Do GitHub's updated terms of service conflict with copyleft?

GitHub recently updated their terms of service (ToS). Users of the site are raising many concerns over the new terms, fearing that the ToS could be incompatible with the copyleft licenses on works uploaded to GitHub. In particular, section D of the new terms, which handles rights granted to GitHub and GitHub users, makes many hackers very uncomfortable.

Section D.4 states, "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. " At first glance that might appear to grant permissions on your work without the concomitant protective guarantees found in copyleft licenses like the GNU General Public License (GPL). Users who care about ensuring that their software never becomes proprietary would not want to give such unconditional permission. And those uploading works that incorporate third-party copylefted code may not even be able to grant such permissions.

But licenses like the GNU GPL already give the necessary permissions to make, use, and modify local copies of a work. Are the new GitHub ToS asking for more than that? It's not fully clear. While the grant language could fit within the scope of the GPL, other words used in the section like "share" or "distribute" could be understood to mean something that wouldn't line up with the GPL's terms.

We find a similar situation in D.5 of the ToS, which states, "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." Again, looking at the terms, one could get the impression that GitHub is asking you to grant unconditioned permissions on your work, this time to other users of GitHub. But once more, licenses like the GPL already allow users to download a covered work and make their own local modifications. It isn't clear that GitHub is asking for anything more than that. Further to the point, the new terms do not appear to be radically different from those found in the previous ToS.

We understand why users are concerned; the terms are difficult to parse. This is a general problem with terms of service and end-user license agreements. With the protections provided by copyleft licenses at risk, users are particularly cautious. Because it's highly unlikely that GitHub intended to destroy their business model and user base, we don't read the ambiguity in the terms as granting or requiring overly broad permissions outside those already granted by the GPL. It would be inconsistent with changes they made last year on choosealicense.com to treat copyleft better. The relevant sections of the ToS seem to be just restatements of typical free license terms. But some added clarity—to say that if the uploaded work already comes with a license granting GitHub the permissions it needs to run its service, no additional license is required—would go a long way towards quelling the confusion, and we hope GitHub will do another revision soon to add it.

If you are concerned, then by all means stop uploading your code to GitHub. GNU previously granted GitHub a grade of "F" according to its Ethical Repository Criteria, for a number of reasons important to those seeking to have their freedom respected as users and to respect the freedom of others, including that important functionality on the site requires the use of proprietary JavaScript.

The FSF has been in contact with GitHub about both the ToS and the other software freedom issues. We will continue to do what we can to get the ToS ambiguities clarified, to remove doubts about their compatibility with the important protections provided by copyleft licenses. Here's what you can do to help:

• Use an ethical repository for your hosting needs.
• Contact GitHub to share your concerns.
• Support our work on ensuring there are freedom respecting hosting services by making a donation or becoming an associate member.