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Probably the ToS. You've granted GitHub specifically license to use your code under the terms of the ToS, they effectively have 2 licenses. They can therefore choose under which licence they want to use your code, and will choose the most permissive one, or the one they have the best understanding of: in this case the ToS.

Other parties are not granted license under the ToS, and so will have to abide by the AGPL.

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License takes precedence when you don’t own the copyright. ToS takes precedence when legally allowed and you do own the copyright.

ToS regularly gets thrown out in Europe if considered unfair. Much of OSS is written in the rest of the world.

(Of course the GitHub ToS do not allow any CoPilot activities in the first place.)

That statement is dangerous. ToS often gets thrown out in business to consumer transactions where the business has a significantly better negotiation position (legal counsel,…) It’s a consumer protection mechanism. In business to business interactions, the chance of getting a ToS thrown out is much lower since it’s assumed that the playing field is much more level.

The blog post articulates how GitHub TOS does allow CoPilot.

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