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But why exclude even looking at those ?
Probably to avoid a similar situation to Oracle vs. Google.
If something is open source and protected under copyright does that make it “clopen source”?
(comment deleted)
Open source licenses derive their power from copyright law, so everything that is open source is protected by copyright.
We have something similar: https://github.com/SheetJS/js-xlsx/blob/master/CONTRIBUTING....

In our case, the root problem is twofold: developers in other related projects have been less-than-circumspect in code contributions, and thanks to the Microsoft Shared Source Agreements (https://www.microsoft.com/en-us/sharedsource/default.aspx) there are many people who have looked at protected code and signed agreements.

It is probably even more relevant for Scala.js since they are dealing with the JDK and Oracle has not been afraid to pursue potential violations.