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Suppose there's a website that lets users upload their own software, like mods in a video game, and their terms of service contain a clause that requires and assumes all uploaded software to be MIT licensed:

XIV. Mods

All mods uploaded into {{site}} must be licensed with the MIT license. Any mods without a license specified are assumed to be licensed by the MIT license.

How does this work if a user uploads software that either:

  1. is not otherwise licensed (e.g., a GitHub repo with no LICENSE file), or

  2. has a conflicting license (say, GPLv3)?

Does uploading the software to the site with such Terms of Service overwrite the license of that version of the software? Concretely, can users other than the host with those Terms of Service then also assume the software (at that version) to be MIT licensed? How much effect do such Terms of Service clauses have? Is there a precedence order between contract law and copyright law?

(I can't find any case law or articles about this on public-access search engines, although that's likely 'cause I haven't mastered this type of search.)

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    Note that work can be dual-licenced.
    – Gregory Currie
    Nov 27, 2021 at 4:43

2 Answers 2

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Does uploading the software to the site with such Terms of Service overwrite the license of that version of the software?

No. The license is a contract between the software copyright owner and the user, it cannot be overridden by another contact (which the TOS are) between the user and a third party.

Concretely, can users other than the host with those Terms of Service then also assume the software (at that version) to be MIT licensed?

No.

How much effect do such Terms of Service clauses have?

They can protect the website owner.

Assume a user uploads something that they cannot distribute under an MIT license, thus breaching their contract with the website. When the copyright owner sues the website for copyright infringement, the website can sue the user for breach of contract to recover their losses.

Of course, the copyright owner can equally sue the user if they stepped outside their license.

Is there a precedence order between contract law and copyright law?

No.

Copyright is property. There is no difference between owning a car and licensing people to use it and owning copyright and licensing people to use that. If they breach the terms of the license then you can sue for breach of contract. If they take your stuff without permission you can sue for conversion (for tangible property) or breach of copyright (for copyright property). Both rights exist in parallel.

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If the mods are your intellectual property, then you can give it whatever licence you want. That is your right.

However, you are required to adhere to the terms and service. If you do not licence your work under the correct licence, you are breaching the terms of service.

You should not engage in behaviour that breaches legal agreements that you have entered unless you are prepared for the potential consequences.

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