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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

#31

Post by DannyBee »

wtbob wrote: post #18

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.

The scope is much broader than that, actually.

The scope would cover any software they use to provide these services.

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

#32

Post by DannyBee »

mcherm wrote: post #23

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…

"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."

The amount of bad armchair lawyering here is saddening :)

Why do people need to go on impressions?

The agreement "govern(s) your access to and use of the Service Offerings (as defined below)". Hey, looks like they define Service Offerings, below.

So rather than guess or have an impression as to what it means, why don't we look at the definition of service offerings, a defined term in the contract.

  “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.
So there you go, no need to guess or have an impression of what it covers. That is what it covers when it means service offerings.

As for it's okayness -- i'm actually generally in favor of these kinds of clauses. However, this one is a bit too broad. I hope you aren't an open source project who uses AWS, and who AWS uses to provide services in some fashion. Because if you are, congrats, Amazon can do what they want with your software and you can't stop them (ie violate the GPL, whatever).

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

#33

Post by ceejayoz »

balls187 wrote: post #29
nickpsecurity wrote: post #19

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.

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).

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.

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

#34

Post by thoman23 » 

  > 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://news.ycombinator.com/item?id=8985541

https://news.ycombinator.com/item?id=9111849

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

#35

Post by danlindley »

antsar wrote: post #24
the8472 wrote: post #22

Earlier quoted context omitted.

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.

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?

"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.

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

#36

Post by balls187 »

ceejayoz wrote: post #33
balls187 wrote: post #29

Earlier quoted context omitted.

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).

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.

For colo, or dedicated/managed hardware?

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

#38

Post by AdieuToLogic »

bryanrasmussen wrote: post #20
pascalmemories wrote: post #17

Earlier quoted context omitted.

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.

> 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... :-(

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

#39

Post by acdha »

DannyBee wrote: post #30
acdha wrote: post #15

Earlier quoted context omitted.

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 o…

"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…

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.

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

#40

Post by DannyBee »

acdha wrote: post #39
DannyBee wrote: post #30

Earlier quoted context omitted.

"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…

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. “Ser…

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)
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