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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

#21

Post by phkahler »

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.

>> Edit: argh, I wish HN would accept underscores for italics.

Try asterisks around it instead.

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

#22

Post by the8472 »

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.

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.

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

#23

Post by mcherm »

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/ ):

  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...

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

#24

Post by antsar »

the8472 wrote: post #22
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.

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?

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

#25

Post by antsar »

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.

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.

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

#26

Post by jessaustin »

leereeves wrote: post #5

"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.

IANAL... I wonder if random AMZ customers could use this clause in a case without AMZ's cooperation?

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

#27

Post by biot »

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?

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...".

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

#28

Post by balls187 »

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.

The part I'd like more clairification on, is the claim that by using AWS you cannot assert IP claims against any AWS customer.

That seems exceedingly broad.

As to the FUD:

Conflict of interest. Former Patent Chief at MSFT putting an article out on Legal Issues for the #1 Cloud Provider, and MSFT Competitor, Amazon.

Wonder how much MSFT stock the Author is holding?

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

#29

Post by balls187 »

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).

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

#30

Post by DannyBee »

acdha wrote: post #15
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 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 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).

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