That said, Maffulli thinks, "Legally, it appears that GitHub is within its rights." However, it's not worth getting "lost in the legal weeds discussing if there is an open source license issue here or a copyright issue. This would miss the wider point. Clearly, there *is* a fairness issue that affects the whole of society, not just open source developers."
Interesting, and there are other, structurally similar cases where indeed the case can be framed as one about fairness, not license compliance. For example the 2016 case where Flickr (Yahoo) created a project to sell posters based on CC BY licensed Flickr photos, without sharing revenue with the authors.