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Unclear because both urls were uploaded to to github under open source license by a Microsoft developer, and then promptly removed. I can't find it now (could be removed, could be posted in an issue) but VSCodium have instructions on how to change to MS's marketplace.
Last I read, Microsoft hadn't replied on whether it was legal or not to use their makeplace, since it was uploaded under open source. Thus again, unclear.
Edit: https://github.com/microsoft/vscode/issues/31168 The issue where the license of the marketplace is discussed.
How does that make you allowed to violate the terms of service for the VS marketplace? A URL pointing to it doesn't mean you suddenly are allowed to use it in a fork. The license just means you can copy that string of text. It doesn't give you permission to do anything with it.
Just skimmed the link, and from what I understand the legal document prohibiting use of their marketplace did not exist in 2017 (or I am wrong and it took 5 years for someone to dig it up from Terms of Use).
I think it's the latter.