code, and I have copyright. I don't have to give the same permissions to everyone.
Likewise, just because I give Github certain permissions doesn't mean I have given the same permission to everyone else.
edit: I don't think forked repos are much of a problem. They're already on Github, so they already accepted the ToS. if they didn't, that's not your problem as a forkee. Unless the code was forked before this new ToS. Copyright is so messy.
Does a link to the source repository (which grants easy access to the usernames of all contributors and the full content of all files in the repo) not count as attribution?
So I need to find a lawyer and pay him $1000+ so I can see if GitHub is safe to use?
I guess I'll just stick with storing projects on my computer at home and skip this cloud-based stuff. I can't afford to retain a lawyer and consult with him for everything I do with code online.
If you grant Github a right to reproduce your IP, but no further rights, do people have a right to view Github's reproduction of your IP?
Any (informal) opinion on the validity, according to the new ToS, of mirroring third-party F/LOSS projects on GitHub (ones distributed under GPL, MIT or BSD)?
Do I need to get the permissions from each author of the work to upload it, above what Free Software licences already allow?
I _am_ working with them to get it fixed, but they enacted the new terms prematurely, so _currently_ the mess is there.
Meta question here. Is it necessary to say "I am not a lawyer...if you need legal advice, retain a lawyer."? Is that statement really legally protecting you? Is it intended to encourage the reader to take you less seriously? I'm having trouble not seeing this statement as a cargo cult prefix/postfix to commenting on legal issues, and if it's not really necessary, it seems more tasteful to me to leave it out.