9 ms·

Beware the IP non-assert clause in AWS cloud service agreement

129 points by kalu 11y ago

devnonymous 11y ago
While the warning appears to be well intentioned and the paranoia understandable to me, I didn't quite understand this bit: > Lastly, it’s well known that AWS utilises and hosts a wide range of open > source code which could include viral OSS licences that might further > extend the reach of the IP non-assert in unforeseen and unpredictable ways. Could someone who understood explain this ? Is that last bit just FUD ? If it is, then is the entire article FUD ?
- kalu 11y ago
  The license includes a provision that restricts users from asserting their patent rights against AWS licensors. When AWS uses an open source project, the project becomes an AWS licensor. The author's concern may be that the provision could extend to the contirbutors... or employers of the contributors... and so on. This is not just FUD: > Amazon is using the provision to defend itself in a patent infringement case brought by Appistry Inc in US district court in Seattle.
- acdha 11y ago
  The entire article is FUD – the license is rather clear in indicating that as a condition of using AWS you promise not to bring IP lawsuits against Amazon, the duration bit is only too long if you don't read that clause all the way to the end, etc. This is easily explained by the attribution: “Bart Eppenauer, former chief patent counsel at Microsoft and now managing partner of law firm Shook Hardy & Bacon’s Seattle office” A quick search leads to http://www.shb.com/news/2013/11/shook-to-open-seattle-office-with-former-microsof http://www.shb.com/news/2013/11/shook-to-open-seattle-office... which suggests that their Seattle office was founded to expand their IP practice: “Eppenauer has served as chief patent counsel at Microsoft Corp. in Redmond, Wash., since 2003. In that role, he led the Patent Group in the Legal and Corporate Affairs Department, where he developed Microsoft’s patent portfolio of over 35,000 issued patents worldwide and managed a team of more than 100 patent professionals offering patent counseling and product development support across all of Microsoft’s business and research divisions. With extensive experience in complex, multilateral IP transactions and license agreements, Eppenauer has also worked closely with government and judicial officials, academics, and industry leaders worldwide on IP policy issues, in addition to participating in the recent passage of major U.S. patent reform legislation.” So we have an attorney leaving a company with a track record of aggressive IP enforcement to open an IP-focused office for a law firm which does things like send people to chair conferences on monetizing IP (http://cf-conferences.com/conferences/ip-strategy-seattle-2015/overview http://cf-conferences.com/conferences/ip-strategy-seattle-20...) telling businesses that he's deeply concerned about their ability to hire people like them to bring expensive IP lawsuits.
  - DannyBee 11y ago
    "The entire article is FUD – the license is rather clear in indicating that as a condition of using AWS you promise not to bring IP lawsuits against Amazon, the duration bit is only too long if you don't read that clause all the way to the end, etc." It really isn't FUD, actually, despite the attribution. First, You promise not to bring IP lawsuits against Amazon or it's customers, actually. Second, in fact, yes, if Amazon uses your open source (in some way that is a violation of the license), and you use AWS, you can't sue them. Which is what the parent asked, and in fact, the clause specifically prohibits. (Whether I like these clauses or not is another matter).
    - acdha 11y ago
      The reason I disagree with your interpretation is due to the end of the sentence: “regarding any Service Offerings you have used”. The agreement currently has these definitions: “Service Offerings” means the Services (including associated APIs), the AWS Content, the AWS Marks, the AWS Site, and any other product or service provided by us under this Agreement. Service Offerings do not include Third Party Content. “Service” means each of the web services made available by us or our affiliates, including those web services described in the Service Terms. I'm definitely not a fan of the broad wording which Amazon uses but I would find it hard to believe that any company large enough to consider bringing a legitimate IP suit against Amazon would have trouble finding a lawyer who can come up with an argument that e.g. the open-source project which they're suing over is not part of the web services Amazon's agreement covers but rather just a component which Amazon chose, along with many other people, to use to build that service.
      - DannyBee 11y ago
        You can make this argument, for sure. You will almost certainly lose ;) I've seen cases where wording similar to this has been used. It was found to cover the pieces that provide the services, exactly because it is worthless as a protection otherwise. (If I can get an injunction against you stopping you from running a critical piece of your service , you won't be able to provide the service)
ritchiem 11y ago
Seems the court decided Appistry Inc's patent was invalid. So we'll have to wait for another test case to see how enforceable this is. https://docs.justia.com/cases/federal/district-courts/washington/wawdce/2:2015cv00311/211327/213 https://docs.justia.com/cases/federal/district-courts/washin...
leereeves 11y ago
"you will not assert...against us or any of our...customers" Is that Amazon customers or just AWS customers? Either way, that's a lot of people.
- jessaustin 11y ago
  IANAL... I wonder if random AMZ customers could use this clause in a case without AMZ's cooperation?
  - mmastrac 11y ago
    It looks like the intent is to protect AMZN's customers from IP lawsuits related to their use of the service offerings. So if you were sued for using VMs or S3 storage by a third-party who had used AWS, you could invoke that clause.
    - jessaustin 11y ago
      That's the intent, but is the language specific enough to limit its application to that?
sirwitti 11y ago
I don't know about the US, but in Europe it's quite possible that these clauses would be ruled invalid.
- pascalmemories 11y ago
  Even if you ware a lawyer (you don't specify but give what is essentially an, entirely reasonable, opinion on a point of law), that would normally be decided upon during the course of litigation. So, anyone would still be faced with substantial legal costs, even if the ruling was that one particular term was unenforceable. There is a big difference between how the law works in theory and how it works in practice. Especially is one side is Amazon and has, to all intents and purposes, unlimited cash to drag out expensive litigation. Many large companies win like this in practice when, in theory, they have no merit to their case.
  - bryanrasmussen 11y ago
    In most of the EU the loser in a case is instructed to pay the court costs of the winner.
    - antsar 11y ago
      What about the indirect costs of being involved in such litigation? For example, missed deals/profit due to one's reduced capacity to work while entangled in a legal mess.
    - AdieuToLogic 11y ago
      > In most of the EU the loser in a case is instructed to pay the court costs of the winner. If only the US civil litigation process worked this way... :-(
- rodgerd 11y ago
  Pretty sure Amazon can stay solvent longer than I can.
tempodox 11y ago
What on earth does it even mean?
vacri 11y ago
So, a bit more information here: http://www.geekwire.com/2015/amazon-fights-patent-suit-using-little-noticed-clause-in-standard-aws-customer-agreement/ http://www.geekwire.com/2015/amazon-fights-patent-suit-using... An interesting point is that Appistry continued to use AWS services after learning about the clause. This led the Missouri judge to allow transfer of the case to Seattle (AWS hometown), basically doing a "you can't have your cake and eat it, too".
josephagoss 11y ago
> It’s likely that thousands of Amazon customers don’t > realise they are giving away their valuable intellectual > property rights just for the privilege of using AWS; but > realise they should. Does this mean that AWS is allowed to use the IP of any customer hosting their system on AWS? I've built an application on AWS but would not have if this meant handing over all my IP to Amazon. I must be misunderstanding the issue as I doubt any company or person would use AWS if it meant giving up their entire IP. Can someone please explain what I am missing here?
- ubernostrum 11y ago
  What you're missing is that this is a FUD article. AWS' terms basically come down to "if you use AWS, you lose the right to patent-troll AWS". The article is trying to spin it as "OH NOES NOW YOU GET TEH VIRAL FROM THE EEEEEEEEEEVIL GPL", though I have no idea on what theory they would base a claim that agreeing not to assert against Amazon and its contractors/vendors would somehow constitute GPL'ing your own code.
  - bryanrasmussen 11y ago
    I don't believe this to be correct because no court has established what patent-troll means and the contract certainly doesn't say 'patent-troll' so the test of whether it is allowed or not will not be if someone is patent-trolling amazon but whatever a court determines the contract means.
  - pdabbadabba 11y ago
    I don't think this is right. The terms of the IP non-assert clause say nothing about patent trolling. What the clause says is actually pretty simple: no customer of AWS services can assert a patent claim against Amazon related to an AWS service that the customer used--and that is equally true whether you have a legitimate patent infringement claim, or if you're trolling. The article's open source point is perhaps a bit tendentious (or underexplained), but, contrary to the impression you convey, it is only a very small part of the article. The bulk of the article raises entirely real issues. Edit: I think the open source issue is this: if an AWS customer uses open source software (or, more simply, if an OSS project is hosted on OSS) how far up the user/employer/vendor/contributor chain does the non-assert clause reach? If I contribute to project X, which is hosted on AWS, do I become a party to the non-assert clause? What about my employer? What if I contribute to the project as part of my employment? I think this concern is probably not too significant (particularly since it only bars someone from asserting a claim related to the AWS service used), but I don't think it's fair to call this FUD, much less to call the whole article FUD because it includes this as an ancillary point.
bryanrasmussen 11y ago
"First is the duration – the provision seems to apply even after a customer stops using AWS. " from what I remember in U.S contract law a permanent contracts are frowned on if they don't give some sort of way of terminating the contract?
- iolothebard 11y ago
  Agreed, but it doesn't mean you don't have to end up fighting with Amazon in court.
wtbob 11y ago
I'm not a lawyer, but my take on the clause is simple: one can't sue Amazon for IP related to the service AWS is providing. E.g., I couldn't use S3, but then try to hit Amazon with a file-like key-value-store patent. I think I'd still be free to hit Amazon with a web-based online-shopping patent though, since I'm not buying that service from them. Edit: argh, I wish HN would accept underscores for italics.
- phkahler 11y ago
  >> Edit: argh, I wish HN would accept underscores for italics. Try asterisks around it instead.
- the8472 11y ago
  What if your IP is the copyright on some open source software and amazon is violating the licence? The clause would prevent you from enforcing the licence if you find out through using AWS that they violate it.
  - antsar 11y ago
    Question for legal-minded readers: can this be worked around by having someone else, a non-AWS-user, enforce the license/copyright on one's behalf? Or perhaps simply terminating use of AWS and proceeding to then enforce the claim?
    - biot 11y ago
      The article already clearly covers your second case: > First is the duration – the provision seems to apply even > after a customer stops using AWS. In fact, the text of the agreement states "During and after the Term...".
    - danlindley 11y ago
      "During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us ... any patent infringement or other intellectual property infringement claim regarding any Service Offerings you have used" It would appear that you cannot have someone else enforce this on your behalf.
nickpsecurity 11y ago
Why do they call it the cloud? Because your exclusive I.P. just up and floats away one day. Stay out of the cloud. Invest in cost-efficient IT. Avoid so many issues. I predicted this specific one years back. I'm surprised I haven't heard more of it among cloud vendors.
- balls187 11y ago
  Let's play a game. How long will it take you to get: 3 webservers 2 databases Across 2 data centers. Starting with nothing but a credit card, (and an email address).
  - ceejayoz 11y ago
    You could probably have it up on Hetzner or OVH in a couple hours. Lots of dedicated server hosts with more than one DC, and many give you your server in an hour or two.
    - balls187 11y ago
      For colo, or dedicated/managed hardware?
      - ceejayoz 11y ago
        I'm going off the goalposts in your original question.
        balls187 11y ago
        Outside of performance, how are hosted dedicated servers different than hosted VPS? Are you trading one cloud provider's feature set for another? You still outsourcing via PaaS, and not actually investing in IT.
        nickpsecurity 11y ago
        Physical isolation, control of whole environment, and more security/reliability/predictability when these are leveraged properly. You also have less legal risk if the FBI decides to kick in that colo's doors as they have in the past and seize shared servers just because one client was on it. I doubt the quantitative risk of this is high but I like risks not existing where possible. And you're never investing in IT if you are doing IaaS or PaaS: you're just paying a third party for a temporary good. Colocation is investing in IT because you own the equipment and what's in it. The other parts are their problem with them having a financial incentive (eg competitiveness) to improve them over time. Cloud can shut down tomorrow and what do you get out of that? If it's my PC with my data, I can get it back from them somehow and people trying to stop that might face criminal charges. A VPS service shutting down means my system probably ceases to exist unless they have specific provisions for the situation that work during bankruptcy. You might know of them since you clearly study the cloud offerings more. I don't so I stay in a low-risk situation.
mcherm 11y ago
Wow... that's interesting. I'll summarize my take. First of all, take the article with a grain of salt. Possible issues brought up by Bart Eppenauer are being raised by the former chief counsel of Microsoft, a direct competitor to AWS (Azure). And the linked article has a somewhat alarmist phrasing. That being said, there appears to be something real here. This contract is one that applies to thousands of businesses -- cloud computing is taking both small business and big business by storm, and AWS has the majority of the business in this area. The clause itself reads like this (retrieved today from http://aws.amazon.com/agreement/ http://aws.amazon.com/agreement/ ): During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service Offerings you have used. Now, I am not a lawyer, so my interpretation could be wrong; even if I WERE a lawyer I would be saying that nothing was certain at least until a court had ruled on a case that depended on this clause. But it appears that this clause is very broad in time (from now onwards), in scope (covers patents as well as "all IP") and in targets (against Amazon OR most anyone else like their customers or business partners). The clause is restricted ONLY by the statement that it applies to a claim about "Service Offerings you have used". Now, my impression would be that this means you can't sue Amazon (or their partners/customers/etc) over IP violations BY THE AWS PRODUCT ITSELF. In other word, if you use AWS you can't then later sue Amazon or their customers saying that AWS itself violates your patent on using a computer remotely (or whatever ridiculous patent you may hold). With this interpretation it is an extremely reasonable provision and should not concern any company involved in normal business. Furthermore, the one case where Amazon has asserted this clause (against Appistry)[1] fit this model. Appistry sued Amazon saying that Amazon violated its patent; Amazon countered that Appistry was using AWS and with this clause had agreed not to sue. That case is still underway. So my evaluation is that this is probably an OK clause. But it certainly skirts the line and you ought to have your lawyer look it over. After that, you will probably ignore what your lawyer says and sign it anyway because Amazon is the giant of cloud computing and you don't have a whole lot of choice. [1] - http://www.geekwire.com/2015/amazon-fights-patent-suit-using-little-noticed-clause-in-standard-aws-customer-agreement/ http://www.geekwire.com/2015/amazon-fights-patent-suit-using...
- 11y ago
thoman23 11y ago
> I can safely say that I have never seen such a broad IP non-assert provision in a standard form contract. What about Facebook's React license? https://github.com/facebook/react/blob/master/PATENTS https://github.com/facebook/react/blob/master/PATENTS https://news.ycombinator.com/item?id=8985541 https://news.ycombinator.com/item?id=8985541 https://news.ycombinator.com/item?id=9111849 https://news.ycombinator.com/item?id=9111849
- vetrom 11y ago
  I believe 'standard form contract' was carefully chosen to qualify his statement, so it could sound general, but be exactingly specific. On that note, is there such a thing as a standard contract for web-based service agreements?
Lawtonfogle 11y ago
The simple fix is to make the right to patent infringement assertions one that you cannot sign away so that any contract that includes it is void (at least for that section). Which makes me think it won't ever happen.

129 points by kalu 11y ago

While the warning appears to be well intentioned and the paranoia understandable to me, I didn't quite understand this bit: > Lastly, it’s well known that AWS utilises and hosts a wide range of open > source code which could include viral OSS licences that might further > extend the reach of the IP non-assert in unforeseen and unpredictable ways. Could someone who understood explain this ? Is that last bit just FUD ? If it is, then is the entire article FUD ?

kalu 11y ago
The license includes a provision that restricts users from asserting their patent rights against AWS licensors. When AWS uses an open source project, the project becomes an AWS licensor. The author's concern may be that the provision could extend to the contirbutors... or employers of the contributors... and so on. This is not just FUD: > Amazon is using the provision to defend itself in a patent infringement case brought by Appistry Inc in US district court in Seattle.
acdha 11y ago
The entire article is FUD – the license is rather clear in indicating that as a condition of using AWS you promise not to bring IP lawsuits against Amazon, the duration bit is only too long if you don't read that clause all the way to the end, etc. This is easily explained by the attribution: “Bart Eppenauer, former chief patent counsel at Microsoft and now managing partner of law firm Shook Hardy & Bacon’s Seattle office” A quick search leads to http://www.shb.com/news/2013/11/shook-to-open-seattle-office-with-former-microsof http://www.shb.com/news/2013/11/shook-to-open-seattle-office... which suggests that their Seattle office was founded to expand their IP practice: “Eppenauer has served as chief patent counsel at Microsoft Corp. in Redmond, Wash., since 2003. In that role, he led the Patent Group in the Legal and Corporate Affairs Department, where he developed Microsoft’s patent portfolio of over 35,000 issued patents worldwide and managed a team of more than 100 patent professionals offering patent counseling and product development support across all of Microsoft’s business and research divisions. With extensive experience in complex, multilateral IP transactions and license agreements, Eppenauer has also worked closely with government and judicial officials, academics, and industry leaders worldwide on IP policy issues, in addition to participating in the recent passage of major U.S. patent reform legislation.” So we have an attorney leaving a company with a track record of aggressive IP enforcement to open an IP-focused office for a law firm which does things like send people to chair conferences on monetizing IP (http://cf-conferences.com/conferences/ip-strategy-seattle-2015/overview http://cf-conferences.com/conferences/ip-strategy-seattle-20...) telling businesses that he's deeply concerned about their ability to hire people like them to bring expensive IP lawsuits.
- DannyBee 11y ago
  "The entire article is FUD – the license is rather clear in indicating that as a condition of using AWS you promise not to bring IP lawsuits against Amazon, the duration bit is only too long if you don't read that clause all the way to the end, etc." It really isn't FUD, actually, despite the attribution. First, You promise not to bring IP lawsuits against Amazon or it's customers, actually. Second, in fact, yes, if Amazon uses your open source (in some way that is a violation of the license), and you use AWS, you can't sue them. Which is what the parent asked, and in fact, the clause specifically prohibits. (Whether I like these clauses or not is another matter).
  - acdha 11y ago
    The reason I disagree with your interpretation is due to the end of the sentence: “regarding any Service Offerings you have used”. The agreement currently has these definitions: “Service Offerings” means the Services (including associated APIs), the AWS Content, the AWS Marks, the AWS Site, and any other product or service provided by us under this Agreement. Service Offerings do not include Third Party Content. “Service” means each of the web services made available by us or our affiliates, including those web services described in the Service Terms. I'm definitely not a fan of the broad wording which Amazon uses but I would find it hard to believe that any company large enough to consider bringing a legitimate IP suit against Amazon would have trouble finding a lawyer who can come up with an argument that e.g. the open-source project which they're suing over is not part of the web services Amazon's agreement covers but rather just a component which Amazon chose, along with many other people, to use to build that service.
    - DannyBee 11y ago
      You can make this argument, for sure. You will almost certainly lose ;) I've seen cases where wording similar to this has been used. It was found to cover the pieces that provide the services, exactly because it is worthless as a protection otherwise. (If I can get an injunction against you stopping you from running a critical piece of your service , you won't be able to provide the service)

ritchiem 11y ago

Seems the court decided Appistry Inc's patent was invalid. So we'll have to wait for another test case to see how enforceable this is. https://docs.justia.com/cases/federal/district-courts/washington/wawdce/2:2015cv00311/211327/213 https://docs.justia.com/cases/federal/district-courts/washin...

leereeves 11y ago

"you will not assert...against us or any of our...customers" Is that Amazon customers or just AWS customers? Either way, that's a lot of people.

jessaustin 11y ago
IANAL... I wonder if random AMZ customers could use this clause in a case without AMZ's cooperation?
- mmastrac 11y ago
  It looks like the intent is to protect AMZN's customers from IP lawsuits related to their use of the service offerings. So if you were sued for using VMs or S3 storage by a third-party who had used AWS, you could invoke that clause.
  - jessaustin 11y ago
    That's the intent, but is the language specific enough to limit its application to that?

sirwitti 11y ago

I don't know about the US, but in Europe it's quite possible that these clauses would be ruled invalid.

pascalmemories 11y ago
Even if you ware a lawyer (you don't specify but give what is essentially an, entirely reasonable, opinion on a point of law), that would normally be decided upon during the course of litigation. So, anyone would still be faced with substantial legal costs, even if the ruling was that one particular term was unenforceable. There is a big difference between how the law works in theory and how it works in practice. Especially is one side is Amazon and has, to all intents and purposes, unlimited cash to drag out expensive litigation. Many large companies win like this in practice when, in theory, they have no merit to their case.
- bryanrasmussen 11y ago
  In most of the EU the loser in a case is instructed to pay the court costs of the winner.
  - antsar 11y ago
    What about the indirect costs of being involved in such litigation? For example, missed deals/profit due to one's reduced capacity to work while entangled in a legal mess.
  - AdieuToLogic 11y ago
    > In most of the EU the loser in a case is instructed to pay the court costs of the winner. If only the US civil litigation process worked this way... :-(
rodgerd 11y ago
Pretty sure Amazon can stay solvent longer than I can.

tempodox 11y ago

What on earth does it even mean?

vacri 11y ago

So, a bit more information here: http://www.geekwire.com/2015/amazon-fights-patent-suit-using-little-noticed-clause-in-standard-aws-customer-agreement/ http://www.geekwire.com/2015/amazon-fights-patent-suit-using... An interesting point is that Appistry continued to use AWS services after learning about the clause. This led the Missouri judge to allow transfer of the case to Seattle (AWS hometown), basically doing a "you can't have your cake and eat it, too".

josephagoss 11y ago

> It’s likely that thousands of Amazon customers don’t > realise they are giving away their valuable intellectual > property rights just for the privilege of using AWS; but > realise they should. Does this mean that AWS is allowed to use the IP of any customer hosting their system on AWS? I've built an application on AWS but would not have if this meant handing over all my IP to Amazon. I must be misunderstanding the issue as I doubt any company or person would use AWS if it meant giving up their entire IP. Can someone please explain what I am missing here?

ubernostrum 11y ago
What you're missing is that this is a FUD article. AWS' terms basically come down to "if you use AWS, you lose the right to patent-troll AWS". The article is trying to spin it as "OH NOES NOW YOU GET TEH VIRAL FROM THE EEEEEEEEEEVIL GPL", though I have no idea on what theory they would base a claim that agreeing not to assert against Amazon and its contractors/vendors would somehow constitute GPL'ing your own code.
- bryanrasmussen 11y ago
  I don't believe this to be correct because no court has established what patent-troll means and the contract certainly doesn't say 'patent-troll' so the test of whether it is allowed or not will not be if someone is patent-trolling amazon but whatever a court determines the contract means.
- pdabbadabba 11y ago
  I don't think this is right. The terms of the IP non-assert clause say nothing about patent trolling. What the clause says is actually pretty simple: no customer of AWS services can assert a patent claim against Amazon related to an AWS service that the customer used--and that is equally true whether you have a legitimate patent infringement claim, or if you're trolling. The article's open source point is perhaps a bit tendentious (or underexplained), but, contrary to the impression you convey, it is only a very small part of the article. The bulk of the article raises entirely real issues. Edit: I think the open source issue is this: if an AWS customer uses open source software (or, more simply, if an OSS project is hosted on OSS) how far up the user/employer/vendor/contributor chain does the non-assert clause reach? If I contribute to project X, which is hosted on AWS, do I become a party to the non-assert clause? What about my employer? What if I contribute to the project as part of my employment? I think this concern is probably not too significant (particularly since it only bars someone from asserting a claim related to the AWS service used), but I don't think it's fair to call this FUD, much less to call the whole article FUD because it includes this as an ancillary point.

bryanrasmussen 11y ago

"First is the duration – the provision seems to apply even after a customer stops using AWS. " from what I remember in U.S contract law a permanent contracts are frowned on if they don't give some sort of way of terminating the contract?

iolothebard 11y ago
Agreed, but it doesn't mean you don't have to end up fighting with Amazon in court.

wtbob 11y ago

I'm not a lawyer, but my take on the clause is simple: one can't sue Amazon for IP related to the service AWS is providing. E.g., I couldn't use S3, but then try to hit Amazon with a file-like key-value-store patent. I think I'd still be free to hit Amazon with a web-based online-shopping patent though, since I'm not buying that service from them. Edit: argh, I wish HN would accept underscores for italics.

phkahler 11y ago
>> Edit: argh, I wish HN would accept underscores for italics. Try asterisks around it instead.
the8472 11y ago
What if your IP is the copyright on some open source software and amazon is violating the licence? The clause would prevent you from enforcing the licence if you find out through using AWS that they violate it.
- antsar 11y ago
  Question for legal-minded readers: can this be worked around by having someone else, a non-AWS-user, enforce the license/copyright on one's behalf? Or perhaps simply terminating use of AWS and proceeding to then enforce the claim?
  - biot 11y ago
    The article already clearly covers your second case: > First is the duration – the provision seems to apply even > after a customer stops using AWS. In fact, the text of the agreement states "During and after the Term...".
  - danlindley 11y ago
    "During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us ... any patent infringement or other intellectual property infringement claim regarding any Service Offerings you have used" It would appear that you cannot have someone else enforce this on your behalf.

nickpsecurity 11y ago

Why do they call it the cloud? Because your exclusive I.P. just up and floats away one day. Stay out of the cloud. Invest in cost-efficient IT. Avoid so many issues. I predicted this specific one years back. I'm surprised I haven't heard more of it among cloud vendors.

balls187 11y ago
Let's play a game. How long will it take you to get: 3 webservers 2 databases Across 2 data centers. Starting with nothing but a credit card, (and an email address).
- ceejayoz 11y ago
  You could probably have it up on Hetzner or OVH in a couple hours. Lots of dedicated server hosts with more than one DC, and many give you your server in an hour or two.
  - balls187 11y ago
    For colo, or dedicated/managed hardware?
    - ceejayoz 11y ago
      I'm going off the goalposts in your original question.
      - balls187 11y ago
        Outside of performance, how are hosted dedicated servers different than hosted VPS? Are you trading one cloud provider's feature set for another? You still outsourcing via PaaS, and not actually investing in IT.
        nickpsecurity 11y ago
        Physical isolation, control of whole environment, and more security/reliability/predictability when these are leveraged properly. You also have less legal risk if the FBI decides to kick in that colo's doors as they have in the past and seize shared servers just because one client was on it. I doubt the quantitative risk of this is high but I like risks not existing where possible. And you're never investing in IT if you are doing IaaS or PaaS: you're just paying a third party for a temporary good. Colocation is investing in IT because you own the equipment and what's in it. The other parts are their problem with them having a financial incentive (eg competitiveness) to improve them over time. Cloud can shut down tomorrow and what do you get out of that? If it's my PC with my data, I can get it back from them somehow and people trying to stop that might face criminal charges. A VPS service shutting down means my system probably ceases to exist unless they have specific provisions for the situation that work during bankruptcy. You might know of them since you clearly study the cloud offerings more. I don't so I stay in a low-risk situation.

mcherm 11y ago

Wow... that's interesting. I'll summarize my take. First of all, take the article with a grain of salt. Possible issues brought up by Bart Eppenauer are being raised by the former chief counsel of Microsoft, a direct competitor to AWS (Azure). And the linked article has a somewhat alarmist phrasing. That being said, there appears to be something real here. This contract is one that applies to thousands of businesses -- cloud computing is taking both small business and big business by storm, and AWS has the majority of the business in this area. The clause itself reads like this (retrieved today from http://aws.amazon.com/agreement/ http://aws.amazon.com/agreement/ ): During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service Offerings you have used. Now, I am not a lawyer, so my interpretation could be wrong; even if I WERE a lawyer I would be saying that nothing was certain at least until a court had ruled on a case that depended on this clause. But it appears that this clause is very broad in time (from now onwards), in scope (covers patents as well as "all IP") and in targets (against Amazon OR most anyone else like their customers or business partners). The clause is restricted ONLY by the statement that it applies to a claim about "Service Offerings you have used". Now, my impression would be that this means you can't sue Amazon (or their partners/customers/etc) over IP violations BY THE AWS PRODUCT ITSELF. In other word, if you use AWS you can't then later sue Amazon or their customers saying that AWS itself violates your patent on using a computer remotely (or whatever ridiculous patent you may hold). With this interpretation it is an extremely reasonable provision and should not concern any company involved in normal business. Furthermore, the one case where Amazon has asserted this clause (against Appistry)[1] fit this model. Appistry sued Amazon saying that Amazon violated its patent; Amazon countered that Appistry was using AWS and with this clause had agreed not to sue. That case is still underway. So my evaluation is that this is probably an OK clause. But it certainly skirts the line and you ought to have your lawyer look it over. After that, you will probably ignore what your lawyer says and sign it anyway because Amazon is the giant of cloud computing and you don't have a whole lot of choice. [1] - http://www.geekwire.com/2015/amazon-fights-patent-suit-using-little-noticed-clause-in-standard-aws-customer-agreement/ http://www.geekwire.com/2015/amazon-fights-patent-suit-using...

11y ago

thoman23 11y ago

> I can safely say that I have never seen such a broad IP non-assert provision in a standard form contract. What about Facebook's React license? https://github.com/facebook/react/blob/master/PATENTS https://github.com/facebook/react/blob/master/PATENTS https://news.ycombinator.com/item?id=8985541 https://news.ycombinator.com/item?id=8985541 https://news.ycombinator.com/item?id=9111849 https://news.ycombinator.com/item?id=9111849

vetrom 11y ago
I believe 'standard form contract' was carefully chosen to qualify his statement, so it could sound general, but be exactingly specific. On that note, is there such a thing as a standard contract for web-based service agreements?

Lawtonfogle 11y ago

The simple fix is to make the right to patent infringement assertions one that you cannot sign away so that any contract that includes it is void (at least for that section). Which makes me think it won't ever happen.