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

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

#11

Post by bryanrasmussen »

ubernostrum wrote: post #10
josephagoss wrote: post #9

> 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…

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.

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.

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

#12

Post by bryanrasmussen »

"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?

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

#13

Post by belorn »

josephagoss wrote: post #9

> 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…

The clause says you can not enforce any patents, copyrighted works or trademarks that is a part of an AWS service which you have used or are using. The service do not include code which you have brought to it.

In the extreme case that would allow amazon to steal code from customers and put that as a part of a customers currently running services, thus washing away the legal restrictions that copyright, patents and trademarks would otherwise create. I doubt that it would happen in practice since its a bit obvious scheme which would disregard authors intent of using AWS, and judges seems to have a history of following authors intent rather than legal loopholes.

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

#14

Post by iolothebard »

bryanrasmussen wrote: post #12

"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?

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

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

#15

Post by acdha »

devnonymous wrote: post #2

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 ?…

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... 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-20...) telling businesses that he's deeply concerned about their ability to hire people like them to bring expensive IP lawsuits.

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

#16

Post by pdabbadabba »

ubernostrum wrote: post #10
josephagoss wrote: post #9

> 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…

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.

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.

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

#17

Post by pascalmemories »

sirwitti wrote: post #6

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

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.

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

#18

Post by wtbob »

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.

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

#19

Post by nickpsecurity »

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.

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

#20

Post by bryanrasmussen »

pascalmemories wrote: post #17
sirwitti wrote: post #6

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

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. Esp…

In most of the EU the loser in a case is instructed to pay the court costs of the winner.
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