What am I missing here?? I thought look and feel wasn't copyrightable. Didn't we learn that in the 80's?
More importantly, though is that look and feel may be trade dress, which is a trademark issue, because it helps consumers identify the source of the service. Do you look at Gitbucket's website, which does the same thing at GitHub, and think for a second you're not sure if this is a service that GitHub made? That's trademark infringement.
We also learned about trade dress in the 80s. [1]
[1] https://www.youtube.com/watch?v=29wNCH4RBrk (Coming to America)
There has to be a line somewhere between "I own the copyright on the appearance of this painting" and "I own the copyright on the appearance of text documents showing 12pt Times New Roman on a white background" where it no longer qualifies as a copyrightable work, but I wouldn't be surprised if GitHub's page layout fell on the copyrightable side of it.
For another example: magazine page layout. If you designed a magazine and a competing publication in the same industry lifted your design pixel-for-pixel, it'd be lawsuit time. If a satirical magazine did it to imitate your publication, they'd be doing it under a fair-use exception for satire. GitBucket is more like the former.
I hope GitBucket posts the email from Github.
Whatever it is that you think you learned in the 90s that would somehow make that an antitrust violation is quite mistaken.
Theres a lot of subtlety I'm missing, but that's the best this non-lawyer can do for the time being.
It would help, to make a counterpoint, if you spelled out exactly what in the 90s this reminds you of.
My wild guess is that this reminds you of the legal agreements Microsoft got in trouble for having computermakers sign that kept BeOS off their computers.
But that's wildly inapplicable here. Nevermind the important fact that a TOS for Github's own service forbidding using it to create a competing service is materially different from signing an agreement with a 3rd part to not do business with a competitor, the simple fact is Anti-Trust laws only apply to Trusts.
At the time Microsoft got in trouble, they had previously signed a legal agreement acknowledging they were a trust, in 1994. Github hasn't done that. Microsoft signed a legally binding document that said "We acknowledge we are a Trust, and we agree to play by the rules governing Trusts" and then broke those rules. That's what they got in trouble for. None of that applies here, however much you "think Github has a dominant position". That's not enough to get you slapped with antitrust violations.
If Github were a monopoly in it's market (which it isn't, but let's pretend), that's not illegal! They would first have to be shown to be leveraging that position to enter into other markets, or to in some other way be illegally using that position to prevent 3rd parties from doing business with competitors, which is a violation of the Sherman Act. Simply saying that competitors can't use their free service is not a violation of the Sherman Act.
To answer your question though, I was thinking of the accusation that Microsoft leveraged the Windows market position to promote Internet Explorer.
It still seems that (if a monopoly) Github's behavior could be covered by the "essential facilities" section. However both whether Github is a monopoly and whether their behaviour would be covered seem very fuzzy, and I suggest we leave that discussion to the lawyers!