Legality and enforceability of commercial software uploaded to Github

Question

Semi-hypothetically speaking, let's say a company creates a piece of software and then purposefully uploads the source code for that software to GitHub. You can download it, run it, etc directly from the repo.

Now, let's assume that the license for this software is commercial. It states that you cannot use the software unless you pay for a subscription license.

As the developer of the software, can I reasonably expect that people using my software will pay me for it? Or more specifically, could I reasonably assume that if someone were to download and use my software without paying, I could legally force them to pay up?

If the answer to the above question is "yes", how would this be different than--say--a musician uploading an album to a public server and then saying "you can download this music for free, but you can't listen to it unless you PayPal me $10"?

I'm interested in both sides of this equation:

1) As a consumer or a small business, can I legally make use of software licensed in such a manner?

2) As a software publisher, can I go after people that download and use my software from GitHub if licensed in this manner?

Answer 1

tl;dr version: As a consumer or small business, you can legally make use of the software if you follow the terms of the commercial license. The software publisher could go after people who download the code for copyright infringement and possibly breach of contract if they exercised a right protected by copyright without complying with the terms of the commercial license.

There is an argument that the company in your hypothetical has agreed to grant a license to copy and prepare derivative works based on the GitHub Terms of Service, particularly section F.1. There are a couple of issues with this related to the language "agree to allow" and the fact that these are not all the rights someone may want or need, depending on what they want to do with the code.

But your hypothetical also says the company attaches a commercial license to the code with restrictive terms. These terms likely would override whatever rights are granted by the GitHub Terms of Service because they would be more specific. As a consumer or small business, you would be risking copyright infringement if you did not abide by the terms of the commercial license and made use of the code. If a court decided you had accepted the license by your actions, then you may be liable for breach of contract as well.

So, yes, as a software publisher, you could go after people who download your code from GitHub and violate the terms of the license.

Answer 2

A basic equation is this: organizations with a lot of money have a lot of lawyers. Lawyers tell people to respect licenses. So, if you offer the code with a restrictive license (GPL, or some 'no commercial use license'), then those organizations will pay or not use it. Anyone, for example, can download Oracle binaries, but the use of those binaries is covered by a restrictive license. Real companies pay Oracle.

On the other hand, Oracle spends significant time and money communicating with people to 'encourage' them to pay. Can you do that?

On the other other hand, note my use of the term 'organizations with lots of money.' For this business model to work, you have to have something that is attractive to this kind of customer. If you post up a product that is mostly useful to individuals or small organizations, don't start planning your second home. As a further wrinkle, the more 'crayon'-ish your license, the more likely that those large-organization lawyers are to encourage their business people to shop elsewhere.