Re: RFC: criteria A4 should be a C-class criteria

[bill-auger]

i cant claim to know the answer; but i have done some research -
the implications of this are rather significant, and people
should want to know

for the purpose of this list though, whether or not the TOS
allows downloading unlicensed works, is irrelevant - the fact
is, that people are downloading tarballs, and making VCS clones
which they have no formal license to - either way, it is
unethical, unless the full implications are clearly explained to
users; and either way, the service operators are responsible for
the confusion (or trick, as the case may be) - it would probably
take a lawyer to fully de-tangle those TOS; but i figured that
this list would be the most appropriate to discuss and
investigate it - if my suspicions are accurate, i think it
should become an essential criteria

what i do know, it goes back some years, from when i was trying
to convince github to add something to their licensing guide,
which would mention that people must not choose the 'no-license'
option, if they want their code to be used and shared legally -
at the time, it mentioned nothing about  the 'no-license' option
- it gave absolutely no suggestion of why anyone should choose a
license - they rejected most of my changes; but they kept the
one sentence which made that point clear - something like: "if
you want people to be able to use and share your software, you
must choose a license" - if they believed that the TOS already
allowed for that, then they could have rejected that sentence
also, with an excuse lie: "a license is not needed for that -
our TOS grants everyone an implicit license to use and share" -
i did not get any such response; and im quite certain that their
TOS does not grant anyone a license to use, copy, or distribute
- users always get the license from the author (or none)

i read the github TOS quite thoroughly at the time - what it
says, is something like: "you grant us permission to present the
code to other users, for viewing and forking" - and thats all -
there is no further elaboration on what that implies

i think "viewing" is obvious - that means the public can read
the code in a web browser (look but dont touch) - the copy in
your local browser cache, is probably permitted according to the
legal exception, which considers the temporary copy in a CD
player buffer to be exempt, just as with streaming media services

im quite sure that "forking" has a similar semantics (nothing
leaves the server in a practically usable form) - "forking"
means "pressing the fork-me button on the website", which merely
creates another copy on the server (for similar "viewing" and
"forking") - i assume that it does not suggest downloading a
proper VCS clone locally

it does not mention anything about the downloading a tarball;
but that is neither viewing nor forking, in any sense - that is
very plainly "copying", and per the plain english
interpretation, the TOS does not permit it - if it were
permissible at all, i would expect some terms to mention it
(something like: "users may download one copy for local
viewing" (a weak license grant); but there is nothing that
resembles a license grant

that was a few years ago; but i doubt that their TOS has changed
WRT that topic - i have not read the TOS of any other forge, but
as most of them are github copy-cats; i expect that they have
similarly vague TOS