The Borders of Open Source Code: The Downsides, Legalities and Alternatives for Git repositories

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Developers worldwide from all kinds of project backgrounds, ranging from software to hardware, have gone through a history of different ways to manage their resources and source codes for their projects, be it operating systems, drivers, office and industry applications, media software, and even entire videogames and emulators.

For those around in the coding world decades ago, developers relied on things like SVN (Subversion), CVS (Concurrent Versions System) for source code versioning control, and places like Google Code (which has been defunct since 2016) to store their projects.

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The now-defunct Google Code service

With the passing of time, and also the changes in the technological landscape, Git-based project hosts became the centerpiece for almost every kind of hosted project with a proper versioned source code, or even just for archival purposes.

However, with any form of source code hosting service, there comes a fair share of rules, terms of service, and of course, region-based laws applied into the application, website or service, depending on where the company resides or operates, like every other website in the internet does.



Limited Openness


Any form of website, service or company is tied and must abide by region-specific rules and laws, which vary from country to country, and even in some cases, from state to state within the same country. The same applies to technologies, in an ever-evolving landscape of technology, the laws that regulate said technologies become quickly obsolete, sometimes relying on outdated rulings and laws established decades from any emerging technology. Such is the case for most current forms of media, like videogames and emulators, and how they're handled in comparison to the start of the 2000s.

For the specific case of source code projects and development, one of the most defining factors to determine whether or not a project can be hosted into a specific Git service is the copyright law, which in the case of software development, is the Digital Millenium Copyright Act (DMCA) for the United States, and in the case of the European Union, each country handles copyright law differently, and some countries are covered under the Electronic Commerce Directive (ECD), which handles notices and take downs, but for a general purpose, we'll focus on the General Data Protection Regulation (GDPR) for the European Union. Note however that the European Union does not necessarily constitute every European country, which will be a key point to touch upon further down in this article.

With copyright law taking an effect and extending into Git repositories, the companies offering the repository service, like GitHub or GitLab, might exert an immediate action of termination upon DMCA/GDPR notice for content hosted under their grasp.

But why is the DMCA/GDPR such a defining factor for any kind of project, specially open source ones?



The Downsides of Mainstream Git Hosts


While certain hosted repositories would certainly prompt a copyright infringement, like leaked source code for games or software, others are not that clear-cut when it comes to what would encapsulate a copyright infringement, or a plausible violation of DMCA/GDPR law. Some companies enforce these as they see fit, regardless of possible limitations or exemptions to those laws. Not only that, but to make matters worse, sometimes these so called strikes or takedowns aren't even enforced by the copyright holder itself, but rather a completely unknown and unrelated third-party, basically falling into perjury by impersonating or claiming to be the copyright holder when they are most certainly not.

In these last few years, we have seen a wide number of projects being taken down from the now-usual mainstream source code repository services, with the most prominent being GitHub, though GitLab has also been a place where takedowns aren't that rare to see as well.

Nintendo surely is the crowning example of a company enforcing takedowns in a frequent basis, but there are other companies as well eyeing these mainstream code services for possible copyright takedowns, with it sometimes going beyond a takedown and into the territory or lawsuits.

We can take a look at some of the most prominent take downs from the last couple of years:
These are just a few outtakes from the entirety of legal takedown that have occurred over at GitHub/GitLab combined.

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Excerpt from the Nintendo V. Tropic Haze LLC / Yuzu lawsuit

Be it a legitimate takedown or someone impersonating the actual company, most people who hold a particular source code repository will most likely not counter any of these strikes, often leading to their projects being permanently taken down from the service (alongside any forks being made). Users wanting to see the project continue might reupload it to other sites, but with most mainstream services being hosted in the US or EU, it's generally only a matter of time before the projects are once again found and removed.

Additionally, due to the lack of a clear statement on what constitutes an actual copyright infringement and what could be possibly fall under the Fair Use or Personal Use statutes of the law, or a Reverse Engineering clause, fighting against the takedown notices would only mean that the developer or user is opening themselves up for an eventual lawsuit by the copyright holder, with the only plausible end to it being the developer being sued to bankruptcy, in heavy debt, or with actual prison time.

Both GitHub and GitLab are based in San Francisco, California within the United States (although GitLab is also found in other countries, mostly from the EU and Asia), which makes both of these completely compliant with United States laws, which includes the DMCA, and by extension, the GDPR from the European Union (and other laws that might apply in Singapore, South Korea and Australia regarding copyright law for GitLab).



Git Repo Alternatives


Given all of these inquiries and issues, what can a source code developer do then to safeguard their repositories without fear of a possible take down, be it official or an impersonated attack? What can a developer do to even safeguard their codes in the case that new laws pass down that might affect even more homebrew or fan-made projects? And what if the developer just wants to archive their source code repository for educational and historical purposes? Contrary to popular belief, both GitHub and GitLab are far from being the only Git services around.

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9 Best GitHub Alternatives. Source: Startup Talky

While there are certainly a number of ways to handle, comply and/or avoid the DMCA/GDPR, and/or make your project safe in any regard, there are still projects that end up being taken down maliciously by non-copyright holders (perjury), and there's also times when the DMCA-based takedown could be countered and possibly hold a position in court, but due to the grey area of the DMCA when it comes to Fair Use, Personal Use and Reverse Engineering, as well as non-profit hacking, romhacking, fan projects and others, the usual victims are fan developers themselves that have to way of defending themselves against a multi-billion dollar company in court, so the only action for the usual developers is to cease development or change hosts to another service.

In the case of the later, what options does a developer have when their project is being targeted by DMCA/GDPR takedowns?
Given how the mainstream services are hosted within the US.

First, let's start with some of the Git services suggested by the GBAtemp community:
  • Framagit.org (France by Framasoft), GitGud.io and about.0xacab.org are all powered by GitLab, so those are still tied to DMCA/GDPR laws by extension.
  • Repo.or.cz is running on Germany and Czech Republic laws, so still tied to EU laws / GDPR overall. While there's not much certainty as to how much Czech Republic enforces copyrighted content, Germany is not a viable option given how tight they are towards copyright violations.
  • Codeberg.org is also another service operating under German jurisdiction.
  • While NotABug.org has some Tor bases on them that could potentially help towards anonymity, the actual site is hosted on rented German servers, and is owned by Dutch members, so that's still EU stuff that could be attacked by a DMCA takedowns or GDPR. Could still be a feasible solution if the site is indeed running on Onion links and such, but there is some uncertainty here.
All of these could be considered good options to an extend, as they're not working directly as a big corporation monitoring source code
GitProtect.io posted an article about Git hosting alternatives back in 2022, with the top spots being, of course, GitHub and GitLab, but also mentions BitBucket, SourceForge, Launchpad and CodeBase, to name a few, as other considerable options back then. However, it's worth considering that these services are mostly based on US territory (with a couple in the EU), making them just as feasible as GitHub and GitLab for this use-case, so they're not considerable options for trying to preserve your open source code online.

Most of the mentioned options above reside within the European Union, but what other options are there then that aren't based in the usual regions and countries?
We still have quite a handful of other really good options in other countries, but we first need to know what countries are lenient in regards to DMCA/GDPR laws and how they enforce them, or if they enforce them at all. Website Planet released an article recently detailing which countries tend to ignore DMCA/GDPR laws worldwide, and these could be good potential candidates to start looking into Git services hosted into these countries:
  • Netherlands
  • Luxembourg
  • Bulgaria
  • Malaysia
  • Singapore
  • Hong Kong
  • Russia
We'll be focusing on two of these countries which do have a Git alternative based on their territories, but that doesn't mean there could be other options out there still unknown for the purpose of this article. It's also worth considering that, while these countries are mostly focused on East Europe and Asia, there could also be other countries that might be lenient in regards to copyright law.

Latin America is also known for being quite lax when it comes to copyright laws and piracy, but if the situation arise of a very extreme case, the laws from the US might extend to one of these countries due to most of Latin America's alliance with the US, and even though there hasn't been any precedent of companies from US/EU origin going after users or developers located in Latin American territory, there's always the possibility of them extending their reach.



Recommended Git Alternatives


While the options mentioned above are viable for hosting open source code, the following recommendations are potentially the most safe haven for open source projects to be hosted without fear of a DMCA strike. For the first couple options, it's suggested to use a translation tool or browser extension like TWP (Translate Web Pages) by Filipe, so those interested can navigate the next 2 options in their native language without a language barrier:
Screenshot from 2024-05-10 10-36-33.png

China's webpage for their own Git service, Gitee

Gitee is one of the most feasible options for those that might want their code to work outside of the usual countries, as this one operates within China, specifically, based on Shenzhen.

However, we have to take into consideration that the multimedia company Tencent, based in Shenzhen, is currently operating in the region and works as a publisher for several western and other Asian companies, as well as holding stocks in big gaming companies, like Epic and Activision Blizzard. Tencent also worked alongside Nintendo to release the Switch in a jointly effort to bring the console into Chinese territory, so it's another thing to consider if one wishes to host code on this Chinese-based Git service.

Gitee offers a few registration options for worldwide users, directly with an email, through a Google account, and even registration via your own GitHub account (and even GitLab and Huawei accounts in some instances). It also offers some additional registration options for Chinese users as well.
Screenshot from 2024-05-10 10-36-55.png

GitFlic, the Russian-based Git service

GitFlic is a really obscure Git service, and with good reason. Despite its obscurity, it is one of the best options to host source code to this day (alongside the following two options), given how the Git service is entirely and solely based in Russia and is completely impervious to any kind of copyright law from the US or EU. Due current on-going world events (and to avoid going into details), Russia made software piracy legal nationwide back in 2022 making hosting any kind of project or source code hosted in it legal under Russian law, even if it the code itself infringes on copyright laws from other countries.

The registration options that GitFlic offers for worldwide users are a bit more limited that Gitee's, as it only allows registration either directly with an email (which is the most accessible out of the available ones), or through one of Russia's own media services, with these being Yandex (a Google-like equivalent in Russia) or VK (a FB-like equivalent in Russia). Once the user has created an ID in either Yandex or VK, they can sign in to GitFlic using any of the two, though these last two options for registering should only be considered if the email registration failed.
Screenshot from 2024-05-10 11-59-57.png

Decentralizing GitHub with torrent-based Git projects through GitTorrent

If the developer is interested in still using GitHub/GitLab powered repositories, but not rely on the company exerting their claws unto their projects, there's also the option of creating a distribution of the source code/project through a torrent service, or better yet, merging both Git and Torrent into a single network to decentralize the repositories themselves, which prompted for the creation of GitTorrent.

GitTorrent works by sharing Git repositories with BitTorrent over a peer-to-peer network, which effectively makes the users themselves the hosts for the repositories being shared. The GitTorrent repository has instructions on how to clone the repository and install it, and how to manage a personal Git repository for sharing over GitTorrent itself.
  • Self-Hosted Git repository:

Another option a developer could have if they still want to use some form of similarity to GitHub/GitLab and not rely on them entirely is a self-hosted Git repository. This is more or less similar to making a server which hosts the repository itself, which means the developer will be in charge of the installation and maintenance of the repository.

The benefits of a self-hosted repository are that the repository made in this manner is subject to the laws of whichever country the repository is hosted in. If the repository is hosted in a country where DMCA/GDPR laws aren't that prominent, then that could mean a plausible safe place for the project to thrive without much worry about a strike or takedown due to copyrights.

GitLab itself offers a way to create a self-hosted and self-managed repository based on their service, which might make it still viable to their Term of Service. However, there's also wide variety of other options to choose from when it comes to self-hosting repositories, with some of these options being Gitea, Gogs, GitBucket and Frog Git, among others.

Inedo Blog featured a very detailed article regarding self-hosted git tools, and the most recommended Git tool for this according to them was Gitea.
Slant has a really good list of options for self-hosted Git managers if a developer chooses to go with this alternative. GitProtect.io also offered a good list of alternatives for a self-hosted Git repository in 2022, so those could also be looked upon for those interested in going this route for their own projects.



Precautions, Warnings, and Potential Liability


Hosting your "legally grey" source code in another Git host outside the usual jurisdiction could save your project from potential takedowns and DMCA/GDPR claims, but that doesn't mean it will also save you as a developer from the almighty corporate eyes and ninjas.

While surely hosting your projects in some of the above recommended Git services could mean a safe haven for your projects, the region where the developer who created the source code lives will also play a huge part in what action the companies involved in copyright claims might take against the developer itself. Anonymity online is a pivotal part for legally doubtful projects, since if the project itself is considered infringing by the copyright holder, and the developer is already circumventing the copyright laws by going into other country's Git service, if the developer itself resides within any of the DMCA/GDPR abiding countries, they copyright holder could instead go directly after the developer itself, instead of relying on a third-party company like GitHub or GitLab to strike down the repositories on their behalf.

What-is-DMCA-7.jpg

Penalties for failing to comply with DMCA law, according to the Idea Maker Agency

if the previous scenario becomes a possibility, there's three potential outcomes if the company gets a hold of the developer:
  1. The least aggressive outcome, and the most plausible, could be either a direct DMCA or C&D notice directly to the developer's email or through contact form of some kind. The developer should never underestimate the resources that a copyright holder has, more so in the case of big companies, like Nintendo or Microsoft.
    In this case the best course of action would be to comply with the DMCA notice and cease development, otherwise they risk escalating the situation into the next point.

  2. The developer risks a potential legal fee for infringing copyright. In this case, the fee might be settled by a court, depending on how much the copyright holder and its analysts could consider in damages. Additionally, the developer will be forced to shut down the project on its end, though this doesn't mean it could put an end to forks and other re-brandings of the project outside of the original developer's jurisdiction.

  3. The worst case scenario, and the less likely to occur, is a jail time settled in court. This is hardly (and almost never) the case when it comes to possible DMCA-infringing repositories. The only case in recent memory of a person getting jail time due to copyright infringement was the case of Nintendo VS. Gary Bowser, but this particular case point was due to actual money being made from the whole ordeal, with hardware that bypassed device protections being sold.
As an additional note, open source projects that are in a grey legal ground could be subject to a direct lawsuit attack if actual money is involved. This could be an extension of the Fair Use clause of the copyright law, which allows for modifications of the original works as long as monetary gain isn't involved, which is what could prompt a corporation to take direct action, as that also gives them legal basis to account for real and accountable damages on their end.

If a developer does end up going with any of these listed alternatives, do take into consideration all of this plausible outcomes,



Summary



There's currently a lot of options outside of the usual GitHub and GitLab repositories for developers throughout the world to make use of, and while many of them are based within the United States and the European Union, developers that want to keep their projects alive and without risks of potential takedowns or strikes, they can still make use of any of the listed options.

The most recommended options of the entirety listed here are without a doubt GitFlic, and making and sharing your own repository by the developer's own terms, be it through a self-hosted Git manager, or by sharing their Git repository through a peer to peer network with GitTorrent.



Closing Thoughts



The current state of open source projects, emulation, and the tools that allow emulation to be possible in the current age are getting more and more media attention day by day, and that also means gaining attention towards the companies that hold the copyrights to the titles played in said emulators.

Previous court cases, like Sony VS. Connectix, gave a precedent and a protection to emulators back in the early days when emulators were on the rise, but with how quickly the evolution of technological measures are being applied by companies in a modern market, the laws that protected said emulators back then could be at risk unless new exemptions to copyright laws are made that allow for the consumer to have complete ownership of the product they purchase, and how the consumer wants to make use of their purchased goods and how to experience them.

The targeted source code projects under these circumstances are a clear indication that such changes are starting to take shape, and developers are seeking options to preserve and allow others to make use of their own purchased goods at their own leisure, without the ever-seeing eye of the company telling them how to and how not to enjoy their purchase.

Developers worldwide should have all the options possible at their disposal to preserve whichever developments they make, be it for archival, educational, or whatever else purpose they seek, and that those projects become an everlasting imprint in the history of technology and humankind as a whole, not only made by the big corporations, but by fans and deeply devoted and talented humans alike.
 

ShadowOne333

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You can also go the old fashioned way and just zip up your code then throw it on any random fille hosting site lol.

Great write-up! Was very interesting to read. Will refer to this when I start writing legally gray code 🙏

Oh for sure, hosting it in any site, even Archive.org, could help.
The problem there though is that you don't have much towards contributions or continuing the code itself, which is what the purpose of this article is about, to be able to still host and continue developing your code. Having the ZIP archived could also help for archival purposes of course, and if the software is considered finished, that could be the best way to go.
 

ZeroFX

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I have a git repository hosted in my server, there I put my code (I'm not much of communities and making my programs/scripts public) and mirror interesting stuff to it, some of them even got taken down from GitHub/Lab.
 

subworx

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Hmmm... the GDPR (not GPDR as @ShadowOne333 wrote throughout the article - it's the General Data Protection Regulation, after all) to my knowledge (and a quick keyword scan/search) has nothing to do with copyright but only deals with personally identifiable information and data protection.

Other European laws/regulations may be more worrysome in that regard.
 

ShadowOne333

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Hmmm... the GDPR (not GPDR as @ShadowOne333 wrote throughout the article - it's the General Data Protection Regulation, after all) to my knowledge (and a quick keyword scan/search) has nothing to do with copyright but only deals with personally identifiable information and data protection.

Other European laws/regulations may be more worrysome in that regard.

Yeh I blame my dyslexic ass on the typo :P
As for the law itself, GDPR was one I found mentioned over and over about data protection, but I couldn't find much in terms of a direct counterpart for the DMCA in the EU.
I know some countries handle copyright law differently, and there's the ECD as well, but what other main law in EU would be close to the US' DMCA that's not country specific?
 

Maximo101

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Whether your case is legal or not is not pertinent. Companies of the size of those who are initiating the lawsuits have nearly bottomless pockets to fund endless in-house counsel for infinite lawsuits.

It seems like an obvious solution, but why not host anything in the grey area from a country that doesn't recognize or honor DCMA laws?

Excellently researched analysis!
 

HarveyHouston

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There are several flaws with this article.

First of all, the article assumes that you're always going to make a project based on a copyrighted work, or just simply a work someone else doesn't want you to copy. Many opensource projects are created from scratch, or based off of another opensource project, and are therefore legal and even encouraged to make copies off of.

There was no mention of any kind of licensing, which is a major flaw. Many opensource licenses can help protect a work from being taken down, like Creative Commons or the GNU Public License, while still allowing that work to be shared freely (i.e. copyleft). These licenses are also legal and allow for free distribution of any sort of project covered by those types of licenses.

Hosting on a Chinese Git, unless you are IN China and thus have no better alternatives, is definitely a no-no. Since China is communist, anything hosted within China must comply to Chinese government, and thus can be subject to their own rules. This means that if you make something they consider derogatory, even if it is tame, they will take it down. Also, there's the risk of privacy whenever you use a Chinese site - look at the current situation between the United States and Bytedance, and you'll see what I mean.
 

rvtr

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Also, there's the risk of [not having] privacy whenever you use a Chinese site - look at the current situation between the United States and Bytedance, and you'll see what I mean.
Reminder that there's a risk of not having privacy with a bunch of american sites. See google, facebook/meta, discord, microsoft, etc as some examples you probably use. Most things are terrible for privacy. I've never used gitee, but there may be some benefit of it just not being github lol

Support for github is shit which makes the platform awful to use (eg. get banned and you can't get a reason, education site is broken so you can't apply and nobody will respond). There's also the fact that github is a part of microsoft which is a company with plenty of problems... like privacy lol. Plenty of friends have also complained about github. While I can't speak on the issues they had, it seems like there's a few people who don't like it.

Again, I haven't used and don't know much about gitee so I can't say it's better, but github has issues. Maybe gitee is better in some ways.

Anyways, my point is that you can't just say "grrr chinese company == bad". American companies have issues too. You've just gotta explore the issues of each and pick your poison.
 

EnigmaExodus

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Framagit.org (France by Framasoft), GitGud.io and about.0xacab.org are all powered by GitLab, so those are still tied to DMCA/GDPR laws by extension.
Do not place third-party GitLab instances (that merely run the publicly available GitLab software) in the same bucket as the official GitLab.com service. Anyone can install the GitLab software and dictate whatever policies they deem acceptable. The GitLab company cannot do much about it.
 

Bladexdsl

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no where is safe from the ninTADO if you use any of their property in anything you make and upload online than this is what will happen because they 100% hate their fans and don't deserve your admiration
mr-burns-release-lawyers.png
 
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Dawn_Chaos

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There are several flaws with this article.

First of all, the article assumes that you're always going to make a project based on a copyrighted work, or just simply a work someone else doesn't want you to copy. Many opensource projects are created from scratch, or based off of another opensource project, and are therefore legal and even encouraged to make copies off of.

There was no mention of any kind of licensing, which is a major flaw. Many opensource licenses can help protect a work from being taken down, like Creative Commons or the GNU Public License, while still allowing that work to be shared freely (i.e. copyleft). These licenses are also legal and allow for free distribution of any sort of project covered by those types of licenses.

Hosting on a Chinese Git, unless you are IN China and thus have no better alternatives, is definitely a no-no. Since China is communist, anything hosted within China must comply to Chinese government, and thus can be subject to their own rules. This means that if you make something they consider derogatory, even if it is tame, they will take it down. Also, there's the risk of privacy whenever you use a Chinese site - look at the current situation between the United States and Bytedance, and you'll see what I mean.
  1. The article does not assume that all projects are based on copyrighted work. It highlights the challenges faced by projects that fall into legal grey areas, such as reverse engineering, fan projects, and emulators. It also acknowledges that many open source projects are perfectly legal and do not infringe on any copyrights. The purpose of the article is to provide alternatives for those specific cases where developers might face legal challenges.
  2. While it’s true that the article does not delve deeply into licensing, this does not diminish the importance of the issues it addresses. Licensing is indeed crucial for protecting open source projects, but licenses like the GNU Public License (GPL) or Creative Commons (CC) do not shield projects from DMCA takedowns if they contain copyrighted material or if they violate other legal statutes. The article’s focus on hosting alternatives is relevant for those cases where licensing alone is insufficient protection.
  3. While it is true that hosting in China comes with its own set of risks, including government censorship and privacy concerns, the article does not recommend Gitee without caveats. It explicitly mentions the potential issues with hosting in China and advises caution. The recommendation is made in the context of finding alternatives to avoid DMCA/GDPR takedowns, which might be a higher priority for some developers depending on their specific circumstances.
  4. Privacy concerns with Chinese-hosted services are valid, but the article addresses a broader context of legal takedowns and project preservation, not just privacy. The comparison to Bytedance (TikTok) is somewhat tangential. Git hosting services like Gitee are used primarily for code and project management rather than social media, and while privacy is important, the primary concern for developers in this context is the legal environment regarding DMCA/GDPR enforcement, not just data privacy.
Your comment brings up important points about licensing and the risks associated with hosting in specific regions, but it overlooks the article’s broader context and the specific legal challenges it addresses. The article offers a comprehensive view of hosting alternatives for developers facing legal uncertainties. I decided to respond to you at length because phrases like "Many opensource projects are created from scratch" and "Hosting on a Chinese Git... is definitely a no-no" imply that the author of the article doesn't understand basic concepts, which you and I both know to be untrue.
 
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